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

By Andrine Redsteer - Updated November 28, 2018
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In federal courts, the defendants can file motions to dismiss and either side can submit motions for summary judgment. These procedures challenge the merits of a case, even before the case goes to trial. Motions to dismiss and motions for summary judgment are similar in that both are pretrial resolutions. If successful, both types of motions can save participating parties from the emotional and financial struggles of going to trial. However, both plaintiffs and defendants must understand the differences before moving forward.

Rules of Civil Procedure

States set their own rules for these procedures, which may or may not follow federal guidelines. Federal courts follow the Federal Rules of Civil Procedure. The FRCP governs 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 someone in a case has to file amended pleadings and motions and how long parties have to respond to motions and pleadings, among other things.

Motions to Dismiss

In federal courts, 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. While these motions have their places, they are far from the most common reasons to file a motion for dismissal.

The Most Common Dismissal Motion

Rule 12(b)(6) is commonly used to dismiss a lawsuit before the trial commences; it allows a defendant to file a motion to dismiss for "failure to state a claim upon which relief can be granted." This is the most common type of dismissal motion, and lawyers often refer to it as a demurrer. In this motion, defendants say that even if the plaintiff's claims were true, there would be no legal recourse.

In response to a 12(b)(6) motion, the judge may dismiss the case outright, deny the motion and force the defendant to answer the complaint or order the plaintiff to amend the complaint. If the judge chooses the latter option, the plaintiff will have a given amount of time to make the case more substantial. If the plaintiff does not do so in that timeframe, the judge dismisses the case.

Motions for Summary Judgment

In federal courts, summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Summary judgments allow the motioning party to say that every piece of evidence falls clearly in her favor. 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 no material facts about the case are in dispute.

For example, consider a lawsuit over a breach of contract. If the plaintiff can clearly prove that a contract between the two parties existed, that the defendant broke a clause of that contract, the defense has no evidence to the contrary and the plaintiff suffered losses because of that breach, the judge may rule in favor of a summary judgment.

Both plaintiffs and defendants can use summary judgment motions. Plaintiffs with strong evidence and clear damages may use these motions to speed things up. If the case is robust enough, they can win. Even if they don't, the defendant shows his hand before the trial even begins and the judge can limit the scope of the trial.

File the Correct Motion for Your Case

One significant difference between the two types of motions is who has the burden of proof and how heavy that burden is. For example, under a motion to dismiss under Rule 12(b)(6) in federal court, the plaintiff does not have a heavy burden to avoid dismissal of the case. The plaintiff need not prove any facts; he merely needs to convince the judge that the facts he set forth in his complaint are sufficient to state a cause of action, if they are taken as true. The only question posed by this motion is whether the plaintiff's complaint states a legally sufficient claim.

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 disputed material facts and the moving party is entitled to judgment based on those facts, he will grant the motion.

Another important difference is who can file the motion. Both plaintiffs and defendants can file summary judgment motions, but motions to dismiss are only for defendants.

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.

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