Suppose the plaintiff has filed a trespass/conversion tort in federal court, but the chattel they are asserting a right to is not actually theirs. I understand that in some sense, and to some extent (I'm not a lawyer so not sure exactly where that extent is), the claims of the plaintiff must be taken as true for the pre-trial phase.

In this case, the claim to the chattel is highly dubious, even outright fallacious in my opinion. Is the motion to dismiss a fruitful place to argue such? With the intent to have the case dismissed before going to trial, I mean.

Thanks a ton!

2 Answers 2


Usually (in the absence of a default judgment or a settlement in the case) the only way this could be done is in motion for summary judgment, and then, only if there was somehow irrefutable evidence of ownership (e.g. a certificate of title to a car supported by an affidavit that no truthful counter-affidavit can overcome).

Often, filing a motion for summary judgment would be deferred until statements made by key witnesses under oath in depositions or written discovery responses preclude a viable counterargument.

Presumably the operative complaint or counterclaim or cross-claim asserting the treaspass/conversion cause of action would assert that the person bringing the claim owned the relevant property and that would be enough to survive a motion to dismiss.

There are similar claims involving property rights where an early evidentiary hearing is possible:

  • a trespass action seeking injunctive relief (such as to exclude someone from chattels like an RV) including a preliminary injunction and/or temporary restraining order, or

  • a replevin action (a.k.a. claim and delivery action) seeking physical possession of tangible personal property.

But, these remedies are not available in a claim seeking only money damages (e.g. if the property in question was destroyed), and the early evidentiary hearing would provide only preliminary relief pending a full hearing on the merits. The early hearing would not provide a final resolution of the claims in the case (although often a defeat at this stage would cause a defendant to abandon their case).

Generally speaking, the delay from filing to trial in federal court in a civil case such as this one is likely to be particularly long, compared to state courts.

  • 1
    Thanks! Here there is a prayer for injunctive relief (is that the right way to put it?). The chattel is a social media page, and there's something at least close to "irrefutable evidence" that the plaintiffs don't own it in the relevant sense: An e-mail from a representative of the plaintiff in their official capacity acknowledging that the account isn't theirs. I was wanting to get it kicked down to state court because IMO it's a SLAPP. The idea is here: law.stackexchange.com/questions/71058/… Aug 25, 2021 at 5:43
  • @skeptopotamus FYI, while a social media page is intangible personal property, it is not chattel. Chattel is the tangible personal property.
    – ohwilleke
    Aug 25, 2021 at 19:09
  • I hope you're right! But they cite some previous cases with the opposite opinion: Salonclick, 2017 U.S. Dist. at *10–12, as well as Synopsys Inc. v. Ubiquiti Networks (N.D. Cal. 2018) and also Intel Corp. v. Hamidi (2003). They describe the chattel as their "possessory interest" in the social media site's "computer network." This is the chattel they seek injunctive relief for in order to file in federal court (they have a history of avoiding state courts where the state has anti-SLAPP laws). Basically this was an internet fight that spilled over into the courts. Aug 25, 2021 at 21:16

Generally a motion to dismiss makes the argument that even if the other side's claims are all true, there is no legal case to answer. Thus it is not a vehicle for asserting factual claims contrary to those of the other side.

A defendant could include in the pleadings factual claims which, if proved, lead to the conclusion that the property at issue does not properly belong top the plaintiff, and thus that trespassing on it, or converting it, is not a violation of the plaintiff's rights. If this is done, the plaintiff will have to admit or deny such claims, and may need to provide outlines of evidence supporting a denial. That may help in developing the case at the trial phase, but unless the plaintiff admits those facts, probably will not lead to a decision in the pre-trial phase.


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