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By: Jim Wagstaffe and The Wagstaffe Group
This article discusses how to file a motion for summary judgment in a federal case and covers topics such as the advantages and disadvantages of moving for summary judgment, deadlines, formatting the motion, the notice of motion, memorandum of points and authorities, supporting evidence, statement of undisputed facts, replies and sur-replies, and oral argument.
A PARTY MAY MOVE FOR SUMMARY JUDGMENT ON ALL claims and defenses in a lawsuit.1 If the full motion is granted, it results in an appealable final judgment in the moving party’s favor.2 If the trial court grants summary judgment on only some claims in the lawsuit, the order is not an appealable final judgment since there are still claims and/or defenses in the case that need to be adjudicated.3
Advantages to moving for summary judgment include:
Disadvantages to moving may include:
Under the Federal Rules, a summary judgment motion can be made at any time until 30 days after close of fact discovery.4 However, judges are also required to issue scheduling orders that set deadlines for the filing of motions.5
Filing After Deadline
The trial court may refuse to hear a motion for summary judgment filed after the deadline.6 The trial judge’s refusal to hear an untimely motion for summary judgment is reviewed for abuse of discretion.7
To be permitted to file a motion for summary judgment after the deadline set forth in Federal Rule of Civil Procedure 56(a) or a court-ordered deadline, a party must make a formal motion.8 Such motion must be brought pursuant to Fed. R. Civ. P. 6(b)(1) (B) and requires a showing of excusable neglect under the Pioneer factors.9 The excusable neglect inquiry must consider all relevant circumstances surrounding the party’s omission. These include:
A district court abused its discretion when it heard and granted a motion for summary judgment made seven months after the court-ordered deadline and on the trial’s eve, but without a motion to permit a late filing. The court of appeals reversed the summary judgment order and remanded to the district court to permit the summary judgment movant to move for an extension pursuant to Fed. R. Civ. P. 6(b)(1)(B).11
Timing of Motion
While a summary judgment motion can be made at any time, it is most commonly brought after the close of fact discovery to forestall an objection that the opposing party has not had an adequate time to conduct the discovery necessary to oppose the motion.12
An early motion for summary judgment, that is, one brought before the close fact discovery, is generally most appropriate for the resolution of purely legal issues, such as the interpretation of an unambiguous contract.
If a defendant responds to a complaint with a summary judgment motion rather than a Rule 12 motion or an answer, the court may consider the defendant to have failed to timely answer and therefore to have admitted all of the complaint’s allegations. In opposing summary judgment, the plaintiff can use the admitted complaint allegations as admissible evidence.13 Thus, even an early motion for summary judgment should be brought after the movant has filed a pleading responsive to the complaint. An exception is that the U.S. Court of Appeals for the Seventh Circuit has refused to find that a movant admitted a complaint’s allegations where the movant had answered an earlier version of the complaint but did not answer the most recent version of the complaint before moving for summary judgment.14 To be safe, a party should always move for summary judgment after answering the operative complaint.
From a judge’s perspective, if a party brings an early motion for summary judgment on the grounds that it will streamline or end the case and the motion does neither, the party may lose credibility with the judge for the remainder of the case.
Some local rules and judges’ standing orders require a party to meet and confer with the opposing party before filing a motion for summary judgment.
Even if a court’s rules do not require the parties to meet and confer, it is often a good idea to do so in any event. After the meet and confer the opposing party may agree to dismiss some issues, thus saving the parties’ and the court’s resources. Even if the parties do not reach agreement on the merits of any claims or defenses, the parties can agree on the authenticity and admissibility of summary judgment evidence, thus avoiding the need for declarations or depositions to authenticate documents in the summary judgment record.
Some judges require a party to obtain the judge’s permission before filing a summary judgment motion. Check a judge’s standing orders before filing.
Although Rule 56 does not prohibit successive summary judgment motions,15 some judges limit a party to a single summary judgment motion. Before a party files an early motion or partial summary judgment motion, it should determine whether it will be allowed to file a further summary judgment motion. If not, think carefully about whether to wait and file a motion later with all possible summary judgment arguments.
A motion for summary judgment can be brought by a party, or less commonly, by the trial court. A motion for summary judgment must be in writing and cite to particular parts of the record in support of the motion.16
To read the full practice note in Lexis Practice Advisor, follow this link
James M. Wagstaffe is a renowned author, litigator, educator, and lecturer, and the premier industry authority on pretrial federal civil procedure. He is a partner and co-founder of Kerr & Wagstaffe LLP, where he heads the firm’s Federal Practice Group. See his full bio here: https://www.lexisnexis.com/en-us/practice-advisor-authors/profiles/james-wagstaffe.page.
For a comparison between a motion for summary judgment and other types of dispositive motions, watch Video:
> SUMMARY JUDGMENT—COMPARING RULES IN SUMMARY JUDGMENT: MAKING THE MOTION (FEDERAL)
RESEARCH PATH: Civil Litigation > Motions > Dispositive Motions > Practice Notes
For an understanding of the procedural rules and practices that govern the summary judgment motion, both on the moving side and the opposing side, watch Video:
> SUMMARY JUDGMENT—PROCEDURES IN SUMMARY JUDGMENT: MAKING THE MOTION (FEDERAL)
For an overview of motions for summary judgment in federal court, see
> SUMMARY JUDGMENT FUNDAMENTALS (FEDERAL)
For a detailed explanation on how to oppose summary judgment in a federal court case, see
> SUMMARY JUDGMENT: OPPOSING THE MOTION (FEDERAL)
For more information on submitting evidence with a summary judgment motion in federal court, see
> SUMMARY JUDGMENT: SUBMITTING EVIDENCE IN SUPPORT OF THE MOTION (FEDERAL)
For a checklist that may be used when making a motion for summary judgment or responding to such a motion in federal court, see
> SUMMARY JUDGMENT FUNDAMENTALS CHECKLIST (FEDERAL)
RESEARCH PATH: Civil Litigation > Motions > Dispositive Motions > Checklists
For guidance on how to file a motion for summary judgment in a federal case, see
> SUMMARY JUDGMENT: MAKING THE MOTION CHECKLIST (FEDERAL)
For assistance in creating an affidavit to be submitted with a summary judgment filing, see
> AFFIDAVIT (FEDERAL)
RESEARCH PATH: Civil Litigation > Motions > Dispositive Motions > Forms
For a discussion about the use of motions for judgment on the pleadings, see
> MOTION FOR JUDGMENT ON THE PLEADINGS: MAKING THE MOTION AND AMENDING A PLEADING IN RESPONSE (FEDERAL)
For a sample notice of motion that may be used in federal court, see
> NOTICE OF MOTION (FEDERAL)
RESEARCH PATH: Civil Litigation > Motions > Motion Practice Fundamentals > Forms
To challenge a pleading that asserts a claim for relief, by seeking dismissal for failing to state a claim upon which relief can be granted, see
> MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM: MAKING THE MOTION (FEDERAL)
For a review on how to move to dismiss a federal lawsuit based on lack of personal jurisdiction over the defendant, see
> MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION: MAKING THE MOTION (FEDERAL)
1. Fed. R. Civ. P. 56(a). 2. Fed. R. Civ. P. 54(a); Capitol Sprinkler Inspection, Inc. v. Guest Servs., 630 F.3d 217, 221 (D.C. Cir. 2011). 3. Fed. R. Civ. P. 54(b); Williamson v. UNUM Life Ins. Co. of Am., 160 F.3d 1247, 1250–51 (9th Cir. 1998). 4. Fed. R. Civ. P. 56(b). 5. Fed. R. Civ. P. 16(b); Torres v. Puerto Rico, 485 F.3d 5, 10 (1st Cir. 2007) (“the Civil Rules require a district judge to issue orders ‘as soon as practicable’ fixing deadlines for the completion of discovery and the filing of dispositive motions”). 6. See Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998) (affirming trial judge’s refusal to hear summary judgment motion because it was filed after court-ordered deadline). 7. Rosario-Diaz, 140 F.3d at 313. 8. Fed. R. Civ. P. 6(b)(1)(B); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 897 n.5 (1990). 9. Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). 10. Id. 11. Drippe v. Tobelinski, 604 F.3d 778, 784–86 (3d Cir. 2010). 12. See Fed. R. Civ. P. 56(d). 13. See Modrowski v. Pigatto, 712 F.3d 1166 (7th Cir. 2013). 14. Edelman v. Belco Title & Escrow, LLC, 754 F.3d 389 (7th Cir. 2014). 15. See Hoffman v. Tonnemacher, 593 F.3d 908, 909 (9th Cir. 2010) (a district court has discretion to entertain successive summary judgment motions). 16. Fed. R. Civ. P. 56(a)–(c), (e).