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7. Is the court likely to grant the motion?
The truck driver has moved to dismiss the action for failure to state a claim, arguing that the complaint lacks sufficient detail.
A pedestrian was struck in a crosswalk by a truck and severely injured. The pedestrian brought a federal diversity action against the driver of the truck, alleging the following in the complaint: «On January 15, 2016, on Broad Street in City A, located in State B, the defendant negligently drove a motor vehicle, striking the plaintiff. As a result, the plaintiff was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $100, 000.»
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B is incorrect. The pedestrian may survive the motion to dismiss because the facts in his complaint if proven, set out a plausible negligence claim. The fact that the pedestrian has had no opportunity for discovery is irrelevant.
C is incorrect. The current pleading standard requires complaints to contain sufficient facts to state a claim that is «plausible on its face.» Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). «Probable entitlement to relief» is a higher standard and is used in situations where preliminary injunctions are sought, which is not the case here.
D is incorrect. Under federal pleadings standards, including a legal conclusion in a pleading does not make the pleading defective. Federal Rule of Civil Procedure 8(a) requires «a short and plain statement of the claim showing that the pleader is entitled to relief.»