Motion Practice

A case can end before anyone decides what happened

A civil lawsuit can end without anyone deciding what happened. No jury weighs the witnesses, and no judge chooses between two accounts of the facts. The case ends on a motion, and the judge answers a question of law: on this record, is there anything left for a jury to decide? If the answer is no, the side that asked wins, and the trial never happens.

Two motions put that question most directly. A motion to dismiss asks it of the complaint, and a motion for summary judgment asks it of the evidence. What does each one ask the judge to decide, and why does the answer turn on the standard as much as on the story? In the activity, you draft one of the two with an AI, check every authority it cites, and set it beside motions that lawyers filed in real cases. Both jobs start with knowing what the judge is being asked.

How a judge is asked

In a civil case, the parties set the agenda. A party that wants the judge to do something asks, and under Federal Rule of Civil Procedure 7(b) and Florida Rule of Civil Procedure 1.100(b), the request comes as a motion. It must be in writing unless made during a hearing or trial. It must state its grounds with particularity and state the relief sought. That is the whole baseline of motion practice. The rest comes from the rule for the particular motion, the court’s local rules, and the judge’s own orders.

The grounds are the argument, and the argument lives in a memorandum of law, filed with the motion or written into it. The memorandum states the governing standard, applies it to the facts, and cites authority for each step. A judge reads it against the rule and the cases it cites. So a citation to a case that does not exist, or to one that does not hold what the memorandum says, fails at the exact point where the argument needed support.

Motions also come in two weights. A dispositive motion can end all or part of the case. A non-dispositive motion settles a question along the way, such as whether a party must answer an interrogatory. The rules treat the two differently. In Florida, Rule 1.202 requires a movant to confer with the other side in good faith before filing a non-dispositive motion. It exempts a list of motions, among them a motion for summary judgment and a motion to dismiss for failure to state a claim. In federal court, Rule 72 lets a magistrate judge decide a non-dispositive pretrial matter, and the district judge sets that order aside only if it is clearly erroneous or contrary to law. On a dispositive motion the magistrate judge only recommends a disposition, and the district judge decides anew any part a party properly objects to.

One dispositive motion comes early, before the defendant answers: the motion to dismiss for failure to state a claim, under Federal Rule 12(b)(6) or Florida Rule 1.140(b)(6). It takes the complaint’s well-pleaded facts as true and asks whether, on those facts, the law gives the plaintiff a claim. No evidence comes in, and nobody asks whether the facts are true. Federal courts ask whether the facts alleged make the claim plausible. Florida courts ask whether the complaint’s ultimate facts state a cause of action, looking only within its four corners. Either way the motion tests the pleading, so a court can dismiss with leave to amend and let the plaintiff plead what was missing.

A complaint that survives has earned only the right to go forward. It has proved nothing. Proof comes in discovery, and the next motion asks what that proof amounts to.

Is there anything for a jury to decide?

The motion for summary judgment asks the question of the evidence. Federal Rule 56(a) (opens in a new tab) directs the court to grant it when the movant shows no genuine dispute as to any material fact and an entitlement to judgment as a matter of law. The movant does not ask the judge to find the facts. It argues that the record leaves only one answer a reasonable jury could give. The record is the material the parties cite: depositions, documents, interrogatory answers, admissions, affidavits, and declarations, each cited to the particular part that supports the point.

The Supreme Court spelled out the test in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (opens in a new tab), and it has two parts. The substantive law decides which facts are material. Only a dispute over a fact that might affect the outcome under the governing law counts, and a fight over a detail that changes nothing does not. A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Together they make up the genuine dispute of material fact test. The Court said the standard mirrors the one for a directed verdict, where a judge takes a case from the jury at trial because the evidence permits only one reasonable conclusion. In other words, summary judgment asks before trial what a directed verdict asks during one. And weighing the evidence stays with the jury. The judge does not decide whom to believe; the nonmovant’s evidence is believed, and every justifiable inference is drawn in its favor.

Who has to show what? Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (opens in a new tab) answered that for the moving side. In September 1980, Myrtle Nell Catrett sued 15 companies, alleging that her husband Louis had died the year before from exposure to asbestos products they made or distributed. Celotex moved for summary judgment on the ground that she had no evidence he was ever exposed to its products. Asked by interrogatory, she had named no witness who could testify to that exposure. The trial court granted the motion. A divided panel of the D.C. Circuit reversed, holding the motion fatally defective because Celotex had offered no evidence of its own to disprove exposure.

The Supreme Court reversed that decision. A party moving on an issue the other side must prove at trial need not negate the other side’s claim with affidavits. It can meet its initial burden by pointing out to the court that the evidence to support the nonmoving party’s case is missing. The burden then shifts. The nonmovant must go beyond the pleadings and point to specific facts, in depositions, interrogatory answers, affidavits, or the like, that show a genuine issue for trial. The rule works that way only after adequate time for discovery. And the Court described summary judgment “not as a disfavored procedural shortcut” but as an integral part of the rules. With Matsushita Electric Industrial Co. v. Zenith Radio Corp., decided the same year, Celotex and Anderson make up the summary judgment trilogy.

Then the case went back to the D.C. Circuit, and this time Mrs. Catrett won. On remand in Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C. Cir. 1987) (opens in a new tab), the court went through the record item by item. A letter from an officer of her husband’s former employer said his job there, in 1971, had been to supervise and train crews applying a fireproofing product called Firebar. She had listed that officer as a trial witness. Celotex’s own exhibits, filed with its motion to move the case to Illinois, showed Firebar shipped to that employer in 1971. Its interrogatory answers said it had assumed the ordinary liabilities of the company whose division sold it. Together, the court held, the items created a genuine issue of material fact, and it reversed the summary judgment. Judge Bork, whose earlier dissent the Supreme Court had agreed with, dissented again. Nobody, he wrote, had been identified who could testify from personal knowledge that Louis Catrett was exposed.

The two decisions fit together. Celotex made it easier to move for summary judgment, because a movant can now make the other side show its evidence. It did not make that evidence disappear. Whether a genuine dispute exists is read off the record, and part of the record that defeated the motion came from Celotex’s own filings.

Florida changes its answer

For decades Florida’s courts answered the summary judgment question with the same words and a different result. Florida’s rule, like the federal one, called for judgment when there was no genuine issue of material fact and the movant was entitled to judgment as a matter of law. On December 31, 2020, in In re Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192 (Fla. 2020) (opens in a new tab), the Florida Supreme Court called the key sentences of the two rules materially indistinguishable. Then it listed three ways Florida’s case law had parted from the federal courts’ anyway.

First, Florida courts had declined to recognize the fundamental similarity between summary judgment and a directed verdict. Second, the Court wrote, since Holl v. Talcott in 1966 they had required the movant to conclusively disprove the nonmovant’s theory of the case. Third, Florida read “genuine issue” broadly. As a leading treatise put it, any competent evidence creating an issue of fact defeated the motion, however credible or incredible, substantial or trivial, so long as it raised the slightest doubt. Set the second difference beside Celotex. Celotex offered nothing to disprove exposure, and under Florida’s old approach that alone would have been enough to deny its motion.

The Court adopted the federal standard, effective May 1, 2021. It found that standard “more rational, more fair,” and more consistent with the purpose of the rules, which is the just, speedy, and inexpensive resolution of every case. Justice Labarga dissented. The federal approach, he wrote, lets a trial court take on a role traditionally reserved for the jury and weigh the evidence, and the decision infringes on the jury’s role in civil cases. The majority’s opinion speaks to that concern. It reaffirms that summary judgment is not a substitute for the trial of disputed fact issues, and it describes the goal as keeping juries for cases with real factual disputes. The two opinions are short, and the disagreement between them is plain enough for you to weigh yourself.

On April 29, 2021, the Court went further (opens in a new tab) and replaced most of Rule 1.510’s text with Federal Rule 56’s. Borrowing the words, it reasoned, brings the federal case law interpreting them along too. Some differences remain. Where Federal Rule 56(a) says the court should state its reasons for granting or denying the motion, Florida’s rule says shall, and the Court warned that a conclusory statement will not do.

Timing differs as well. Under Rule 1.510 as amended effective January 1, 2025, the nonmovant must serve its response, with its supporting factual position, no later than 40 days after service of the motion. Any hearing must be set at least 10 days after that deadline, unless the parties stipulate or the court orders otherwise. The federal rule lets a party move until 30 days after discovery closes, unless a local rule or court order sets another time, and it sets no response deadline of its own. Both rules protect a nonmovant who has not had the chance to find its evidence. Under Rule 56(d) or Rule 1.510(d), it can show why by affidavit or declaration and ask the court to defer the motion or allow more discovery.

Where your draft will be decided

A motion for summary judgment is an argument about a record, and a motion to dismiss is an argument about a pleading. Either one stands or falls on two things a reader can check: the standard it states, and the authority it cites for each step. That is also where an AI draft needs the closest checking. A model can state the Rule 56 standard in fluent prose and attach a case that does not exist, or a real case that does not say what the draft claims.

In the activity, the Motion Drafter asks which court and which motion before it writes, so decide first: federal or Florida, summary judgment or dismissal. When the Authority Verifier lists the draft’s citations, check each one against the rule text on The Florida Bar’s rules page (opens in a new tab) or Cornell’s site, and against the opinion itself. Go item by item, the way the D.C. Circuit went through Mrs. Catrett’s record. Then let the Counterargument Generator attack the draft, and read its response the way a nonmovant would. Where does the record, or the complaint, still leave something for a jury?