After a lawsuit is filed and before it makes it to a jury, there are oftentimes various procedural hurdles it needs to clear. Two of the most common in employment law cases are motions to dismiss and motions for summary judgment. Motions to dismiss typically come early on and are far more likely if your (former) employer/the defendant is a government entity. Motions for summary judgment typically come much later, after discovery has closed. 

This blog outlines the standards for each type of motion under federal law. But if you have been pursing your case pro se (i.e. representing yourself) and the other side files either a motion to dismiss or a motion for summary judgment, you should consider consulting with an employment lawyer right away.  

Motion to Dismiss

To defeat a motion to dismiss for failure to state a claim under Rule 12(b)(6), “the plaintiff must plead enough facts to state a claim to relief that is plausible on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal marks omitted) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Courts must accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. See Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001) (citing St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)). 

“The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim. Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)).

Motion for Summary Judgment

Summary judgment is appropriate only where the record contains no genuine dispute as to any material fact, so that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).  The moving party bears the initial burden of showing its entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Only if the moving party meets its burden is the nonmoving party required to respond to show a genuine dispute of material fact. See Fed. R. Civ. P. 56(e)(3). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).  

In making its decision, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014). “[C]ourts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan, 134 S. Ct. at 1866. As long as “reasonable minds could differ as to the import of the evidence,” such that factual disputes remain, the motion for summary judgment must be denied. Anderson, 477 U.S. at 250.