What Happens if you Lose a Motion for Summary Judgment

Don’t let your case end this way. A motion for summary judgment is a big hairy monster lurking in the dark ready to jump out and destroy your case. It doesn’t matter whether you’re a plaintiff or defendant. A grant of a motion against you means the other side wins. That’s it. That’s the end of your case – unless you do something about it. Below are ten reasons why you should appeal a grant of summary judgment.

  1. If a motion for summary judgment was skimpy you can defeat it

“Based on Rule 56 of the Federal Rules of Civil Procedure, the widely accepted standard for granting summary judgment is twofold: (1) that no material facts are in dispute, and (2) that the moving party deserves judgment as a matter of law. To grant summary judgment, a court has to find that a trial would be useless because there are no facts for a judge or jury to weigh.”

Did the lawyer for the other side meet the standard above? Unlikely. Far too often, lawyers underestimate the skills of pro se litigants. So, when up against one, they fail to write a proper motion. Instead, they use boilerplate language from a motion statute. They don’t state with particularity why their client is entitled to motion for summary judgment. They don’t prove that there are undisputed material facts. This happens most with wholesale lawyers who go into court with a list of defendants to sue. If a defendant puts up a fight by responding to the complaint, the attorney moves for motion. The short motion might lack any facts about the case. Such a “motion” is weak, skimpy, and very beatable on appeal.

  1. Preservation of error is not as much of a thing

In so many matters, pro se litigants lose on appeal because they have not preserved an issue. That is, they don’t make an objection at a hearing or at trial. They fail to bring a court reporter to record the judge’s findings, or they do not raise other issues during litigation. So, an issue is considered waived and often can’t be appealed. However, being granted a motion for summary judgment is a final order. If you respond properly to the motion and /or show up for the hearing with a court reporter and a fairly decent argument, errors the judge made in granting a motion for summary judgment are preserved.

  1. A grant of a motion for summary judgment is (or should be) difficult to get

Yes, you hear about it all the time. A judge granted a motion for summary judgment against someone you know. But if you have a legitimate claim or defense, a motion for summary judgment should be difficult to get against you. Unfortunately, that doesn’t stop biased judges from granting them anyway in favor of a lawyer against a pro se litigant. In that case, do your homework and make a beeline to the appellate court.


  1. Lawyers move for motion for summary judgment as a scare tactic

One of the biggest bullying tactics lawyers employ against pro se litigants is the threat of a motion for summary judgment. If you’re a plaintiff, and the lawyer wasn’t able to have the case dismissed, that means you have a case and a motion for summary judgment is not warranted. If you’re a defendant and the other side has not stricken all of your affirmative defenses or you’ve made it to discovery, chances are a summary judgment motion will be very weak. The problem is that pro se litigants are often so intimidated by the notion itself that they fold easily. Plaintiffs take settlements that do not adequately compensate them for harm done. Defendants pay or agree to pay more than is warranted just to avoid a motion for summary judgment. That’s why lawyers move for summary judgment. But you didn’t come to play, so don’t let this tactic work. Appeal an ill-advised grant of summary judgment.

  1. Discovery isn’t over

Are you done with discovery? In an ideal world, the motion for summary judgment is filed after discovery has ended or during a lull in discovery. However, where a pro se litigant is involved, a lawyer may take a gamble and move for summary judgment in the middle of discovery. By doing this, she can quickly end the case. But consider this? How can your opponent meet the requirements in point 10 above without discovery? Discovery could raise disputed facts that are material. Without “facts” and “evidence”, the lack of a genuine issue of material facts is difficult to prove. That’s a great argument to assert on appeal.

  1. Grants of a motion for summary judgment are often overturned

Courts don’t like to grant summary judgment. Appellate courts consider motion for summary judgments to be drastic. “This drastic remedy should not be granted where there is any doubt as to the existence of [triable] issues.” Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] This is not just true for this one court or opinion. It’s true across the country. Motions for summary judgment against you means you have no case or no defense whatsoever. This is rarely the case. In an appeal, the judges must review all the evidence in the light most favorable to you, not the person that filed the motion. So, an appellate court will reverse a motion for summary judgment if any kind of a case is shown. In fact, the court must “accept as true the facts” contained in your response and other filings and make all “the reasonable inferences that can be drawn” from them.

  1. Your opponent has not struck your affirmative defenses

If you’re a defendant and asserted affirmative defenses, the plaintiff must strike them all before properly moving for a motion summary judgment. In his motion, he must show that he struck your affirmative defenses or that the affirmative defenses are not viable. If he has not done this, rely heavily on it in your appeal. Chances are, appellate judges will agree with you.

  1. You can throw out a net and see what you get


You can defeat the grant of a motion for summary judgment by presenting a multi-pronged attack. Don’t rely on just lack of discovery (evidence), lack of particularity, or failure to strike affirmative defenses. If you can, point to other weaknesses in your opponent’s motion. Do statutes and cases support their argument? Look it up. There are hundreds, maybe even thousands of appellate cases in every jurisdiction. Are there important motions for summary judgment yet to be heard, like the motion to compel or the motion to strike the affidavit in support of the summary judgment? If so, argue this in your brief. Throw out a net and see what you get.


  1. Pro se litigants give up when they should fight

A motion for summary judgment motion should be a gamble, but it’s not. When used against an unprepared pro se litigant, it’s often a winner for the opponent. It’s one of those legal filings that strikes terror in the hearts of pro se litigants–at least those who know what it means. Too many either don’t know what to do to defeat it or simply give up because the task of defeating it seems too daunting. That’s why lawyers threaten pro se litigants with it and file it regularly. A motion for summary judgment is hard to get. Don’t let your opponent frighten you into giving up on your case.

  1. You don’t want to always ask “what if?”

What if I’d appealed that motion for summary judgment? You don’t want to forever ask yourself this question. If you’re a plaintiff, and you feel you have a viable claim, or if as a defendant you have at least one supportable affirmative defense, you might be able to win on appeal. To give yourself the best chance, learn about the requirements for a motion for summary judgment in your jurisdiction. When you see it filed against you, work through the fear. Read the statutes, find supporting cases, and make short work of that case killing a motion for summary judgment. It’s easier than you think to defeat.

Can a summary judgment denial be appealed?

In federal court, it is quite clear that denial of summary judgment is not, absent special circumstances, a separately appealable issue as in, Levy v. Sterling Holding, 544 F.3d 493, 501 n. 6 (3d Cir. 2008). “Once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the motion for summary judgment.” See, Ortiz v. Jordan, 562 U.S. 180, 184 (2011). Two special circumstances permitting appellate review of a denial of summary judgment in federal court are: denial of the defense of qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 528-29 (1985), and; denial of summary judgment simultaneously with grant of a cross-motion for summary judgment.

In Pennsylvania state court, however, until recently, the existence of a similar rule has been unclear. While “it is well-settled in this commonwealth that the denial of a motion for summary judgment is interlocutory and not appealable,” as in Paparelli v. GAF, 549 A.2d 597, 598 (Pa. Super. 1988), it is less certain whether summary judgment denials, like other interlocutory orders, “become reviewable on appeal upon the trial court’s entry of a final order,” when litigation is resolved through trial. See, Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa. Super. 2008).  Pennsylvania appellate precedent now appears to be converging on the federal rule.

Appeals of motions for summary judgment

An order granting a motion for summary judgment over the whole case is a final decision and hence appealable.  An order granting partial summary judgment from which no immediate appeal lies is merged into the final judgment and reviewable on appeal from that final judgment.  A partial summary judgment order is not appealable; even if the remaining claims are voluntarily dismissed without prejudice and that the dismissal order appears to be final on its face and the plaintiff is allowed to refile the claims later.  A summary judgment granted to some of the defendants in an action is not final as to all parties and therefore not immediately appealable if the remaining defendants did not join in the motion.  The denial of a motion is generally an interlocutory decision only, and therefore not directly appealable.  If the trial court’s order overrules a motion for summary judgment, it is interlocutory in nature making it non-appealable.

An appeal from the denial of a summary judgment motion on the grounds of qualified immunity and involves a purely legal question shall be entertained by a federal court of appeal.  Mere assertion of existence of a factual issue by the district court is not sufficient to initiate an appellate action.  An order denying summary judgment ordinarily is immediately appealable where the motion is made on the basis of the qualified immunity of a public officer or employee.  Similarly, denial of a summary judgment motion based on absolute immunity is immediately appealable since it is an issue of law, separable from the merits of the case, which once denied cannot be effectively preserved for later review.  Law does not authorize an appeal from orders denying motions for summary judgment because of unresolved issues of fact.

In Lind v. UPS, 254 F.3d 1281 (11th Cir. Fla. 2001), an employee filed a motion on the retaliation claim.  It was denied by the trial court and the case proceeded to a trial which ended by a decision that no act of retaliation had occurred.  The appellate court affirmed the trial court’s decision and stated that an order granting partial summary judgment from which no immediate appeal lies is merged into the final judgment and reviewable on appeal from that final judgment.  An order granting summary judgment on certain issues is a judgment on those issues.  It forecloses further dispute on those issues at the trial stage. An order denying a partial motion, on the other hand, is merely a judge’s determination that genuine issues of material fact exist. It is not a judgment, and does not foreclose trial on the issues on which summary judgment was sought.



At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.