Wondering if you can file both a motion to dismiss and a motion for summary judgment in the same lawsuit? Learn how to strategically combine both with insights from Legal Husk

Can You File Both a Motion to Dismiss and Motion for Summary Judgment in the Same Case?

Introduction

In litigation, timing and strategy are everything. Two of the most effective tools available to litigants are the motion to dismiss and the motion for summary judgment. Each serves a distinct purpose—but many litigants and even legal professionals ask: Can you file both in the same case?

The short answer is yes. In fact, filing both motions at different stages of the case can be a powerful strategy to dismiss meritless claims early and win judgment on undisputed facts later.

In this article, we’ll explain how, when, and why to file both motions in the same case—and how Legal Husk helps clients do it seamlessly.

Understanding the Motions: A Quick Recap

Motion to Dismiss (Rule 12(b))

• Filed before discovery
• Based solely on the allegations in the complaint
• Argues that the plaintiff’s case is legally deficient

Motion for Summary Judgment (Rule 56)

• Filed after discovery
• Based on evidence in the record (depositions, affidavits, documents)
• Argues that no material facts are in dispute and the moving party is entitled to judgment

Why You Might File Both

1. To Challenge a Complaint at Multiple Levels

• Motion to Dismiss challenges the legal theory.
• Summary Judgment challenges the factual support for the theory.

2. To Save Time and Money

• A motion to dismiss may eliminate some or all claims early.
• Summary judgment can avoid trial when discovery shows there’s no genuine dispute.

3. To Strengthen Settlement Position

• Filing a well-supported motion shows the strength of your defense.
• A motion to dismiss sets the tone, and a later summary judgment reinforces your leverage.

How the Timeline Works

Step 1: Filing the Motion to Dismiss

• Occurs immediately after receiving the complaint (within 21 days in many jurisdictions)
• If granted, ends all or part of the case early

Step 2: Proceeding with Discovery

• If the motion to dismiss is denied or partially granted, discovery begins
• Parties exchange documents, take depositions, and build the evidentiary record

Step 3: Filing the Motion for Summary Judgment

• Filed after discovery closes
• Based on real evidence, not allegations
• Designed to show the other party cannot meet their burden of proof

Strategic Considerations

1. Partial Success Is Still a Win

• Even if a motion to dismiss only knocks out some claims, it narrows the case
• Summary judgment can take care of what’s left

2. Don’t Duplicate Arguments

• Avoid repeating the same argument across both motions
• Your summary judgment should build on the factual record, not echo dismissal arguments

3. Know Your Judge’s Preferences

• Some judges prefer efficient case management and welcome both motions
• Others may encourage consolidation or limit multiple dispositive motions

Examples of Filing Both Motions

Case A: Employment Discrimination Lawsuit

• The defendant files a motion to dismiss to remove a retaliation claim that lacks legal foundation
• The court grants it in part; the rest of the case proceeds to discovery
• After depositions, the defendant files a motion for summary judgment with witness statements and HR records showing no discrimination occurred
• The court grants summary judgment and closes the case

Case B: Breach of Contract and Fraud

• The defendant challenges the fraud claim as too vague (motion to dismiss)
• The fraud claim is dismissed, but the breach of contract claim survives
• Later, summary judgment is filed showing all payments were made
• Case resolved without trial

What Happens if One Is Denied?

• If the motion to dismiss is denied: You can still pursue summary judgment after discovery
• If summary judgment is denied: The case proceeds to trial

Either way, filing both gives you two chances to exit litigation before trial

How Legal Husk Helps You Use Both Motions Strategically

At Legal Husk, we:

• Analyze complaints for legal flaws and draft Rule 12(b)(6) motions
• Guide clients through discovery with summary judgment strategy in mind
• Draft compelling Rule 56 motions with admissible evidence
• Help sequence both filings for maximum strategic impact

📌 Use both motions with confidence at:

• legalhusk.com
• legalhusk.com/services
• legalhusk.com/services/civil-litigation
• legalhusk.com/about-us

Final Thoughts

Filing both a motion to dismiss and a motion for summary judgment isn’t just allowed—it’s often smart. These motions serve different purposes at different times in a case. Used together, they offer a layered legal defense that challenges both the law and the facts.

📩 Want help using both motions to win your case early? Visit Legal Husk to get expertly drafted court documents that protect your time and money.