Wondering whether to file a motion to dismiss or summary judgment? Learn the best timing and strategy for each motion to maximize your chances in litigation. Legal Husk explains when dismissal is the smarter choice.

When Should You File a Motion to Dismiss Instead of a Motion for Summary Judgment?

Introduction

In litigation, timing and strategy can be everything. Filing the right motion at the right time can determine whether your case ends early or drags on through discovery and trial. Two of the most effective tools for resolving cases early are the motion to dismiss and the motion for summary judgment. But how do you know which one to file—and when?

This guide focuses on one of the most important strategic questions litigants face: When should you file a motion to dismiss instead of a motion for summary judgment? Understanding the difference in purpose, timing, and evidentiary requirements can save you thousands in legal fees—and possibly win your case before it truly begins.

What Is a Motion to Dismiss?

A motion to dismiss asks the court to throw out a case or claim because it fails to meet basic legal standards. It does not rely on factual evidence—instead, it tests the legal sufficiency of the complaint.

Common Grounds for Dismissal:

• Failure to state a claim upon which relief can be granted (Rule 12(b)(6))
• Lack of personal or subject matter jurisdiction
• Improper venue
• Statute of limitations (if clear on the face of the complaint)
• Insufficient service of process

Key Feature:

• Decided early in the case, before discovery begins

What Is a Motion for Summary Judgment?

A motion for summary judgment asks the court to decide a case—or parts of it—because there are no genuine disputes of material fact, and one side is entitled to judgment as a matter of law.

Common Uses:

• Dismissing claims that lack evidentiary support
• Resolving claims after discovery shows no factual disputes

Key Feature:

• Filed after discovery, when evidence can be submitted

Core Differences That Influence Timing

1. Evidence Required

• Motion to Dismiss: No evidence allowed; based only on complaint
• Summary Judgment: Must include supporting evidence (affidavits, documents, depositions)

2. Stage of Case

• Motion to Dismiss: Filed at the very beginning
• Summary Judgment: Filed after discovery is complete or nearly complete

3. Purpose

• Dismissal: Attack legal defects or procedural problems
• Summary Judgment: Attack factual insufficiency in the plaintiff’s case

When a Motion to Dismiss Is the Better Option

1. The Complaint Is Legally Defective

• Missing essential elements of a claim
• Relies on conclusory statements with no factual basis
• Fails to establish jurisdiction

2. Early Legal Defenses Apply

• The case is clearly barred by the statute of limitations
• Immunity doctrines apply (e.g., sovereign immunity, qualified immunity)
• The defendant isn’t a proper party

3. You Want to Avoid Discovery Costs

• If the case is baseless on its face, there’s no need to proceed to expensive depositions and document production

4. You Want to Narrow the Case Early

• Even if not all claims are dismissed, you can remove weaker causes of action upfront

Real-Life Example: Dismissal Done Right

Scenario: A small business is sued for fraud, but the complaint lacks any specific allegations about what was said, when, or how it was false.

Legal Husk Solution: We file a motion to dismiss for failure to plead fraud with particularity (as required under Rule 9(b)). The judge agrees, and the case is dismissed before discovery.

Result: The business avoids months of litigation and thousands in legal fees.

When a Motion for Summary Judgment Might Be Better

1. The Complaint Looks Plausible—but Discovery Reveals No Proof

• If the plaintiff can state a claim but can’t prove it, a summary judgment motion can expose the lack of evidence

2. Factual Disputes Are Minimal or Nonexistent

• Both parties agree on the facts, but interpret them differently under the law

3. The Case Has Already Advanced to Discovery

• At this point, a motion to dismiss is no longer available—you must rely on summary judgment

4. You Have Strong, Undisputed Evidence

• Contracts, emails, sworn declarations, or video evidence that refute the plaintiff’s claims

Tactical Advice: Which Motion First?

If you can spot legal deficiencies in the complaint early on, start with a motion to dismiss. It’s faster, cheaper, and may avoid the need for summary judgment altogether.

If the complaint survives and you proceed through discovery, gather evidence and prepare for a motion for summary judgment. Many cases benefit from filing both motions at the appropriate times.

What If the Court Denies Your Motion to Dismiss?

Don’t panic—a denial doesn’t mean you’ve lost the case.

• You may get leave to amend the complaint
• You can file a summary judgment motion later based on facts
• You can use discovery to build a record that supports dismissal at the next stage

Why Legal Husk Helps You Make the Right Call

At Legal Husk, we:

• Analyze complaints for legal flaws to build motions to dismiss
• Draft complete dismissal motions compliant with Rule 12(b)(6)
• Prepare powerful summary judgment filings with evidence and legal argument
• Help clients sequence their filings for maximum impact
• Offer affordable flat-fee services to save you money while preserving quality

📌 Learn more:

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

Final Thoughts

Knowing when to file a motion to dismiss instead of a motion for summary judgment can change the outcome of your case. If your opponent’s complaint lacks legal grounding, dismissal is your first and best shot at ending the lawsuit quickly. If facts later show there’s no case to answer, summary judgment becomes your next strategic tool.

📩 Ready to win your case early? Contact Legal Husk for expertly drafted motions to dismiss and summary judgment documents designed to help you avoid costly litigation.