Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. The court generally examines the evidence presented with the motion in the light most favorable to the opposing party. While a summary judgment motion is not a substitute for trial, it is a tool that allows courts to weed out cases that do not need a trial to be resolved. It also allows the court to simplify and streamline the case so that trial is more efficient and focused on the areas of actual dispute.
Skip to content. Generally, federal court judges will want you to include a proposed judgment. On a separate piece of paper, insert the caption information. Part 3. Gather exhibits. You need to assemble the motion and include any supporting documents or exhibits. You should include as exhibits anything you cited in the motion to support a fact. For example, if you referred to the other side's deposition testimony, then you should include the relevant portions of the deposition.
You can make an exhibit by attaching an exhibition sticker to the document. Designate each exhibit as Exhibit A, Exhibit B, etc. Make several copies. Once you complete your motion, make several copies. Some courts might want you to file several copies with the original.
Go to source You also need to serve the other side with a copy. Make sure to keep a copy of the completed motion for your records. Schedule a hearing. Each court will schedule hearings in different ways. For example, in some courts you can go onto the judge's calendar and select a date and time for the motion to be heard. Go to source In other courts, the clerk will help schedule a time for the motion. You also might need to create or fill out a Notice of Hearing, which will contain the day, time, and location of the hearing.
You will need to send the Notice of Hearing to the other side when you serve a copy of your summary judgment motion. Serve a copy on the other side. You have to give the other side notice that you have filed the motion for summary judgment. Send the motion to the other side's lawyer, if they have a lawyer. Go to source Be sure to send your copy using the method stated in your certificate of service.
If you file electronically, then the electronic system often will send notification to the other side that a document has been filed. File the motion with the clerk. Take your copies and the original to the court clerk and ask to file. The clerk can stamp your copies with the filing date.
In federal court, you may file the motion electronically. Prepare for your argument. The judge will probably want to hear argument on the summary judgment motion.
Accordingly, you should prepare for your argument by doing the following: Read the other side's response.
After receiving a copy of your motion, the other side can file its own motion and ask the judge to deny summary judgment. Outline your arguments. You shouldn't get up at your hearing and read from a script. Instead, outline your key points using bullet points. Attend a motion hearing. If you've never argued before the judge, then you might want to sit in on a hearing. Also note how much time each side has to make its argument. Include your email address to get a message when this question is answered.
You Might Also Like How to. How to. More References About This Article. Co-authored by:. Co-authors: 4. Updated: September 6, Categories: Court Practice and Procedure. Thanks to all authors for creating a page that has been read 25, times. Did this article help you? Yes No. Cookies make wikiHow better. By continuing to use our site, you agree to our cookie policy. Tim Ward Nov 8, They are consolidated and substantially revised in new subdivision c 1.
The new rule allows a party to move for summary judgment at any time, even as early as the commencement of the action. If the motion seems premature both subdivision c 1 and Rule 6 b allow the court to extend the time to respond. The rule does set a presumptive deadline at 30 days after the close of all discovery.
The presumptive timing rules are default provisions that may be altered by an order in the case or by local rule. Scheduling orders are likely to supersede the rule provisions in most cases, deferring summary-judgment motions until a stated time or establishing different deadlines. Scheduling orders tailored to the needs of the specific case, perhaps adjusted as it progresses, are likely to work better than default rules.
Local rules may prove useful when local docket conditions or practices are incompatible with the general Rule 56 timing provisions. If a motion for summary judgment is filed before a responsive pleading is due from a party affected by the motion, the time for responding to the motion is 21 days after the responsive pleading is due. Rule 56 is revised to improve the procedures for presenting and deciding summary-judgment motions and to make the procedures more consistent with those already used in many courts.
The standard for granting summary judgment remains unchanged. The language of subdivision a continues to require that there be no genuine dispute as to any material fact and that the movant be entitled to judgment as a matter of law.
The amendments will not affect continuing development of the decisional law construing and applying these phrases. The first sentence is added to make clear at the beginning that summary judgment may be requested not only as to an entire case but also as to a claim, defense, or part of a claim or defense. Compare Anderson v. Liberty Lobby, Inc. Catrett , U. Subdivision a also adds a new direction that the court should state on the record the reasons for granting or denying the motion.
Most courts recognize this practice. Among other advantages, a statement of reasons can facilitate an appeal or subsequent trial-court proceedings.
It is particularly important to state the reasons for granting summary judgment. The statement on denying summary judgment need not address every available reason. But identification of central issues may help the parties to focus further proceedings. Subdivision b. The timing provisions in former subdivisions a and c are superseded.
Although the rule allows a motion for summary judgment to be filed at the commencement of an action, in many cases the motion will be premature until the nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had.
Scheduling orders or other pretrial orders can regulate timing to fit the needs of the case. Subdivision c is new. It establishes a common procedure for several aspects of summary-judgment motions synthesized from similar elements developed in the cases or found in many local rules.
Subdivision c 1 addresses the ways to support an assertion that a fact can or cannot be genuinely disputed. It does not address the form for providing the required support. Different courts and judges have adopted different forms including, for example, directions that the support be included in the motion, made part of a separate statement of facts, interpolated in the body of a brief or memorandum, or provided in a separate statement of facts included in a brief or memorandum.
Subdivision c 1 A describes the familiar record materials commonly relied upon and requires that the movant cite the particular parts of the materials that support its fact positions. Materials that are not yet in the record — including materials referred to in an affidavit or declaration — must be placed in the record. Once materials are in the record, the court may, by order in the case, direct that the materials be gathered in an appendix, a party may voluntarily submit an appendix, or the parties may submit a joint appendix.
The appendix procedure also may be established by local rule. Pointing to a specific location in an appendix satisfies the citation requirement. So too it may be convenient to direct that a party assist the court in locating materials buried in a voluminous record.
Subdivision c 1 B recognizes that a party need not always point to specific record materials. One party, without citing any other materials, may respond or reply that materials cited to dispute or support a fact do not establish the absence or presence of a genuine dispute.
And a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact. Subdivision c 2 provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.
Subdivision c 3 reflects judicial opinions and local rules provisions stating that the court may decide a motion for summary judgment without undertaking an independent search of the record. Nonetheless, the rule also recognizes that a court may consider record materials not called to its attention by the parties. Subdivision c 4 carries forward some of the provisions of former subdivision e 1.
Other provisions are relocated or omitted. The requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be attached to the affidavit or declaration is omitted as unnecessary given the requirement in subdivision c 1 A that a statement or dispute of fact be supported by materials in the record. A formal affidavit is no longer required. Subdivision d carries forward without substantial change the provisions of former subdivision f.
A party who seeks relief under subdivision d may seek an order deferring the time to respond to the summary-judgment motion. As explained below, summary judgment cannot be granted by default even if there is a complete failure to respond to the motion, much less when an attempted response fails to comply with Rule 56 c requirements. Before deciding on other possible action, subdivision e 1 recognizes that the court may afford an opportunity to properly support or address the fact.
Subdivision e 2 authorizes the court to consider a fact as undisputed for purposes of the motion when response or reply requirements are not satisfied. The fact is considered undisputed only for purposes of the motion; if summary judgment is denied, a party who failed to make a proper Rule 56 response or reply remains free to contest the fact in further proceedings.
And the court may choose not to consider the fact as undisputed, particularly if the court knows of record materials that show grounds for genuine dispute.
Subdivision e 3 recognizes that the court may grant summary judgment only if the motion and supporting materials — including the facts considered undisputed under subdivision e 2 — show that the movant is entitled to it.
Considering some facts undisputed does not of itself allow summary judgment. If there is a proper response or reply as to some facts, the court cannot grant summary judgment without determining whether those facts can be genuinely disputed. Once the court has determined the set of facts — both those it has chosen to consider undisputed for want of a proper response or reply and any that cannot be genuinely disputed despite a procedurally proper response or reply — it must determine the legal consequences of these facts and permissible inferences from them.
Subdivision e 4 recognizes that still other orders may be appropriate. The choice among possible orders should be designed to encourage proper presentation of the record. Many courts take extra care with pro se litigants, advising them of the need to respond and the risk of losing by summary judgment if an adequate response is not filed.
And the court may seek to reassure itself by some examination of the record before granting summary judgment against a pro se litigant. Subdivision f.
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