Conservatively, 134,000,000% of 12(b)(6) motions request dismissal with prejudice. After all, no one wants to win a motion only to start a similar, but slightly harder round of briefing, when the plaintiff inevitably does file a modestly improved complaint. However, it tends to be a pretty big life to actually secure a dismissal with prejudice when the plaintiff has not already tried and fail to fix the complaint's problems.
It's occurred to me in the past that it would be nice to have a middle ground between a dismissal with and without prejudice. Something for claims that haven't already proven themselves beyond repair with serial amendments, but that are marginal enough that they are unlikely to be cured.
Judge Stark ordered just such a middle way this week in his latest 101 day opinion in BE Technology, LLC v. Twitter, Inc., C.A. No. 20-621-LPS, D.I. 26 (D. Del. Dec. 15, 2020). Judge Stark found the patent ineligible at step 1 of the Alice analysis, and further opined (without ruling) that it did not appear the patent as described in the complaint would pass step 2 of of the analysis either. Id. at 14-15. He did note, however, that plaintiff had submitted an expert declaration with its briefing that he had not considered because it was not referenced in the complaint, and suggested that there was some chance the deficiencies could be cured if some of the arguments made in the declaration were incorporated into the complaint. Id.
Rather than simply dismiss the complaint with leave, however, he put the onus on the Plaintiff required to formally move for leave to file an amended complaint stating:
[Plaintiff has] to go first. [It has] to put together the proposed amended complaint and to file the motion, and [it has] to file the opening letter brief explaining why, given what I have said about the patent, given where we are with the procedural history of this case, given the concerns of Rule 15, [and] given the governing law on motions to amend, why [it] should be permitted in fact to press an amended complaint, and then [Defendants will have their] chance to respond.
Id. at 16.
He further cautioned the plaintiffs that fees would be on the table if their proposed amended complaint should have the same failings as the current one:
If [P]laintiff does choose to proceed with an amended complaint and if [D]efendants do defeat that motion with grounds that have been articulated already and that we all have [been] prepared to address, it may be that [D]efendants will have a persuasive argument in that circumstance that they should be reimbursed for their fees for opposing the motion to amend, or maybe event that they may have a meritorious motion ultimately under Section 285 to declare this case is exceptional.
This strikes me as a potentially potent remedy to suggest in cases where outright dismissal with prejudice seems unlikely, and I expect we may see it appear in a few proposed orders in the coming months.