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In federal court the judge has not yet ruled yet on the Motion to Dismiss but the defendant filed a Summary judgment.

New York, NY |

What happens? can the Judge rule on the Motion to Dismiss or does she have to rule on the Summary Judgment? If does she have to respond to both of them? The defendant counsel knew that that the plaintiff stated his case. Does this piss off the judge? Also can the defendant withdraw his Summary Judgment and refile it? I am pro-se plaintiff

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Attorney answers 2


The judge will probably address all the pending motions at once.

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A motion to dismiss seeks to throw out a complaint for failure to properly set forth the facts which make each claim of a claim and/or to properly allege the elements of particular cause of action. A summary judgment motion alleges that there are no issues of material fact in the case to be tried so defendant (or plaintiff) is entitled to judgment as a matter of law. A motion to dismiss is typically made by a defendant at the start of the case. A motion for summary judgment is usually made after discovery unless the claim is for an amount certain under a contract.

A motion to dismiss based on documents beyond the pleadings becomes a summary judgment motion. Under FRCP 56, if you are at the start of your case and need discovery to defend against the summary judgment motion, you need to allege this and the court will put off a decision on the motion until discovery is conducted. Beyond this, a party typically needs the court's permission before making a motion; what do the Judge's individual rules say about this?

What you mean "defendant counsel knew that plaintiff stated his case?" Pro se's typically think that they have made out a case when they have not. Indeed, the judge may end up agreeing with defendant.