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CemeteryMany cases go to the legal graveyard due to dispositive motions.  Dispositive motions seek to dispose of, get rid of, the entire case or sometimes just certain issues in a case without trial.   Dispositive motions include motions for summary judgment, motions to dismiss and motions for judgment on the pleadings.

Motion to Dismiss

Motions to Dismiss are filed early in a civil case by defendants feeling they’ve been sued incorrectly.  Usual reasons include failure to state a claim upon which relief can be granted, lack of jurisdiction either personal or subject matter, or incorrect service of process.

This motion challenges the pleadings, the legal papers filed in court, most often on the basis of a procedural flaw.  Such motions can kill a case for good.  Sometimes a motion to amend corrects the problem and the case proceeds.  But, if you’ve filed your own case and you receive such a motion, do not ignore it.

Motion for Summary Judgment

Motions for summary judgment contend that even considering all facts of record in the case that there are no genuine issues of material fact and therefore the court can enter judgment as a matter of law.  The party against whom such a motion is served must act or judgment can be entered against them.

I’ve had people attempting to ‘do-it-yourself’ or go ‘pro-se’ in a case come to me after their case was dismissed by one of these motions that was ignored, complaining “what about my day in court?”  This is your day in court, even if only on paper.

File an opposing affidavit rebutting the contention that there are no genuine issues of material fact.  A party who has filed a case who receives a motion for summary judgment must analyze the entire case, each cause of action, and then file an affidavit, in good faith, raising a material issue of fact precluding the court from entering summary judgment.

Identifying each element of every cause of action can be somewhat technical in a legal sense.  That’s why in addition to the affidavit, a legal memorandum is sometimes filed citing cases and precedents explaining why the case should survive.

Motion for Judgment on the Pleadings

Motions for judgment on the pleadings are a bit of a hybrid.  This motion tests whether the papers filed in the case merit a full trial or whether the court can kick the case to the legal graveyard.  After the pleadings are closed but in enough time not to delay trial any party may move for judgment on the pleadings.

Courts can treat this motion as a motion for summary judgment if facts outside of the papers filed are brought in at this phase.

The End

Civil attorneys often file dispositive motions, especially defense attorneys.  Such motions seek to terminate the case either because the plaintiff has failed to plead the case correctly, or because the facts in the record could not support a judgment and therefore the defendant is entitled to judgment as a matter of law.  These motions are not to be taken lightly if the person who has filed the case is serious about getting their day in court and does not want that right buried in the legal graveyard.

Federal Rules of Civil Procedure 12 and 56 describe motions to dismiss and for summary judgment.  However, each state has its own rules and statutes for these procedures and in fact individual courts within the states have their own rules to be followed precisely.


    1. Yes. A 12(b)(6) Motion, otherwise known as a “Motion to Dismiss”, can, if allowed lead to the dismissal of the case in the early stages of litigation. Insurance companies love to bring these motions in personal injury cases. The motion basically contends that the facts alleged in the complaint fail to state a claim upon which relief can be grounded and therefore the case should be dismissed. Because the motion can lead to final disposition of the case, it it considered a dispositive motion. This of course is at the trial court level and is subject to review at the appellate court level.

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Attorney Myers is a member of the American Trial Lawyers Association, Massachusetts Academy of Trial Lawyers, and New Hampshire Trial Lawyers Association. The Law Offices of Andrew D. Myers offer a broad range of legal services in personal injury cases in Massachusetts (MA) and New Hampshire (NH) areas.

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