I'm in a lawsuit and I think it should just be dismissed; Motion for Summary Judgment/Dismissal

October 22, 2021 - Categories: Legal Articles

You were just served with a lawsuit, oh no! But, when you review the facts of the lawsuit, there is no basis to the lawsuit. What does this mean? It is not unheard of you to be served with a lawsuit in which none of the facts have evidence to support them. Luckily, in most states, specifically in Florida there is motion to help with just this, a Motion for Summary Judgment. 

What does a Motion for Summary Judgment Do?
Under Florida Rules of Civil Procedure 1.510, a defendant or the person that the lawsuit is filed against can file a motion in which they allege that essentially there is no case or part of the case is not founded. So, what this means is that no matter what discovery or actions are taken by the parties, no evidence or the filing party could under no circumstance win. For example, someone files a lawsuit against you because you wore a black shirt, but at no time in your life did you own a black shirt. 

What is the point of a Motion for Summary Judgment?
To show that a motion for summary judgment is proper is a heavy burden to bare and is not a largely successful motion but sometimes it is absolutely worth pursuing as it can save you the time, frustration and expense of a full-blown lawsuit. A summary judgment does not need to invalidate the entire case to be worth pursing either. For example, using the same black shirt case, you were now sued for wearing a black shirt on Tuesday and a red shirt on Wednesday, as we saw above you don’t have a black shirt so you can move for summary judgment on that issue. Unfortunately though, you do have a red shirt so that aspect of the lawsuit may still have merit. The good news is though, with a summary judgment you can narrow the issues and cut the time and frustration of this lawsuit in half. 

How do I file a Motion for Summary Judgment? Do I have to go to a hearing for this motion?
To have success in filing a summary judgment, there must be “no genuine dispute of any material fact of the case.” In order to show there is genuine dispute, the parties must first file the motion for summary judgment. Secondly, the party must file a memorandum of law in which the filing party must show the court the law that demonstrates that a summary judgment is appropriate in this case. Once the court has a motion the parties will have to attend a hearing. In order to give the opposing party time to respond, you cannot have a hearing on a Motion for Summary Judgment for at least twenty (20) days after filing the motion. It is very important to include all exhibits and facts in your motion for summary judgment as some judges will limit the party who filed the Motion for Summary Judgment to the contents of their motion. The party in which is trying to prevent the lawsuit or part of the lawsuit from being dismissed will submit evidence to show that there are disputed facts remaining in the case that the court must hear or decide upon. 

What happens when a Motion for Summary Judgment is Successful/Granted?
After you attend your hearing (assuming the judge allows this, some will just decide based on the motion), the judge will make a decision. If the judge decides that there really are no issues in dispute and grants your Motion for Summary Judgment, then essentially your case or a part of the case is done. Nothing further in the case or on the issue in which the Summary Judgment was issued, will  not proceed further.  

Is there a proper time to file Motion for Summary Judgment?
Although it isn’t required, many times it isn’t best to file a Motion for Summary Judgment until discovery has been done. Discovery can mean depositions, Request for Productions, Interrogatories, etc. This could be helpful as well to the granting of your motion for summary judgment since this demonstrates you have no facts to dispute.

Do you need an attorney to file a Motion for Summary Judgment?
The short answer is, no. Motions for Summary Judgment though are extremely intricate and must be done correctly in order to be successful. Additionally, if you’re able to file and defend a Motion for Summary Judgment successfully, you could save yourself a ton of time, money and frustration. Therefore, often having to pay an attorney some money to draft and defend a Motion for Summary Judgment will actually save you money in the long run since the case against you could be dismissed in part of in full as a result.  

QUESTIONS: 
Question: When did you receive summons and complaint?
Importance: Need to know when served, so we can determine when an Answer must be filed and served by.

Question: How did you receive the summons and complaint? (1st class mail, certified mail, in-person, etc?)
Importance: This will also determine the deadline for filing an answer. If served by certified mail, the person may have more time to file an answer.

Question: Do you live in the state in which the lawsuit was filed, i.e. were you served in another state?
Importance: If served in another state than the original, you may have more time to file an answer.

Question: Is there more than one Defendant (you)? Is your spouse, your company, your roommate, your co-tenant, or another person also being sued with you?
Importance: We need to know if we are representing only one Defendant, or two or more Defendants. Each Defendant will require an individual separate answer to be filed, and the answers may not be identical for each person. This will affect costs and complexity.

Question:  How many allegations are there in the complaint?
Importance: If this is a complaint with 8 allegations, as opposed to a complaint with 108 allegations, the number of allegations helps us determine how complex the case may be, how time-consuming it may be to write an answer and affirmative defenses to the complaint, etc. This will affect pricing. 

Question: In general, do you agree with most or all of the allegations? Which do you disagree with? 
Importance: If the prospective client actually agrees with the allegations (for example: yes, the debt is mine, yes I owe it, yes it is $5,000, but I just don’t have the money to pay it), then that affects our affirmative defenses and improves our prospects for coming up with an agreeable settlement. If we can come to a settlement, then the case will cost less. If, on the other hand, the prospective client significantly disagrees with one or more allegations, and the stakes are high, then that will increase the chances of the case going all the way to trial, which will affect our strategy, pricing, etc.  

Question: Do you have evidence to support the allegations or evidence to disprove such allegation made in the complaint?
Importance: If the party has evidence to show that the claim is not founded or not possible, then a summary judgment may be a proper remedy. 

Question: What discovery has been done in this case?
Importance: most courts won’t allow for a summary judgment to be heard/issued until the discovery has been done, in full or at least in part. 

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