Don't Bet the Business

When I have a client who is inexperienced with litigation a lot of questions come up about court rules and procedures.

There are different rules in the federal and state courts. Within those different courts, there are different rules for certain types of disputes and proceedings. Individual judges may also have their own particular rules and procedures. Lawyers have books filled with the rules and explanations, but even with that help, the myriad rules governing litigation are not always easy to understand. 

One group of rules that invariably comes up in every dispute are those pertaining to motions seeking to have a case dismissed before trial. That such motions are even possible is surprising to some. Understanding how the rules differ and when they apply is troubling for many more. What follows is a simplified explanation that hopefully dispels some of the confusion.

Lawyers will ask a judge to do something by making a “motion.”  Motions can be made orally, but most commonly, motions are written and are accompanied by a “brief” explaining the legal basis for whatever it is we are asking the judge to do.   

Some motions are simple, such asking for more time to complete a task like filing a witness list.  Others are more complex.  Motions asking for a pretrial dismissal of a case fall into the latter category.

Motions seeking a pretrial dismissal generally are of two types:  motions to dismiss and motions for summary judgment. In Michigan’s state courts we call all such motions ones for “summary disposition.” For simplicity and clarity, I am going to use the common federal designations.

Motions to Dismiss

A “motion to dismiss” is typically filed in response to a complaint and is made in lieu of filing an “answer.”  Technically, a plaintiff can move to “strike” a defense that a defendant has pled, given that defenses are subject to the same pleading requirements as are the plaintiff’s claims. For purposes here, we will stick with motions to dismiss the plaintiff’s claims.

A motion to dismiss tests the sufficiency of the plaintiff’s complaint. For example, a defendant may claim that the plaintiff has filed in the wrong court, lacks standing to sue, has named the wrong party as a defendant, has filed too late to satisfy a statute of limitations, or possibly the plaintiff simply has left something out of the complaint that needs to be there in order to state a viable claim.

When considering a motion to dismiss, courts look to see if the claims pled in the complaint include enough supporting facts to be plausible on their face. This is a fairly low bar to cross. In making this determination, courts construe the complaint in the light most favorable to the plaintiff while accepting all well-pled allegations as true. A claim is plausible when the plaintiff pleads enough facts to allow the reasonable inference that the defendant is liable or responsible for the alleged wrongdoing and that the plaintiff is entitled to some form of relief. 

Success on a motion to dismiss can be short-lived. While technically the granting of a such a motion results in the dismissal of the case, the courts typically allow a plaintiff the chance to amend the complaint to cure any deficiency. A motion to dismiss will be final only if the plaintiff chooses not to amend and proceed, or if the pleading defect is one that cannot be overcome.

Motions for Summary Judgment

A motion for summary judgment is another way to ask for a pretrial resolution of a case. It differs from a motion to dismiss because summary judgment is typically considered only after the parties have conducted their discovery. This is so because a motion for summary judgment tests the factual support for a claim, not how well it was pled. Motions for summary judgement can be filed by either the plaintiff – seeking an immediate victory, or by the defendant – seeking a final dismissal and resolution of the litigation. 

A motion for summary judgment is granted where, after examining the facts as developed during discovery, there are no genuine disputes as to any material facts needed to support a claim. A fact is material if it might affect the outcome of the dispute. A material fact is genuinely disputed when there is enough evidence favoring the nonmoving party that a judge or jury could return a verdict for that party. 

Unlike with a motion to dismiss, a party opposing a motion for summary judgment cannot rest on the sufficiency of the pleadings. Rather, when defending against a motion for summary judgment the non-moving party must comb the record and identify facts and evidence, including depositions, documents, electronically stored information, affidavits, stipulations, admissions, interrogatory answers, or other materials, that will convince the judge that material factual disputes remain. Put another way, when deciding a motion for summary judgment the court determines if the evidence demonstrates sufficient factual disagreements as to require a trial or whether the facts are so one-sided the moving party must prevail as a matter of law.

When or if motions to dismiss and/or for summary judgment are filed often are as much questions of strategy as they are viability. There are more to such motions than can be described or explained here. However, understanding the difference between the two types of motions and when they are used is a first step towards a better understanding of the litigation process.