On February 8, 2014, USARK filed USARK’s Response to the Defendants’ Motion to Dismiss USARK’s Complaint. Also attached to the filing were Exhibits, which include a number of declarations (affidavits) of individuals, including USARK president, Philip Goss as well as members and supporters of USARK. The Response filing date was one day past the due date.
It’s important to understand the procedural posture. A motion to dismiss challenges the legal sufficiency of a claim. It does not consider the merits of a case. Here, the government challenged USARK’s complaint based on standing, a statute of limitations argument, and an argument that one count is duplicative of prior counts.
If USARK loses the motion to dismiss, it is nearly a certainty that the Court will give USARK an opportunity to amend its complaint in order to meet the federal pleading requirements. Losing the motion to dismiss, if it happens, is not at all equivalent to losing the case, unless it is dismissed without leave to amend. The court will conduct a hearing on the Motion to Dismiss before it rules.
In either case, winning or losing the motion to dismiss, does not in any way forecast the outcome of this lawsuit. (Not unless the complaint is dismissed without leave to amend.)
USARK’s Response takes a fair run at the legal substance of the Motion to Dismiss and the exhibits attached to it include factual allegations which should be sufficient for the complaint (or an amended complaint) to ultimately survive this volley. Including some of those allegations in the original complaint may have avoided the time and expense of briefing and arguing the present motion to dismiss.
The bigger question that is raised by the Response is USARK’s allegations that USARK “is dedicated to conservation through captive propagation” and “espouses the ideal of … supporting programs that ensure the preservation of threatened and endangered species around the world.” (Response at pp. 3-4.)
USARK is organized as a 501(c)(6) trade organization, not a 501(c)(3) conservation organization. Historically, it has not been involved in “supporting programs that ensure the preservation of threatened and endangered species around the world.” If it cannot provide evidence in support of that, it will lose tremendous credibility with the court.
Also suspect are some of the claims USARK puts forth regarding the support of certain individuals and organizations, which are tenuous at best.
The next step: hearing on the Motion to Dismiss.