A fact is material if it might affect the outcome of the dispute. 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.Ī 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.

This is so because a motion for summary judgment tests the factual support for a claim, not how well it was pled. It differs from a motion to dismiss because summary judgment is typically considered only after the parties have conducted their discovery. 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.Ī motion for summary judgment is another way to ask for a pretrial resolution of a case.

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. Success on a motion to dismiss can be short-lived. 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. In making this determination, courts construe the complaint in the light most favorable to the plaintiff while accepting all well-pled allegations as true. 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. 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.

For purposes here, we will stick with motions to dismiss the plaintiff’s claims.Ī motion to dismiss tests the sufficiency of the plaintiff’s complaint. 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.Ī “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. Motions seeking a pretrial dismissal generally are of two types: motions to dismiss and motions for summary judgment. Motions asking for a pretrial dismissal of a case fall into the latter category. Some motions are simple, such asking for more time to complete a task like filing a witness list. 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. What follows is a simplified explanation that hopefully dispels some of the confusion. Understanding how the rules differ and when they apply is troubling for many more. That such motions are even possible is surprising to some. One group of rules that invariably comes up in every dispute are those pertaining to motions seeking to have a case dismissed before trial. 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. Individual judges may also have their own particular rules and procedures.

Within those different courts, there are different rules for certain types of disputes and proceedings. There are different rules in the federal and state courts. When I have a client who is inexperienced with litigation a lot of questions come up about court rules and procedures.

Sample order granting motion to dismiss