Motion for Summary Judgment vs Motion to Dismiss

Typically, a defendant has two opportunities to get rid of a lawsuit before it goes to trial.  The first is a motion to dismiss, which is filed shortly after a complaint is filed.  The second is a motion for summary judgment, typically filed after discovery is completed.

A motion to dismiss essentially asserts that the plaintiff has failed to state a viable cause of action.  Typical examples are where a plaintiff fails to (or cannot) set forth all of the necessary elements of a claim or misses the statute of limitations.

The motion for summary judgment is typically filed after the parties have completed discovery. For instance, depositions, interrogatories, document demands, among other documents. A motion for summary judgment will be granted where there is no genuine issue as to any material fact.  If there is a dispute as to any material fact, the court is bound to side with the “non-moving party” (typically the plaintiff) on any such dispute.  Also, the court doesn’t make any judgments about who is more believable – that is left to the jury.

A defendant’s chances of winning a motion for summary judgment are considerably greater than on a motion to dismiss.  If the motion for summary judgment fails, the complaint survives and the case proceeds to trial.


As part of the procedure in civil cases, both parties have the capability of making requests for court consideration. Motions are formal requests submitted to a judge to serve a variety of purposes. Examples include requests to continue (postpone) the proceedings, that an existing court order be modified, for case dismissal, and many others. The majority of these requests must be done in writing, unless during a hearing or trial, and notice is provided to the opposing party and/or their legal counsel. Motions typically include a brief summary of points which support the request. Two common types include motions to dismiss (MTD) and motions for summary judgement (MSJ), both request that a case be disposed, or terminated, but are quite different.

Motion for summary judgment

Summary judgments are addressed in Rule 56 in the Federal Rules of Civil Procedure. They are motions by either party, the movant, to dispose of a claim by judgement in their favor, since no genuine disagreement exists to any material fact. They are accompanied by a factual supportive statement(s) indicating a claim lacks viable evidence, or that the opposing party is unable to produce evidence that is admissible to support it. Courts generally discourage lengthy exhibits accompanying motions, preferring rather that they are limited to the essentials, in a brief format. A motion for summary judgment avoids furthering the case to trial since the facts indicate what the outcome will be.

More information on motion for summary judgment

Motion for summary judgment is a request that a court rules on a case even if the case hasn’t been to trial. The benefit of motions for summary judgment is that they save clients a ton of money, especially in civil litigation outside of family law cases. In the family law arena, their usage is fairly restricted to parentage cases where one party disputes which father belongs to the child. In these cases, a motion for summary judgement is brought to have the court order or “declare” that the father is, indeed, the father. This usually occur after a DNA test of both the child and the father. These motions are rarely contested; however, it does happen on occasion. Usually, if DNA is disputed by the mother, she has to get someone else declared the father.  If the father is disputing the DNA, he probably has something mentally wrong with him or a serious need to try to avoid child support at all costs. The opportunity to lodge a motion arises when there is “no genuine issue of material fact.” What this means is that there is no real basis for the parties to disagree on what the facts in the case are. In civil litigation cases, this isn’t always true, which means that one party does dispute the facts.

When that happens, the moving party usually tries to claim that the fact that the responding party is disputing isn’t “material.” Once the triggering point is met, then the moving party is entitled to “judgment as a matter of law.” Which usually means that they should win. Moving back to family law cases, we would see such motions when paternity has been established, and we want the court to order Mr. X is the father. Outside of those limited circumstances, motions for summary judgment are fairly rare in family law cases.

Contents of a motion for summary judgment

A case can be disposed of prior to trial when there is no evidence for the claims alleged or when there is no issue of material fact, and the movant is entitled to judgement as a matter of law. When a case is disposed for either of those reasons, it is called a summary judgment. Governed by TRCP 166a, there are two types, the traditional motion for summary judgment and the no evidence summary judgment. Tex. R. Civ. P. 166a.

According to the American Supreme Court, a motion for summary judgment is appropriate if reasonable people agree with the conclusion based on the evidence of the case. The court also advised appellate courts not to “disregard the evidence supporting the motion,” also adding that “although a reviewing court must consider all the motion for summary judgment evidence on file, in some cases that review will effectively be restricted to the evidence contrary to the motion.” City of Keller v. Wilson, 168 S.W.3d 816, 824-8

Motion for Dismissal

They are addressed in Rule 12 of the Federal Rules of Civil Procedure and typically generated by defendants early in a case’s development. They seek to expose legal deficiencies within claims. Common reasons for dismissal include that the defendant was improperly served with the complaint, or for a failure to state a claim for which relief could be granted. For example, in personal injury actions, plaintiffs must detail that they were injured from the opposing party’s negligence. If the pleading is unable to determine this, the grounds for granting a dismissal may exist.

A motion to dismiss can be filed by either party in a case at any time during the proceedings, but it’s usually filed by a defendant at the beginning of a lawsuit. This type of motion may focus on the facts and allegations in the complaint and any documents – called “exhibits” – that are submitted in support of the complaint.

A motion to dismiss is filed when a party believes that the complaint is legally invalid, which can be based on a variety of grounds. For example, before disgraced comedian Bill Cosby’s retrial, his defense team filed a motion to dismiss arguing that the sexual assault alleged in the criminal complaint had happened outside of the “statute of limitations.” However, the judge dismissed the motion stating that the argument over the date of the alleged assault was a disputed issue for trial and could not be decided on the motion.

Grounds for filing a motion to dismiss

A motion to dismiss can be filed on a variety of grounds, which are based on legal deficiencies. Some common grounds for filing a motion to dismiss include:

  • Insufficient service of process: The complaint and summons weren’t served properly.
  • Statute of limitations has expired: Each state has “statutes of limitations,” or time limits in which certain lawsuits can be filed.
  • Lack of subject matter jurisdiction: In order for a court to rule on a case, it must have “subject matter jurisdiction,” the authority to hear a particular type of case.
  • Lack of personal jurisdiction: Similarly, a court must have “personal jurisdiction” over a defendant in order to make a decision involving the defendant. A court has personal jurisdiction over a party when he or she is a resident or has “sufficient minimum contacts” with the jurisdiction where the lawsuit has been filed.
  • Improper venue: Even when a court may have personal jurisdiction over the parties, it may be the improper “venue,” which refers to the specific location of the court (based on state laws).
  • Failure to state a claim for which relief can be granted: There are a variety of requirements with which a plaintiff must comply when filing a complaint, including a valid cause of action. A motion to dismiss may be granted if the plaintiff’s complaint fails to adequately allege all of the elements of a claim or if the complaint fails to allege a measurable injury.

Key differentiating factors

  • A motion to dismiss typically occurs because a key procedural aspect was not conducted, or done improperly.
  • Motion for summary judgments focus on facts in the case and suggests a trial will not alter the indisputable outcome.
  • When a motion to dismiss is granted, the losing party may revise their claim and file again. It most instances, motion for summary judgments cannot be re-filed unless under certain circumstances or via appeal.
  • Plaintiffs need only to have legally compliant claims to avoid motions to dismiss, otherwise, it should be determined by a jury.
  • A motion for summary judgment requires that judges decide the sufficiency of evidence in rendering a determination.
  • Motions for summary judgment are exclusively applicable in civil cases, while motions to dismiss apply in criminal and civil matters.

Other differences between a motion to dismiss and motion for summary judgment

When one is involved in a personal injury lawsuit, or a lawsuit of any kind, the defense may adopt various tactics. One of them is filing of a motion to dismiss, and/or a motion for summary judgment.  Any type of dispositive motion for summary judgment that the defense can file to do away with the case prior to putting the case before a jury would be good for them, so you can’t fault them for filing these motions, right?

While both a motion to dismiss and a motion for summary judgment are considered dispositive motions since they can dispose of some or all of the causes of action in a case, as a plaintiff, you should be prepared to face them.  However, while they may sound similar, these two motions are very different.

A motion to dismiss will be filed if the defense believes there is some fatal defect in the pleadings that prevents the case from going forward.  The most common motion to dismiss is based on federal rule 12(b)(6), which alleges that the plaintiff failed to state a claim, or a failure to state facts, upon which relief can be granted.  As is the case with the old common law demurrer, in a motion under rule 12(b)(6), the facts of the complaint are assumed true for purposes of the motion to dismiss, and the case must be dismissed if it fails to state a claim upon which relief can be granted.  This is why the drafting of the complaint when filing your lawsuit is of utmost importance.  You don’t want to lose your case before you even take the field, so it’s important to hire a personal injury lawyer trusts to handle your case.

A motion for summary judgment is filed if the defense believes that no genuine issue of material fact remains, and that the case should be dismissed or contemplated as a matter of law.  The key words in that phrase are “genuine,” and, even more so, “material.”  There will always be some dispute of the facts in a particular scenario, but the key is whether a genuine issue of material fact exists.  An experienced personal injury attorney can help you develop a strategy to get your case beyond these motions and in front of a jury to successfully pursue your case.

For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer who has been involved in personal injury cases for years.



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