Vera waited outside a courtroom for her hearing to begin. A defendant in a debt collection claim, she felt confident about her case. The facts were indisputable. She had payment receipts and other proof that she owed the plaintiff, a bank, nothing. She felt confident she would prevail on her motion to dismiss.
Eleven minutes later, Vera left the courtroom stunned. The judge denied her motion. She couldn’t understand it. All the facts were on her side!
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Vera argued her motion to dismiss with evidence that supported a summary judgment. Scenarios like this play out regularly in America’s courts. Pro se litigants are often confused about the difference between one motion and another, so they leave courtrooms not understanding what happened. They have legitimate gripes, proof that their position is “right”, and a great argument for the wrong motion.
To avoid a similar scenario, understand fully the motion you’re in court trying to support or defeat. While the Motion to Dismiss and Motion for Summary Judgment can end the case, they have important distinctions. Understanding those distinctions can mean the difference between “winning” and “losing” a hearing. Below are some differences and similarities.
Comparing the Motion to Dismiss and Motion for Summary Judgment
MOTION TO DISMISS
- The defendant is the moving party. That is, the defendant filed the motion.
- A motion to dismiss relies on procedural laws, which set out the rules for enforcing other laws or for bringing a lawsuit. For instance, a procedural rule may tell you how much time a property owner has to sue for trespassing or how to file a complaint. Procedural laws, or rules of civil procedure, are typically found within the statutes of a jurisdiction. They don’t deal with the merits of the case.
- A motion to dismiss moves the judge to end a case because of deficient allegations in the complaint or failure of proper service of summons.
- When arguing for a motion to dismiss, a common assertion is: “The complaint fails to state a claim for relief.” (Or fails to state a cause of action.)
- To defeat a motion to dismiss, the plaintiff must show that the complaint was properly written and properly served.
- A motion to dismiss will result in (1) a denial of the motion, (2) dismissal “without prejudice”, allowing the plaintiff to amend the complaint, or (3) a dismissal “with prejudice”, which ends the case.
- Even if the judge rules in the defendant’s favor, the plaintiff has another “bite of the apple” if the dismissal is “without prejudice”.
MOTION FOR SUMMARY JUDGMENT
- Either party can move.
- The motion for summary judgment relies on substantive laws. Substantive laws tell us our rights and how to behave. Most states have a law on the books against trespassing. If you trespass on someone’s property and they sue you, they will consult the substantive law that says it’s wrong to trespass. Since it’s wrong to trespass, they have a right to sue if some harm is caused. They may find case law in which courts have ruled against people trespassing. Substantive laws deal with the merits of a case.
- When arguing for summary judgment, a common assertion is: “There are no genuine issues of material fact and the movant is entitled to summary judgment as a matter of law.”
- To defeat a motion for summary judgment, the movant must show evidence that there is an issue of genuine dispute for a trial on the merits.
- A motion for summary judgment will result in either a denial of the motion or a judgment for the movant and an end to the case.
- The case or issue ends when the judge grants summary judgment.
The motion to dismiss and motion for summary judgment both present a chance to end the case. If you’re the movant, like Vera, strike hard, but be sure you’re striking at the right thing. If you’re the non-movant, know that neither of these motions is easy to get. So, keep your head up, and don’t get punched out by a blow you didn’t even know could happen.
Below is additional reading about the motion to dismiss and motion for summary judgment
- Keeping Your Motion To Dismiss On A Leash
- Winning At Summary Judgment
- How To Oppose A Motion for Summary Judgment
- Federal Rules of Civil Procedure, Rule 41–Dismissal of Actions
- Federal Rules of Civil Procedure, Rule 56–Summary Judgment
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