Differences between motions to dismiss and motions for summary judgment.
The most important difference between a motion to dismiss and a motion for summary judgment is the evidence that the court may consider in ruling on the motion. As a general rule, a motion to dismiss accepts the allegations in the complaint as true. For example, if a plaintiff alleges in the complaint that they were injured on June 1st, then in the absence of evidence properly subject to judicial notice or in documents attached to the complaint, the court must accept the June 1st date as true for purposes of a motion to dismiss. However, on summary judgment the defendant can introduce medical records that reveal the plaintiff was actually injured earlier and argue that the plaintiff waited too long to file the lawsuit and so the claims are barred by the applicable statute of limitations.
A motion for summary judgment must be based on undisputed facts.
It is important to understand that while the court may now consider evidence in ruling on the motion, the court may not act as a "trier of fact" and "weigh" conflicting evidence. Instead, the court can rely only on "undisputed" facts. If the plaintiff submits a declaration stating that the light was green, and the defendant submits a declaration stating that the light was red, the court cannot resolve on summary judgment whether the light was green or red. A party drafting a motion for summary judgment should therefore try to rely on objective evidence (like documents) and try to limit the number of facts to those necessary to win the motion. Otherwise, you create a risk of the opposing party will raise a "triable issue of fact" by disputing the facts underlying your motion.
An opposition to a summary judgment motion should focus on facts in dispute.
If you are opposing a motion for summary judgment, it is critically important to review the facts underlying the motion and determine which facts you dispute and the evidence that supports your position. The most common way to defeat a motion for summary judgment is to persuade the court that, contrary to the motion's claim that the facts are "undisputed," there are key facts that must be decided by a trier of fact after weighing conflicting testimony.
A plaintiff can file a motion for summary judgment, as well as a defendant.
Also, keep in mind that a plaintiff can file a motion for summary judgment, essentially asking the court to rule that, based on the undisputed facts, the plaintiff wins as a matter of law.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.
What determines Avvo Rating?
Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.