In my earlier blog about frivolous lawsuits, I mentioned that these actions may be susceptible to dismissal on an accelerated basis by such devices as a motion to dismiss or a motion for summary judgment. While these motions are available to either the plaintiff or defendant, in this article I will focus on its use by defendants seeking accelerated judgment. This article will explore what these two motions are, how they differ, and how they can be used to attack a lawsuit.
Motions to Dismiss
A motion to dismiss is directed to the sufficiency of a complaint. This device is used when the complaint fails to allege all of the elements required to make out a claim recognized under the law. To take a simple example, a breach of contract claim requires that a plaintiff allege (1) an agreement, (2) performance by the plaintiff, (3) a breach or violation of the agreement by the defendant, and (4) damages resulting from the breach. A failure to allege any one of these essential elements would make this claim susceptible to a motion to dismiss.
Thus, a motion to dismiss is directed to the allegations as they appear on the face of the complaint. In reviewing a motion to dismiss, a court will accept as true the factual averments of the complaint and will give the plaintiff the benefit of every favorable inference that can reasonably be drawn from it, without making any determination whether the plaintiff will ultimately be able to prove the facts alleged in the complaint.
Because the motion to dismiss is directed to the face of the pleading, it is typically asserted at the outset of a lawsuit and does not require any discovery. Since it addresses a pleading deficiency, it does not necessarily dispose of the lawsuit permanently, because the plaintiff will typically have an opportunity to file an amended pleading that cures the deficiency. Such a motion may, however, permanently dispose of the lawsuit if the plaintiff cannot assert facts sufficient to make out a claim.
Motions for Summary Judgment
In contrast to a motion to dismiss, a defendant making a motion for summary judgment must put forth proof that demonstrates conclusively that the defendant is entitled to a judgment dismissing the lawsuit. The defendant must establish that the factual evidence is such that there are no genuine, disputed factual issues that would prevent a court from granting the defendant judgment in its favor. Unlike a motion to dismiss, the court reviewing a motion for summary judgment must review the evidence, and if upon such a review it appears that there are no disputed factual issues that would require it to deny the motion, it must grant the defendant summary judgment. The court may not, however, resolve disputed issues on a motion for summary judgment, and once it determines that a relevant issue is genuinely disputed, it must deny the motion.
In some cases, certain facts may be available to a defendant at the outset of a lawsuit that demonstrate it is entitled to judgment dismissing the lawsuit. In our breach of contract example above, a defendant would be entitled to summary judgment if it could demonstrate that the plaintiff had executed a release of its claims under the contract, or that its contract was with a person who was incompetent or a minor at the time the contract was signed, rendering the contract unenforceable. In most cases, however, a motion for summary judgment is made at the conclusion of discovery.
Because a motion for summary judgment asserts that there are no genuine disputed issues of fact, a successful motion puts an end to the lawsuit once and for all.
So, if you are on the receiving end of a lawsuit, these two devices could provide an avenue for getting the lawsuit dismissed short of a full trial on the merits.
Frank J. Monteleone – Monteleone Law
Address: 11 Broadway, Suite 615 New York, NY 10004