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  • Writer's picturePeter Lamont, Esq.

Motion to Dismiss vs. Summary Judgment in New Jersey | What's the Difference?

Most of us have encountered the terms, Motion to Dismiss and Motion for Summary Judgment. Perhaps you read it in a John Grisham novel or heard it in a movie such as A Few Good Men or A Civil Action. You may have even heard it being used on the news or other reality shows in relation to real life legal drama. While many people used the this terms interchangeably, there is a significant difference between a Motion to Dismiss and a Motion for Summary Judgment. In this post I explain how the two motions differ and what they could mean for your lawsuit.


A Motion to Dismiss and a Motion for Summary Judgment are both considered dispositive motions. A dispositive motion is meant to dispose of a case. In other words, these motions ask the court for a ruling that the case should be terminated before trial based on the information contained in the motion. The fact that both motions are dispositive is where any similarities between the motions end.


A Motion to Dismiss is typically filed either instead of an Answer to a Complaint or shortly after the Answer has been filed. A Motion to Dismiss focuses on the adequacy of the Complaint in connection with establishing a viable cause of action. When analyzing a Motion to Dismiss a Judge does not look at extrinsic facts, but instead focusses his analysis on the legal sufficiency of the claims alleged. In fact, New Jersey case law states:

On a motion to dismiss pursuant to R. 4:6-2(e), the Court must treat all factual allegations as true and must carefully examine those allegations "to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim. . . ." Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989).

To summarize, on a Motion to Dismiss, the Court treats the facts are true and only looks to see if the facts, as alleged, can support a viable claim. For example, in New Jersey the statute of limitations for a negligence claim is two years. Assume that a Complaint filed in 2021 deals with a negligence issues that occurred in 2005. On a Motion to Dismiss the Court would look at the statute of limitations and be able to determine that the claims cannot be permitted to move forward because the statute of limitations has expired. Thus, a Motion to Dismiss would be granted and the case would be dismissed.

The simple truth is that learning legal analysis and “to think like a lawyer” not only does not help very much in being a great trial lawyer, it is often counterproductive. You may win motions to dismiss and summary judgment motions with terrific legal analysis, but I assure you, you will not win jury trials with it. -Nancy Rapoport, Where Have All the (Legal) Stories Gone?, M/E INSIGHTS, at 7, 11 (Fall 2009)

Occasionally, a Motion to Dismiss may be granted but the Court may allow the party to amend the Complaint to attempt to remedy any deficiencies.


Unlike a Motion to Dismiss, a Summary Judgment Motion does not assume the facts are true and requires the party making the motion to show that there are no questions of fact for a jury to decide. In other works, a Motion for Summary Judgment is based heavily on the facts of the case and the evidence to support them.

The NJ Court rule governing Motions for Summary Judgment states in pertinent part, that:

"the judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact."

In general, a Motion for Summary Judgment is more complex of a motion and typically requires that all discovery (fact finding) in the case has been completed. A Motion must be supported by a statement of Undiputed Facts which cites to the evidentiary support, along with a Brief, Order and Exhibits.

Think of a Summary Judgment Motion like a trial on paper. If the filing party prevails on a Motion for Summary Judgment, the case is over and has the same effect as if there had been a trial.


While both are considered dispositive motions, a Motion to Dismiss and a Motion for Summary Judgment are very different in format, analysis, and outcome. These motions are very complex and should not be filed without the assistance of an experienced New Jersey Litigation attorney.

Do you have questions about a New Jersey lawsuit or litigation matter? Contact us Today at our Bergen County Office. Call Us at (201) 904-2211 or email Us at

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