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Next Back to Employee Rights Resources Back to TLSC Home PageDisclaimer: These materials give specific information about the procedures that a litigant must follow in a suit in the San Antonio Division of the United States District Court for the Western District of Texas. Different requirements may apply under the Local Rules and standing orders of other federal courts outside the Western District of Texas. Also, the information presented in these pages is for educational purposes only, and does not constitute legal advice. Every case is different, and the correct legal answer always depends on the facts of the individual case. If you want a legal opinion about your own case, you should seek help from a licensed attorney.
A "dispositive" motion is a motion that will end all or part of the lawsuit in favor of one side. The defendant almost always will use one or more dispositive motions to try to put a quick stop to the suit to save time and money. You can try this yourself, although the chances of a complete victory are very slim. The two major dispositive motions are the motion to dismiss and the motion for summary judgment.
Rule 12(b) of the Federal Rules of Civil Procedure authorizes a defendant to ask the judge to throw your case out on one of several possible grounds. If a motion to dismiss is filed against you, it is likely to be filed under Rule 12(b)(6).[1] In such a motion (also called a "12(b)(6) motion"), the defendant asks the court to throw out your case "for failure to state a claim upon which relief may be granted." The defendant's argument is that even if everything in your complaint is true, you still can't win the lawsuit. If the judge grants this motion, all or part of your case will be dismissed, usually forever. You would still have a right to appeal the judge's decision.
A motion to dismiss might be successful if you forgot to include something that you were supposed to include in your complaint, such as one of the elements of your claims. This also might be successful if you don't satisfy some requirement for winning under the law that you used as the basis for your suit. For example, if you have a physical condition that the courts have decided can never be considered a disability under the ADA, you might be vulnerable to a motion to dismiss because even if the defendant did discriminate against you because of your condition, you aren't protected by the law.
Always file a response of some kind to let the judge know that you oppose the motion. (See Basic Motions in the San Antonio Division for information about what to put in a response.)
You may be able to solve the problem simply by amending your complaint to add the allegation or information that is missing. If the dismissal is based on some technical problem with your complaint, the judge must give you the opportunity to amend your complaint to try to fix the problem, before dismissing your case for good. In your response, be sure to ask the judge to allow you to amend your complaint to fix the problem.
In your response, you will need to make arguments in response to each point raised by the defendant. Use the employment law books described in the Bibliography section to help you understand the defendant's argument and to find caselaw (published opinions by a court) that explains why the judge should rule in your favor. File a point-by-point response following the guidelines in "Basic Motions in the San Antonio Division."
A motion for summary judgment is authorized by Rule 56 of the Federal Rules of Civil Procedure. When the defendant files a motion for summary judgment, it argues either that you cannot come up with any evidence to prove one or more elements of your legal claim(s), or that the defendant's own evidence is so strong that it "conclusively negates" (completely disproves) one or more elements of your claim(s). An "element" of your claim is simply one of the things that you must prove in order to win the lawsuit. For example, in a Title VII discrimination lawsuit, one element is "intent to discriminate." (If you need to know what the elements of your claims are, you can look this information up in the books described in the Bibliography section of this manual.) If the defendant wins on any one element of your claim, that whole claim will be decided in the defendant's favor.
To win on one element of your claim, the defendant must show that there is no "disputed fact issue" on that element. In other words, the evidence in the record is such that no reasonable jury could make a decision in your favor, even if it looked at all the evidence in your favor. The reasoning behind this rule is that if no reasonable jury could make a decision for you, the defendant shouldn't have to go through the time and expense of a trial.
Always file a response to let the judge know that you oppose the motion (See Basic Motions in the San Antonio Division for information about what to put in response). Along with your response, attach affidavits and discovery materials that contain evidence on each element that has been attacked by the defendant. In your response, tell the judge exactly where to look in the affidavits and discovery materials to find your evidence on each element. Your job is to show that a reasonable jury could find in your favor based on this evidence. Explain why the evidence helps to prove each element. And cite caselaw, if available, in which other courts found that similar or comparable evidence was enough to create a "fact question" that a jury or fact-finder should consider.
The materials you attach to your response should always contain a detailed affidavit, signed by you in front of a notary public, that explains everything that you personally saw, heard, or witnessed that supports your claim. Also, if you have witnesses who can give testimony in your favor, write out an affidavit containing the details of the facts about which those witnesses have first-hand knowledge and ask the witness to sign it in the presence of a notary public. If you have gotten answers to interrogatories, documents, or deposition testimony that support your claims, include excerpts from those materials in your response to the summary judgment. Be sure to include any evidence from which someone could infer whatever fact(s) you need to prove, even the evidence it does not directly state that fact. If you rely on an inference, be sure to explain why you believe the evidence tends to prove the fact you want to establish. If you have not had time to get the information you need through discovery, argue in your response that the judge should give you time to uncover more evidence during discovery.
You can file your own summary judgment motion, asking the court to grant you a judgment on one or more issues in the case. While the chances are very low that you could win on every issue, you might be able to win on several elements of your claims, which would simplify the lawsuit. A typical motion for summary judgment filed by a plaintiff would argue that the evidence is conclusive on one or more elements of the plaintiff's claims. Attach supporting evidence to your motion and tell the judge in the motion exactly where to find the evidence in the papers you've attached and why it supports your claim. Also, if the defendant has claimed an "affirmative defense" -- such as "business necessity" -- the defendant has the burden to produce some evidence on each element of the defense the same way you have to produce some evidence on each element of your claims in order to have a jury decide those issues. You can move for summary judgment on various elements of the defendant's affirmative defense to try to get that defense thrown out.
You will only be able to use a 12(b)(6) motion in response to a counterclaim or cross-claim filed against you by another party to the lawsuit. In that situation, the 12(b)(6) motion would work for you the same way it would work for a defendant.
[1] The other grounds under Rule 12(b) have to do with technical problems in the way your suit was filed. For example if you filed in the wrong court, or if the defendant wasn't properly notified, the defendant would use a motion to dismiss to try to correct the problem.
© 1998 Bexar County Legal Aid Association
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Next Back to Employee Rights Resources Back to TLSC Home PageThis page was last updated on: 01/03/02