If a plaintiff brings a civil suit against another party (aka say the Gorilla glue hair suit), what role does the court play in whether to permit a trial, how has that role changed over the decades, and are there large inconsistencies between federal judicial districts? Federal, as I believe this type of suit would be brought there.

I understand and know that a suit can be thrown out, but how far can a court judge a case before trial? And do lawyers pick certain courts where they believe their odds are better?

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    @Studoku From the top answer, no. I am more interested how courts handle letting a suit go to trial and be decided, versus blocking the suit to ever be brought to trial, and whether this is consistent throughout the district courts?
    – paulj
    Feb 12, 2021 at 14:46
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    Nothing in this question seems actually related to the incident in question. Is that actually relevant to your question?
    – Ryan M
    Feb 12, 2021 at 15:28
  • The linked question does not address the issues in nthis question. It is not a duplicate. Feb 12, 2021 at 17:09
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    FWIW, the "Gorilla glue hair suit" doesn't seem to be an actual thing. TMZ reported that Tessica Brown was planning to sue, but she has denied that (relevant part starts around 9:10).
    – G_B
    Feb 13, 2021 at 2:28

2 Answers 2


American courts generally go through two main stages of pretrial review.

First, the parties file their initial pleadings. The plaintiff files a complaint laying out his allegations and identifying the laws violated, and the defendant files an answer saying what allegations are true and which are not. After this happens, the court will entertain either a motion to dismiss or a motion for judgment on the pleadings under Rule 12, which asks the court to throw out the case because -- even if everything the plaintiff alleges is true -- the defendant still can't be held liable for anything.

If the plaintiff makes it past that stage, the court will let the parties move forward with discovery, where the parties exchange evidence, take depositions, etc. Once that process is over, the defendant will typically file a motion for summary judgment under Rule 56, which asks the court to throw out the case because -- given all the evidence available -- a reasonable jury could not return a verdict for the plaintiff.

Broadly speaking, the idea for both of these motions is to ask whether the case presents a question of law or a question of fact. If an employer defendant in an age-discrimination case denies firing the plaintiff, but the plaintiff admits he is only 25 years old, the court can simply end the case because that plaintiff is too young to win an age-discrimination case, as a matter of law. But if the plaintiff is 65 and both parties can point to some evidence supporting their version of what happened, there's a factual dispute that a judge needs to let a jury decide.

So as long as there are still important, unresolved factual questions, it is generally going to be set for trial.

The precise standards for adjudicating these types of motions have evolved over time, but generally speaking, they have existed for centuries.

At this point, there is very little difference among the circuits in how these motions are handled. The standards are laid out in the Federal Rules of Civil Procedure, there has been quite a bit of explicit interpretation by the Supreme Court, and these motions are so routine that every judge is very familiar with the standards.

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    FWIW, while there is very little difference in how Rule 56 motions for summary judgment or the equivalent are handled at both the state and federal level (and the view that this would be a federal case in the OP is likely wrong FWIW), the way that motions to dismiss are handled varies a lot between federal practice (where the Twombly standard applies) and state court in many states (some of which have a different or more lenient standard). Federal courts dismiss some cases that rely on pre-trial discovery for key evidence that many states don't, a possible issue in product liability actions.
    – ohwilleke
    Feb 12, 2021 at 18:35
  • @ohwilleke Thank you for stating not a federal case.
    – paulj
    Feb 12, 2021 at 18:59
  • So if my policy is to only hire people of ages 20–24 (or people of age 26+), that's not age discrimination? Feb 13, 2021 at 1:57
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    @PaŭloEbermann under the ADEA you can't deny employment to someone 40+ simply because of their age unless there's a reasonable need for it. It doesn't apply to younger workers.
    – gormadoc
    Feb 13, 2021 at 2:05

If a plaintiff brings a civil suit against another party (aka say the Gorilla glue hair suit), what role does the court play in whether to permit a trial, how has that role changed over the decades, and are there large inconsistencies between federal judicial districts? Federal, as I believe this type of suit would be brought there.

I understand and know that a suit can be thrown out, but how far can a court judge a case before trial? And do lawyers pick certain courts where they believe their odds are better?

In the Gorilla Glue case that possible plaintiff resides and the injury occurred in Louisiana. The Gorilla Glue Company is based in Ohio.

There are two basic plausible claims: a product liability claim against the manufacturer, and a breach of warranty claim against whomever sold the good to the customer. If sued, the immediate retail seller could bring in the person who sold it to them (perhaps a wholesaler) who could in turn bring in the person who sold it to them (perhaps a manufacturer), in a chain of breach of warranty claims.

Depending upon the facts, one or the other defendant may have deeper pockets, and the elements of the legal claim for breach of warranty and for products liability aren't precisely the same. Neither claim requires a showing of true negligence on the part of a defendant, just a showing that the product was defective or that there was a failure to warn. But that doesn't mean that establishing liability is easier in either case either.

Also, while the plaintiff's claims wouldn't be negligence claims, the concept of "comparative fault" under Louisiana or Ohio law (a choice of law question for the trial court to decide as to particular issues) means that sufficient negligence of a plaintiff could overcome the suit as well. Usually though, negligence issues are reserved for a jury and not something for a judge to decide.

This case there would be two possible state court forums:

  • The state court of general jurisdiction where the injury occurred which is in Louisiana.

  • The state court of general jurisdiction where the defendant is located, which is in Hamilton County, Ohio.

Since the plaintiff and Gorilla Glue maker defendant are from different states, if they are the only defendants, the suit could also be brought in federal court in either location in the first place, or could be removed to federal court from whichever state court it is brought in (assuming that the Louisiana court has jurisdiction over the Gorilla Glue maker, which it probably would but isn't entirely certain).

However, the store in Louisiana that sold the product could also be sued for breach of warranty, and if that was done in a Louisiana state court, the case could not be removed to federal court by the Ohio based defendant since there is not "complete diversity of citizenship" and the Plaintiff's case do not arise under federal law.

Bringing the case in Louisiana would be more convenient for the plaintiff. But procedural and substantive law issues factor into choice of forum for the plaintiff as well. Louisiana under the the Louisiana Products Liability Act has a doctrine known as the reasonably anticipated use doctrine that is more restrictive than many other states in its product liability jurisprudence. So, the Plaintiff may prefer to sue in Ohio and to apply Ohio law where the substantive law may be more favorable, even if it means foregoing a chance to sue the retail store that sold the product. Even if an Ohio court applied Louisiana, rather than Ohio law, getting access to the internal records of the Gorilla Glue company to determine what the company actually anticipated in terms of user use of the product could be critical.

As explained by @bdb484 there are two stages at which a case might be thrown out by a judge prior to trial (and more than 90% of cases settle prior to trial). One is a motion to dismiss, governed by Rule 12 in federal court, and the other is a motion for summary judgment, governed by Rule 56 in federal court.

The standard for a motion for summary judgment is essentially the same in state and federal court. If a defendant can show by affidavit in a motion brought after some opportunity for pre-trial compulsory exchange of documents and depositions that the facts necessary for that defendant to win under the law are present, and the other side can't present sworn evidence or authenticated documents contradicting that argument, then the case against that defendant is dismissed. But the facts that are established must be viewed in a light most favorable to the party defending the motion for summary judgment.

The earlier stage, a motion to dismiss under Rule 12 in federal practice, shows more variation between state and federal practice.

A motion to dismiss is a "so what?" motion. If everything said in the complaint is true, does the defendant still win (jurisdiction can also be disputed at this stage). But the standard in federal court under a fairly recently announced standard known as Twombly changing a long standing interpretation of Rule 12, is that a case can be dismissed if the complaint doesn't state a "plausible claim for relief" based upon the non-conclusory facts of the complaint asserted to be true and not merely speculated to be true based upon "information and belief". As this law review article explains:

Conley v. Gibson, decided in 1957, required only that the complaint allege facts that could conceivably support a claim for relief—a lenient notice-pleading standard that allowed marginal lawsuits to survive to later stages of litigation in the hope that later-discovered facts would salvage the claim (355 U.S. 41 (1957)). A half century later, in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Court announced a more demanding approach—plausibility pleading—which requires the plaintiff to allege facts that give rise to a plausible entitlement to relief (550 U.S. 544 (2007); 556 U.S. 662 (2009)).

Since a Rule 12 motion is decided before the parties engage in the mandatory exchange of documents and depositions of witnesses prior to trial called discovery, the plaintiff often lacks inside information that the other party has which is damaging to their case and which the plaintiff can't get without discovery or a mole in the other side's organization. This is a big deal in a product liability case where internal memos might show an awareness of a risk of a problem like the one that happened.

For decades prior to the Twombly case, a motion to dismiss would be granted only if it was impossible that the someone could win the case if the allegations of the Complaint were true, even if some of those facts were based upon guesswork of things that might be true.

Some states retain the older standard, or some other standard entirely, or have ways that a plaintiff can compel information from the other side prior to filing suit.

Ohio's state courts use the old and more lenient motion to dismiss standard, which makes the Ohio state court potentially an attractive forum if it could be secured. But it would be harder to avoid diversity of citizenship in Ohio so it would probably be able to remove the case to federal court under 28 U.S.C. § 1332 and 28 U.S.C. § 1441, even though if it was an Ohio company sued in Ohio state court. This is because the Ohio court wouldn't have jurisdiction over a retail vender of the product. (Another way to avoid diversity of citizenship jurisdiction and federal court would be to limit the dollar amount of the claim to under $75,000.)

Procedurally Louisiana with roots in French rather than English law as a foundation, but influenced by contract with other U.S. states for a couple of centuries, has the most divergent civil procedure rules in the U.S., so it is hard for me as a non-Louisiana lawyer, to evaluate the procedural issues in that forum.

  • Could it still be "breach of warranty" if the product worked really well ?
    – Criggie
    Feb 13, 2021 at 3:01
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    @Criggie Simply because something accomplished one of its desired properties doesn't mean it didn't fail in another. A car is intended to get you to your destination safely. If your brakes go out, you may reach your destination, but not safely. A better defense is that there was no warranty of the glue's safety when used on a human being. Feb 14, 2021 at 2:30
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    @Criggie The modern product liability tort that runs direct to the manufacturer has its roots in much older vendor-purchaser warranty law. The California Supreme Court at some point decided to cut out the middle man. So the two forms of liability heavily overlap.
    – ohwilleke
    Feb 15, 2021 at 19:00

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