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Innovative Motion Practice Secures Dismissal of Claims Against Fortune 500 Financial Services Company

Case Study

Innovative Motion Practice Secures Dismissal of Claims Against Fortune 500 Financial Services Company

June 4, 2020
John M. McConnell

In a recent case initially filed in the Superior Court of New Jersey, attorneys in Goldberg Segalla’s Commercial Litigation and General Liability practices leveraged innovative and aggressive motion practice to win a rare dismissal with prejudice of all claims against a Fortune 500 financial services company.

In this complex lawsuit, which sits at the crossroads of business and commercial, personal injury, and bankruptcy law, the plaintiff claimed she was injured while walking on the sidewalk adjacent to a foreclosed residential property. Goldberg Segalla partner John M. McConnell and associate David J. Coppola represented the Fortune 500 financial services company that merely held the mortgage on the foreclosed property, but did not possess it. Rather, the property was possessed by the co-defendant mortgagor at all relevant times. However, the plaintiff brought suit against both the mortgagor and our client claiming negligence, arguing that our client was a mortgagee “in-possession” of the property and therefore had a duty to make sure that the conditions of the sidewalk adjacent to it were safe.

After removing the case to the U.S. District Court for the District of New Jersey, John and David swiftly arrived at a strategy centered on filing a 12(b)(6) motion to dismiss. Because their client was merely an “out of possession” mortgagee, the motion to dismiss would be based on the fact that the client, as merely an “out of possession” mortgagee, had no duty as a matter of law to prevent against plaintiff’s claimed incident on the adjacent sidewalk. However, motions to dismiss under Rule 12(b)(6) are difficult to win for several reasons, as oftentimes courts may rely only on limited documentation, including the pleadings and certain public documents that relate to the pleadings, in order to decide their outcome. Thus, in order to make a successful motion, John and David needed to investigate what public records were available to help them show that their client was not “in possession” of the property. Persistence helps, and with thorough investigation and research, John and David were able to find a bankruptcy schedule for the co-defendant “mortgagor in possession,” which showed that at all relevant times, including on the date of the incident, the mortgagor was not only “in possession” of the property, but was renting it out to third parties. The information showing that the co-defendant mortgagor was renting out the property at the time of the accident was, importantly, certified as true by the co-defendant mortgagor on his bankruptcy schedule.

John and David included the co-defendant mortgagor’s bankruptcy schedule as a publicly available record in its motion to dismiss to show that it was essentially a legal impossibility that its client could have been “in possession” of the property at all relevant times. After receiving Goldberg Segalla’s motion to dismiss, as well as a Rule 11 Sanctions letter, plaintiff’s counsel agreed to dismiss all claims against our client, with prejudice. While early dispositive motion practice is not always successful, this result demonstrates Goldberg Segalla’s commitment to achieve cost-effective and favorable resolutions for clients, relying on creativity, innovation, and superior advocacy, and always aiming to limit fees and costs to the client—in this case not only before trial, but even long before completing discovery.



With a roster stacked with seasoned litigators and nationally recognized authorities in a number of critical legal disciplines, Goldberg Segalla brings exceptional strength and savvy to the defense of a wide range of liability claims. Our attorneys have a wealth of experience defending companies of all sizes in various industries, along with municipalities, school districts, and other public entities, in a broad spectrum of matters.

We pride ourselves on the aggressive and cost-efficient manner in which we defend all claims. Our trial record and commitment to early dispositive motions is our hallmark of success. In matters of liability, we employ creative settlement resolutions and resort to alternative dispute resolution (ADR) wherever possible.