Cannabis Litigation: How Effective Are Motions to Dismiss?

Last month, I wrote this post on the latest development in the trademark infringement lawsuit filed by Veritas Fine Cannabis (“VFC”) against Veritas Farms. Unfortunately for VFC, Magistrate Judge Michael E. Hegarty had issued a recommended order that the Court grant Veritas Farms’ motion to dismiss – and to dismiss the claims with prejudice (meaning, VFC cannot amend or try to bring these claims again).

Since then, both VFC and Veritas Farms have filed responses, and VFC’s primary argument is that it should be allowed to amend its claims and get a second shot. This got me thinking about an issue that often comes up at the very beginning of many cannabis lawsuits we see: should the defendant file a motion to dismiss?

Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss. Quoting Judge Hegarty:

The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency of the plaintiff’s complaint. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Plausibility, in the context of a motion to dismiss, means that the plaintiff

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