> Regardless, argument 1 must not be bullet proof, because their motion to dismiss was rejected
This shows a misunderstanding of what the motion to dismiss adjudicates. Argument 1 cannot win on a motion to dismiss, because it's an argument over the facts.
Argument 1 is absolutely irrelevant in a motion to dismiss. Argument 2 is the only argument you can raise in a motion to dismiss.
At the motion to dismiss stage you are only arguing questions of the law. You assume the facts as alleged by the plaintiff in the complaint, and then state that given those facts there is still no legal issue that can be remedied.
This shows a misunderstanding of what the motion to dismiss adjudicates. Argument 1 cannot win on a motion to dismiss, because it's an argument over the facts.
Argument 1 is absolutely irrelevant in a motion to dismiss. Argument 2 is the only argument you can raise in a motion to dismiss.
At the motion to dismiss stage you are only arguing questions of the law. You assume the facts as alleged by the plaintiff in the complaint, and then state that given those facts there is still no legal issue that can be remedied.