Integrated Pretrial Attack on a Pleading: A Critical Evaluation of Michigan's New Summary Judgement Rule

Modern procedural reforms reflect diminished confidence in the demurrer or "no cause" motion as a device to dispose of non-meritorious claims before trial. The Federal Rules of Civil Procedure, setting the pattern of reform for many states, abolished the demurrer. Although a preliminary attack upon the legal sufficiency of the complaint is still permitted by a motion to dismiss under Federal Rule 12 (b) (6), the challenged pleading may be amended as a matter of course, to minimize the risk that a good claim might be lost because it was poorly pleaded. The risk that sham amendments might then be used to forestall dismissal of a claim lacking factual support is offset by the motion for summary judgment under Federal Rule 56, which enables the movant to penetrate the formal allegations of the pleading by resort to affidavits, documents, and other extrinsic proof.

This shift toward reliance on summary judgment to dispose of unworthy claims was furthered by a 1948 amendment to Federal Rule 12, which provides that a motion to dismiss may be converted into a motion for summary judgment, if matters outside the pleadings are presented to and not excluded by the court.