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Motion to Dismiss vs Motion for Summary Judgment: What’s the Difference?

Motion to dismiss vs motion for summary judgment

Legal complaints and other interactions with our state and federal courts can be an intimidating experience for those unfamiliar with the processes. Here, we simplify some of that process by explaining two similar, but different parts of a case: a motion to dismiss vs motion for summary judgment. 

Motion to dismiss vs motion for summary judgment differences

Distinguishing a motion to dismiss vs motion for summary judgment is not difficult if you understand their role in state and federal court. These differences concern the unique purpose of each motion, their timing in the stage of a case, and their consequences (i.e., how they impact a case). 

Motion to dismiss standard and its overall purpose

A motion to dismiss is a formal request to stop the continuation of a plaintiff's complaint because the pleadings lack a necessary requirement. The purpose of this defendant's motion is to end a case before it really begins because the plaintiff does meet the burden of proof or misses a legal formality necessary to continue the case. Under the federal rules of civil procedure, a moving party may be successful on a motion to dismiss if the court finds the pleadings lack one or more of the following:

  • proper subject matter jurisdiction (e.g., a case concerning federal law in state court)
  • personal jurisdiction 
  • proper venue (i.e., a more appropriate forum exists for adjudication)
  • insufficient service of process 
  • a stated claim upon which the court can grant relief to the plaintiff
  • all necessary opposing parties named for potential cross-claims 

When stating a proper claim, the motion to dismiss standard requires that the complaint has sufficient material facts, if accepted as true, that allow for an inference of the defendant's liability. If the complaint fails to properly assert facts that create a legal cause of action, the court will likely rule in favor of the defendant. 

Summary judgment standard

In contrast, a Florida motion for summary judgment is a request for the court to rule in favor of the moving party on one or more claims of a case as a matter of law. While a defendant always files a motion to dismiss, a motion for summary judgment may be filed by either the plaintiff or the defendant. You're most likely to see a summary judgment motion and hearing after the discovery phase (i.e., fact-finding) of litigation, which includes processes such as: 

  • submission of affidavits
  • depositions 
  • exchange of interrogatories 
  • request for documents

A court may grant summary judgment if the movant can show that no genuine issue of material fact exists and their entitlement to judgment as a matter of law. The motion will contain references to relevant evidence and show how they apply to existing law (e.g., statutes, case law, etc.). Under the motion for summary judgment standard, the legal matter could be procedural (e.g., the claim is past the statute of limitations in Florida) or substantive (e.g., the elements of negligence not being met in a personal injury case). 

The timing differences of each motion

As briefly mentioned above, a party must file a motion to dismiss following receipt of the pleadings and must do so prior to filing a response (i.e., an answer that admits or denies the allegations set forth in the complaint). The reason being that the motion to dismiss is a response to some defect within the pleadings. This differs from the timing of a motion for summary judgment which usually happens after a defendant's response and exchange of discovery but before a jury trial. 

Summary judgment motions can be preclusive 

Another major difference between motions to dismiss and summary judgments is their preclusive effect. A motion to dismiss is not necessarily preclusive (i.e., prevents a party from litigating the claim again). That's because the plaintiff may be able to cure the reason for the dismissal (e.g., by providing proper service or refiling in a court that has jurisdiction). 

A summary judgment motion, on the other hand, is likely to have a preclusive effect because the parties had an opportunity to make their best factual and legal assertions. Aside from exhausting reviews from a court of appeals or the Supreme Court, a summary judgment motion is rather final. 

Motion for summary judgment vs motion to dismiss similarities

Despite their significant distinguishing factors, summary judgments and dismissal motions also have similarities that are worth mentioning. 

Both are dispositive motions that occur pretrial 

Each type of motion happens at different stages of the pretrial process. However, once a trial starts, it is too late to file a motion to dismiss or a motion for summary judgment. Each motion can also be dispositive, which means that it has the potential to dispose of a plaintiff's claim. With a motion to dismiss, that disposition usually arises when the reason for dismissal is the plaintiff's failure to state a viable claim. 

You may be able to appeal the lower court's ruling on either motion

If unsuccessful on a motion for summary judgment or a motion to dismiss, you likely have the ability to appeal the decision with the appropriate state or federal court of appeals or Supreme Court. Appeal of a summary judgment is more common because of the finality of the initial ruling compared to a motion to dismiss. In most cases, refiling a motion to dismiss is a more efficient approach than appealing to a higher court (unless the dismissal was with prejudice). 

So should I file for a motion for summary judgment or motion to dismiss?

Knowing when to file either type of motion will depend on the specific facts of a case and the applicable law amongst other factors (e.g., cost, litigation strategy, etc.). For example, a motion for summary judgment may make sense if you have great confidence that the law is on your side and no disputed facts exist because it will be more cost effective than pursuing trial. Ultimately, the decision to file one of these pretrial motions is best made after seeking legal advice from your attorney. You can read more Florida motion to dismiss by clicking the link.

Need help navigating the difference between motion to dismiss and motion for summary judgment?

Navigating the civil or criminal legal system can be difficult without the guidance of an experienced attorney. Cueto Law Group regularly handles litigation matters for individuals and businesses. Please contact our office if you have any questions about pretrial motions or were recently served a complaint. 

Contact Cueto Law Group today for a consultation.

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Cueto Law Group, P.L.

Based out of Miami, Cueto Law Group offers an extensive range of legal and business counsel to individuals, entrepreneurs, and corporations.

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