Difference Between a Motion to Dismiss & a Motion for Summary Judgment

By Andrine Redsteer

Motions to dismiss and motions for summary judgment are governed by the Federal Rules of Civil Procedure in federal courts. These motions are devices used by defendants to challenge the merits of a plaintiff's case, even before the case goes to trial. Motions to dismiss and motions for summary judgment are similar in that both are pretrial resolutions. However, the motions are also fundamentally different.

Federal Rules of Civil Procedure

Each state has its own rules of civil procedure; however, the Federal Rules of Civil Procedure have been adopted by states with minor variations. The rules of civil procedure govern venue, subject-matter jurisdiction, service of process, pleadings and motions. Rules of civil procedure also govern cross-claims, counterclaims and joinder of parties to civil actions. The rules dictate how long a plaintiff has to file amended pleadings and motions and how long a defendant has to respond.

Motions to Dismiss

Motions to dismiss are governed by Rule 12(b) of the Federal Rules of Civil Procedure. According to Rule 12(b), a defendant may file a motion to dismiss for a number of reasons. Rule 12(b)(1) allows a defendant to file a motion for lack of subject-matter jurisdiction. Rule(b)(5) gives a defendant the opportunity to file a motion for insufficient service of process, meaning the defendant believes he was served the plaintiff's complaint improperly. Rule 12(b)(6) is commonly used to dismiss a lawsuit before it commences; it allows a defendant the right to file a motion to dismiss for "failure to state a claim upon which relief can be granted."

Summary Judgment

Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is meant to resolve a case where a plaintiff meets the minimal burden of pleading the elements of a claim, but is unable to prove one or more of those elements. A court might enter summary judgment in favor of either party without a trial. However, a court can only enter summary judgment if the evidence demonstrates that "there are no disputed issues of material fact to be tried."

The Difference

Under a Rule 12(b)(6) motion, the plaintiff does not have a heavy burden in avoiding dismissal of the case. The plaintiff need not prove any facts, as long as the court infers he is alleging elements of a proper claim. The only question posed by this motion is whether the plaintiff's complaint states a legally sufficient claim. Thus, the court does not consider anything else when deciding the motion. As long as the plaintiff has a legally sufficient claim in which there is a genuine dispute, it is a jury's responsibility to resolve it. However, under a motion for summary judgment, it is the judge's role to determine whether the opposing party's evidence reveals a factual dispute. If after looking at the evidence, a judge determines there are no genuine issues in dispute, he will grant the motion.

About the Author

Andrine Redsteer's writing on tribal gaming has been published in "The Guardian" and she continues to write about reservation economic development. Redsteer holds a Bachelor of Arts in history from the University of Washington, a Master of Arts in Native American studies from Montana State University and a Juris Doctor from Seattle University School of Law.