Making the Motion for Summary Judgment (Federal)
 

Making the Motion for Summary Judgment (Federal)

Posted on 11-02-2018

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 and Disadvantages

Advantages to moving for summary judgment include:

  • It can end the case. If the movant is successful on a full motion for summary judgment, the motion ends the case without the time and costs associated with trial and ongoing trial court litigation. Even partial summary judgment can streamline the case and thus reduce the length of trial as well as simplify the issues for the trier of fact
  • It may facilitate settlement. Often the filing of a summary judgment motion itself facilitates settlement as the uncertainty about the motion’s outcome motivates the parties to compromise. And parties are often more motivated to settle once a court rules on a summary judgment motion, regardless of the outcome, because at that point the parties have more information about the likely litigation outcome, and the summary judgment proceedings have identified strengths and weaknesses in the parties’ respective positions. Further, filing a summary judgment motion signals to the opposing party that the movant believes strongly in the merits of its position, so strongly that it is willing to incur the time and expense of bringing a summary judgment motion.
  • It may identify key evidence. Filing a summary judgment motion can also force a party’s opponent to identify key evidence and reveal trial strategy, which may be particularly important if discovery was unsuccessful in uncovering such information.
  • It educates the judge. Moving for summary judgment gives a party the opportunity to educate the trial judge about the party’s narrative so that the judge will already have a view of the parties’ positions before the judge begins ruling on motions in limine and other trial matters.

Disadvantages to moving may include:

  • It is time consuming and expensive. Preparing a summary judgment motion that is properly supported with accurate citations to admissible evidence is time consuming and expensive. The money spent on preparing the motion (attorney’s fees and costs) is money that is no longer available for settlement. Further, if the summary judgment motion is being prepared close to trial, it can detract from valuable trial preparation time
  • It reveals trial strategy. Filing a summary judgment motion may reveal a party’s trial strategy; thus, unless the party is confident that summary judgment will be granted on a particular claim, it may make more sense to forgo summary judgment in favor of leaving the argument for trial.
  • It may prejudice the judge against you. A judge may look unfavorably upon a party that files an unsuccessful motion for summary judgment, especially if the judge does not believe its outcome was a close question. Summary judgment motions are time consuming for judges and their staffs, especially those motions with thick records, and judges do not look favorably on parties who waste the court’s time with meritless motions. There is also the risk that the judge may believe that the party filed the motions merely to increase the expense and burden on the opposing side to leverage settlement.
  • It may hurt your bargaining position. An unsuccessful summary judgment motion may place a party in a weaker bargaining position for settlement, especially if during the summary judgment process the trial judge unfavorably comments about the movant’s case.

Filing Deadlines

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:

  • The danger of prejudice
  • The length of the delay and its potential impact on judicial proceedings
  • The reason for the delay, including whether it was within the reasonable control of the movant
  • Whether the movant acted in good faith10

For example:

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.

Court-Specific Requirements

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.

Motion’s Form

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

By Trial Court

After giving the parties notice and an opportunity to be heard, the trial court can do one of the following:

  • Raise summary judgment on its own, although the better practice is to invite a party to file a motion for summary judgment on the particular claim/issue of concern to the trial judge17
  • Grant summary judgment for a non-moving party18
  • Grant summary judgment on grounds not raised by parties19

The trial judge must give the parties notice of the grounds upon which it is considering summary judgment and an opportunity for the parties to respond.20

A trial court’s failure to give notice may be deemed harmless error if the losing party nonetheless had notice of the issue and an opportunity to present evidence to support its position.21

A trial judge may also convert a Rule 12(b)(6) motion to dismiss or Rule 12(c) motion for judgment on the pleadings to a motion for summary judgment if the court considers and does not exclude material outside the pleadings. As with Rule 56(f), the parties must be given a reasonable opportunity to present evidence relevant to the motion.22

Notice of Motion

The Federal Rules require the notice of and motion for summary judgment to be served at least 14 days before the hearing.23 Most district court local rules require more time. Always check the relevant local rules.

The written notice of motion should include the following:

  • The date, time, and location of the hearing on the motion
  • The relief sought, including whether the movant is seeking full summary judgment or partial summary judgment on particular claims or issues24
  • The grounds on which the motion is based25
  • Identification of the pleadings submitted in support of the motion (e.g., which declarations, requests for judicial notice, etc.)

Local rules vary as to whether a party should identify a hearing date and time on the notice of motion. Always check the relevant local rules and standing orders of the assigned judge.

Converting a Rule 12(b)(6) or 12(c) Motion

The notice required for converting a 12(b)(6) or 12(c) motion to a motion for summary judgment varies across circuits.

Some circuits require the district court to give express notice to the parties before converting a motion to dismiss26 or motion for judgment on the pleadings27 to a motion for summary judgment.28

The U.S. Court of Appeals for the Eleventh Circuit requires that the non-movant be given a specific amount of time to submit evidence. Before the 2010 amendments to Rule 56, Rule 56(c) required a summary judgment movant to provide 10 days’ notice; thus, the Eleventh Circuit held that the court must give the parties 10 days’ notice before converting a motion to dismiss to a motion for summary judgment.29 The 10-day summary judgment notice requirement was eliminated by the 2010 amendments to Rule 5630; nonetheless, the Eleventh Circuit continues to require the district court to give a party at least 10 days to submit material in response to the conversion of a Rule 12 motion to a summary judgment motion.31

Other circuits take a more pragmatic approach to notice.32

A non-movant consents to the conversion of a Rule 12 motion to a summary judgment motion regardless of whether provided notice by submitting materials outside the pleadings.33

A trial judge’s failure to give a party a reasonable opportunity to present evidence does not require reversal if the parties were not prejudiced by the failure.34

Captioning a motion to dismiss as being in the alternative one for summary judgment may not always be sufficient notice of the possible conversion of the motion to one for summary judgment.35

Pro Se Litigants

For pro se litigants, courts impose stricter rules for notice of the conversion of a Rule 12 motion to a motion for summary judgment.36

If a party makes a Rule 12(b)(6) or 12(c) motion and relies on materials that may not properly be considered on such motions, the party should consider moving for Rule 56 summary judgment in the alternative. The non-movant is therefore on notice that it must produce evidence to oppose the motion as opposed to rely solely on the pleadings.

However, by moving for summary judgment in the alternative the movant is essentially conceding that to grant the motion to dismiss the court must consider materials outside the pleadings. The court may deny the motion to dismiss on those grounds alone and decline to consider summary judgment. The better practice may therefore be to answer the complaint and then bring an early motion for summary judgment. Such a process may result in an earlier substantive ruling than bringing a motion to dismiss with a summary judgment alternative.

Some circuits hold that before summary judgment may be granted against a pro se litigant, the litigant must be given notice of the nature of a summary judgment motion and the consequences of failing to make a proper response, including the need to submit affidavits and other evidence.37

Other circuits only require the special notice for pro se prisoner litigants because their incarcerated status makes it particularly difficult for them to learn the nature and consequences of the summary judgment motion.38

In general, the notice should:

  • Use short, ordinary, and understandable language
  • State the litigant’s obligation to submit declarations and other evidence in opposition to summary judgment
  • State that the failure to do so could result in judgment being entered against the litigant39

The only circuit to consider the issue has held that the notice need not inform the pro se litigant of the right to seek a Rule 56(d) continuance.40

The defendant should give the notice in the first instance, but the trial court may also provide the pro se prisoner litigant with the required notice.41

The failure of the movant or the court to provide the required notice to the pro se prisoner litigant is subject to a harmless error analysis.42 However, in the U.S. Court of Appeals for the Ninth Circuit, the pro se prisoner notice requirement is strictly construed; harmless error will be found only in “exceptional cases.”43

A minority of circuits hold that the notice provided by Rule 56 and any governing local rules is sufficient and that neither the defendant nor the trial court is required to give a pro se litigant, including a prisoner litigant, any additional notice.44

Regardless of which circuit a defendant is in, the defendant should ensure that its summary judgment notice provides a pro se litigant with clear, understandable notice of the nature and consequences of a summary judgment motion and the litigant’s response obligations.

Oral Argument

The Federal Rules do not require a trial court to hold oral argument on a summary judgment motion.45 If the district court’s local rules or the judge’s standing order require that a party request oral argument on a motion if desired, include the request in the notice of motion for summary judgment.

From a judge’s perspective, always request oral argument on a summary judgment motion. To fail to do so suggests to the trial judge that the party does not have enough confidence in the party’s summary judgment position so as to justify counsel’s travel to the courthouse for oral argument. Also, while the trial judge may have a tentative view prior to oral argument, oral argument can change the judge’s mind or at least help shape the judge’s decision so that it is as helpful (or as least harmful) to the party as possible.

Moving Papers/Opening Brief

The Federal Rules in conjunction with local rules will dictate the form of the memorandum. While not required by the Federal Rules, many local rules require a table of contents in briefs exceeding a certain number of pages.

The trial judge should be able to understand a party’s argument just by reading the table of contents; it is often the first thing the judge or law clerk will read in connection with the motion. Also, judges may review the briefs on an issue-by-issue basis so the table of contents should clearly direct the reader to the brief/memorandum sections addressing particular arguments.

Table of Authorities

While not required by the Federal Rules, many district court local rules require a table of authorities in briefs exceeding a certain number of pages.

When reading summary judgment motion papers, a judge often wants to review what the parties have said about a particular case. Ensure that the table of authorities accurately directs the judge to the page(s) of the brief that discuss the case and that the table of authorities includes every case cited in the brief.

Introduction and Procedural History

The introduction should summarize the party’s summary judgment argument such that when the reader is done with the introduction the reader knows:

  • Precisely what claims are at issue in the motion
  • The reasons the court should resolve those claims in the movant’s favor

A procedural history should recount the procedural aspects of the case relevant to the summary judgment motion. For example, if the non-movant received an extension of time to complete discovery, that fact should be recounted as it shows the judge that the nonmovant has had every opportunity to discover relevant facts but (according to the movant) is still unable to submit facts sufficient to defeat summary judgment. Similarly, if the trial judge invited the filing of the summary judgment motion, or gave permission for the motion’s filing, say so. Do not assume that the trial judge remembers what has happened in the case up to that point.

Statement of Facts

The statement of facts should be organized in such a manner as to tell the party’s story. Each asserted fact must be supported by accurate citation to the record.46

Legal Analysis

Organize the legal analysis on a claim-by-claim or issue-by-issue basis with liberal use of headings so it that is easy for the reader to understand the argument at a glance.

The goal of the legal analysis is to explain why drawing all inferences from the evidence in the record in the non-movant’s favor, no reasonable trier of fact could find for the plaintiff on a claim (when a defendant is the movant) or why every reasonable trier of fact would find in the plaintiff’s favor on the claim (when the plaintiff is the movant).47

It is critical that the legal analysis be supported by accurate citation to evidence in the record as the trial judge is only required to consider cited material.48 The court may, however, rely on evidence in the record even if a party does not cite to the evidence.49

Declarations or Affidavits

A declaration/affidavit submitted in support of a summary judgment motion must be based on the declarant’s personal knowledge, set out facts that would be admissible in evidence at trial, and show that the declarant is competent to testify on the matters stated.50

A declaration, instead of a notarized affidavit, is acceptable provided the declaration is signed under penalty of perjury.51 The declaration should be signed with the following: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).”52 An undated declaration may be stricken as non-compliant with 28 U.S.C.S. § 1746.53

If after giving a party notice and an opportunity to be heard, a court finds that a declaration or affidavit was submitted on summary judgment in bad faith or for the purposes of delay, the court may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result of the submission of the declaration or affidavit. The court may impose other appropriate sanctions on the offending party or attorney.54

A declaration may not be disregarded merely because it is selfserving.55 Its self-serving nature bears on the weight to be given by the trier of fact and not whether on summary judgment the trial judge must draw all reasonable inferences from the declaration testimony.56

Exhibits

Exhibits must be authenticated before they can be considered on summary judgment.57 Authentication requires the submitting party to produce evidence sufficient to support a finding that the item is what the submitting party claims it is.58

From a judge’s perspective, think twice before objecting to a summary judgment exhibit on the grounds that it was not properly authenticated. Most judges expect that a party will not object unless there is a genuine question as to authenticity.

In advance of filing a summary judgment motion, meet and confer with opposing counsel and stipulate to the authenticity of documents so that the parties do not have to expend resources to authenticate documents not in dispute.

Pleadings from Other Cases

To admit pleadings from other cases, the submitting party should submit a Motion for Judicial Notice. Pleadings from the current case do not need to be attached as exhibits; the briefs may simply refer to the pleadings since they are part of the case file.

Deposition Transcripts

To authenticate a deposition transcript, attach the deposition cover page and reporter’s certificate.59 An attorney cannot authenticate a deposition transcript even if the attorney was present at the deposition.60

Written Discovery Responses

The movant can support the summary judgment motion with verified answers to interrogatories and responses to requests for admissions.61 The trial court can consider the content of interrogatory responses provided the responses would be admissible if testified to at trial.62

For example, in one case, the appellate court stated that interrogatory responses based on the responding party’s personal knowledge should have been considered by the trial court on summary judgment since the responding party could testify to those facts at trial; however, the district court properly disregarded the interrogatory responses based on hearsay not subject to any exception.63

Responses to requests for admissions from an opposing party are proper summary judgment exhibits.64 The responses are admissible non-hearsay as the statement of a party opponent.65

Documents

All documents submitted in support of a motion for summary judgment must be authenticated. Documents produced by the opposing party are deemed authenticated.66

Attach documents to an attorney declaration attesting that the documents were produced by the opposing party.67

Documents can be authenticated by deposition or declaration testimony of a witness with personal knowledge.68 Documents can also be authenticated based on their distinctive characteristics considered together with all the circumstances.69

Audio and Video

Videos and audio may be authenticated by personal knowledge of a person present during the taping as well as circumstantial evidence.70

Judicial Notice

On summary judgment, a court may take judicial notice of a fact that is not subject to reasonable dispute because of one of the following:

  • It is generally known within the trial court’s territorial jurisdiction
  • The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned71

A court must take judicial notice of a fact if requested by a party and the party supplies the necessary information.72 A court may also take judicial notice of a fact without a party request.73

Courts typically take judicial notice of matters of public record, such as pleadings from other cases, filings with the Securities and Exchange Commission, and records and reports of administrative bodies.74 Courts may also take notice of any fact that is indisputably “common knowledge.”75

Examples include:

  • In a false imprisonment lawsuit involving a big box store, the court could take judicial notice that the store had emergency exits because such fact is “common knowledge.” Court could take notice of existence of emergency exits on summary judgment even though plaintiffs disclaimed knowledge of the exits, and knowledge of the exits’ existence was imputed to the plaintiffs.76
  • In a products liability action, the trial court erred in taking judicial notice that by 1969 it was common knowledge that smoking caused certain specific illnesses.77

Statement of Undisputed Facts

Although not required by the Federal Rules, many local rules and judge’s case management rules require the submission of separate or joint statements of undisputed facts in connection with the filing of a summary judgment motion.

A joint statement of undisputed facts identifies those material facts that the parties agree are undisputed.78 Each identified undisputed fact should be followed with a citation to the evidence in the record supporting that undisputed fact.79

A separate statement of undisputed facts identifies those material facts the submitting party contends are undisputed.80 Each identified undisputed fact should be followed with a citation to the evidence in the record supporting that undisputed fact.81

Many local rules provide that the failure to file a joint or separate statement with the summary judgment rule may be grounds for denying the motion.82

Leave sufficient time before the deadline for filing the summary judgment motion to obtain the opposing party’s views on a joint statement of undisputed facts. The moving party should prepare the statement of facts the party contends are undisputed, with citation to evidence, and then forward to the opposing party for agreement or dispute.

From a judge’s perspective, some parties appear to dispute every fact, even if the fact is not material to the summary judgment motion’s outcome, or even if the fact is not genuinely in dispute in a material way. A party will have more credibility with a judge if it agrees that certain facts are undisputed. A party should agree that a fact is undisputed even if it does not believe the fact is material.

Proposed Order/Judgment

Although not required by the Federal Rules, some local rules require the moving party to submit a proposed judgment (if moving for full summary judgment) or order (if moving for partial summary judgment). The proposed order/judgment should identify each claim/issue upon which the party is moving.

Even if not required, it is often helpful to the judge to submit a proposed order/judgment. The judge can review the proposal to quickly identify the claims/issues raised by the motion and use it to ensure the judge’s order has considered everything at issue. The moving party should confirm that the proposed order/judgment is consistent with what is set forth in the moving papers.

Replies and Sur-Replies

Reply memoranda are not required by the Federal Rules of Civil Procedure, but most local rules allow replies as of right (and a few district courts allow sur-replies as of right as well).83 Always file a reply if permitted to do so, even if it is just to say that the nonmovant does not oppose the summary judgment motion.

The reply memorandum must be filed by the deadline set by local rule or the trial judge.

Content

Respond to each argument made in the opposition; the reply should not merely repeat what was in the original moving brief. If the opposing party did not address a claim/argument made in the moving papers, use the reply to point that omission out to the trial court. A district court may construe a failure to address an issue raised in a summary judgment motion as a non-opposition.

Address and distinguish, if necessary, significant cases cited in the summary judgment opposition.

The reply should not make new arguments or submit new evidence that could have been submitted with original opening brief/memorandum. If it does, the district court should not consider the new evidence or argument without giving the opposing party the opportunity to respond.84 A party that does not challenge the introduction of new evidence or argument in a reply memorandum may be deemed to have waived any objection on appeal.85

The non-movant may move to strike a reply brief, or the portions therein, that improperly raise new arguments or evidence.86 If the non-movant moves to strike a reply memorandum, consider moving in the alternative to file a sur-reply and submit responding evidence. Trial judges prefer to decide summary judgment motions on the merits and that often requires more than one round of briefing for an issue to be fully addressed.

Objecting to Summary Judgment Opposition Evidence

The reply is the movant’s opportunity to object to the admissibility of any evidence submitted in connection with the summary judgment opposition. Review the district court’s local rules to determine if the objections must be made in the reply memorandum itself or in a separate pleading.

Even if objections can be made in a separate pleading, address the admissibility of especially important evidence in the reply itself so that the trial judge can more easily evaluate the objection in connection with its relevance to the summary judgment motion.

The failure to object to evidence submitted in opposition to summary judgment does not waive any objections to the admissibility of the same evidence at trial.87

Objecting to Evidence Submitted with Reply

If the local rules permit the filing of a sur-reply, use the sur-reply to object to the inadmissibility of evidence submitted with the reply.

Failure to object to the district court’s consideration of evidence submitted in connection with a reply may waive the objection for summary judgment purposes.88

The Seventh Circuit has held that there is no requirement that a party seek leave to file a sur-reply to address evidence submitted with a reply in order to preserve the objection for appeal where the local rules do not permit a sur-reply as of right.89

Format

Present the summary judgment moving papers in a format that complies with the district court’s local rules and standing orders, but also presents the papers in the most readable and accessible format possible. The trial judge should be able to easily find the evidence cited to in the papers.

The local rules and standing orders of particular judges frequently dictate the summary judgment papers’ format, including page length, font size, paper margins, and presentation of exhibits, among other things. Do not file any summary judgment papers without first ensuring that the papers comply with the applicable local rules and standing order.

If an attorney has not previously filed papers in a particular district or before a specific judge, the attorney should check the electronic filing records of a recent summary judgment case before the judge in which a party is represented by a reputable law firm to view an example of properly formatted summary judgment papers.

Paper Copies

Review the local rule or standing order deadline for submission of hard copy courtesy copies to chambers (if such copies are required).

Place the summary judgment papers (memorandum of law, declarations, exhibits, request for judicial notice) in a binder with tabs clearly identifying each document in the binder so that the trial judge can easily find a referenced declaration or exhibit, etc. If applicable, chambers copies should bear the electronic case files (ECF) stamp (case number, docket number, date, and ECF page number) along the top of the page.

All exhibits should be clearly delineated with labels along the right side or the bottom so that the trial judge can quickly find a soughtafter exhibit. Where there are many exhibits, consider placing them in a binder with a table of contents.

For courts utilizing electronic filing, where possible refer to the ECF number of any pleading to which a paper refers. For example, when citing to a declaration, cite to the ECF number of the declaration with a pin cite to the ECF page number. While a party may not be able to cite to the ECF number of pleadings being filed at the same time, the opposing party can cite to the ECF number of any of the moving papers, and a reply can cite to the ECF number of the original moving papers and the opposition papers.


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.


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RESEARCH PATH: Civil Litigation > Motions > Dispositive Motions > Practice Notes

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). 17. Fed. R. Civ. P. 56(f) advisory committee note to 2010 amendment. 18. Fed. R. Civ. P. 56(f)(1). 19. Fed. R. Civ. P. 56(f)(2). 20. Willey v. Kirkpatrick, 801 F.3d 51, 62–63 (2d Cir. 2015) (reversing grant of summary judgment on issues not raised by moving party because the trial court did not give non-movant notice and an opportunity to respond). 21. Kannady v. City of Kiowa, 590 F.3d 1161, 1170 (10th Cir. 2010). 22. Fed. R. Civ. P. 12(d). 23. Fed. R. Civ. P. 6(c)(1). 24. Fed. R. Civ. P. 7(b)(1)(C); Fed. R. Civ. P. 56(a). 25. Fed. R. Civ. P. 7(b)(1)(B). 26. Fed. R. Civ. P. 12(b)(6). 27. Fed. R. Civ. P. 12(c). 28. Jones v. Automobile Ins. Co., 917 F.2d 1528, 1532 (11th Cir. 1990); In re Rockefeller Ctr. Props. Sec. Litig., 184 F.3d 280, 287–88 (3d Cir. 1999). 29. Jones, 917 F.2d 1528. 30. Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendment (Subdivision (b). 31. Michel v. NYP Holdings, Inc., 816 F.3d 686, 701 (11th Cir. 2016). 32. See, e.g., Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (holding that formal notice is not required where a party “should reasonably have recognized the possibility that the motion might be converted into one for summary judgment [and] was [neither] taken by surprise [nor] deprived of a reasonable opportunity to meet facts outside the pleadings”); Wysocki v. IBM, 607 F.3d 1102, 1105 (6th Cir. 2010) (holding that fact that motion included materials outside pleadings and made reference to district court’s ability to convert motion to summary judgment was sufficient to put non-movant on notice). 33. San Pedro Hotel Co. v. City of L.A., 159 F.3d 470, 477 (9th Cir. 1998); Collier v. City of Chicopee, 158 F.3d 601, 603 (1st Cir. 1998); Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260–61 (4th Cir. 1998); Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996). 34. Russell v. Harman Int’l Indus., 773 F.3d 253, 255 (D.C. Cir. 2014) (holding that trial court’s failure to give the non-movant the opportunity to present evidence upon conversion of a motion to dismiss to a motion for summary judgment was harmless error because the non-movant’s evidence would still not defeat summary judgment) 35. See Sahu v. Union Carbide Corp., 548 F.3d 59, 67–68 (2d Cir. 2008). 36. See, e.g., Hernandez, 582 F.3d at 307–308 (“pro se parties must have ‘unequivocal’ notice of the meaning and consequences of conversion to summary judgment.”); Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984). 37. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999); Griffith v. Wainwright, 772 F.2d 822, 825 & n.6 (11th Cir. 1985); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979). 38. Rand v. Rowland, 154 F.3d 952, 960–61 (9th Cir. 1998) (en banc); Kincaid v. Vail, 969 F.2d 594, 599 (7th Cir. 1992); Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); see also United States v. Ninety-Three Firearms, 330 F.3d 414, 416, 427–28 (6th Cir. 2003) (“in this circuit, nonprisoner pro se litigants are not entitled to notice of the consequences and requirements of a summary judgment motion” (emphasis added) and even if claimant were considered prisoner pro se litigant, any alleged error was harmless). 39. Rand, 154 F.3d at 960–61; Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982). 40. Crowley v. Bannister, 734 F.3d 967, 979 (9th Cir. 2013). 41. See, e.g., Rand, 154 F.3d at 960; Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Kincaid, 969 F.2d at 599. 42. Outlaw v. Newkirk, 259 F.3d 833, 841–42 (7th Cir. 2001); see also Vital, 168 F.3d at 621 (holding that the failure to advise a pro se litigant of the nature and consequences of a summary judgment motion is reversible error unless “the record otherwise makes clear that the litigant understood the nature and consequences of summary judgment”). 43. Rand, 154 F.3d at 961–62. 44. See Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992); Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001). 45. Fed. R. Civ. P. 78(b) (permitting courts to determine motions on briefs without oral argument); Himes v. United States, 645 F.3d 771, 783–784 (6th Cir. 2011); AD/SAT v. AP, 181 F.3d 216, 226 (2d Cir. 1999); see also Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (“a district court can decide [summary judgment] without oral argument if the parties can submit their papers to the court”). 46. Fed. R. Civ. P. 56(c). 47. Fed. R. Civ. P. 56(a). 48. Fed. R. Civ. P. 56(c)(3). 49. Id. 50. Fed. R. Civ. P. 56(c)(4). 51. 28 U.S.C.S. § 1746; Fed. R. Civ. P. 56(c)(4); Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013); see also Jajeh v. County of Cook, 678 F.3d 560, 568 (7th Cir. 2012) (observing that Rule 56 no longer requires a formal affidavit); Fed. R. Civ. P. 56(c) 2010 advisory committee notes (same). 52. 28 U.S.C.S. § 1746(2). 53. Bonds v. Cox, 20 F.3d 697, 702 (6th Cir. 1994). 54. Fed. R. Civ. P. 56(h). 55. Widmar v. Sun Chem. Corp., 772 F.3d 457, 459–60 (7th Cir. 2014). 56. SEC v. Phan, 500 F.3d 895, 909 (9th Cir. 2007). 57. Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). 58. Fed. R. Evid. 901(a). 59. Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009); Orr, 285 F.3d at 773. 60. Orr, 285 F.3d at 773. 61. Fed. R. Civ. P. 56(c). 62. Fed. R. Civ. P. 56(c)(A). 63. Johnson v. Holder, 700 F.3d 979, 982 (7th Cir. 2012). 64. Fed. R. Civ. P. 56(c)(1)(A). 65. Fed. R. Evid. 801(d)(2). 66. Orr, 285 F.3d at 777 n. 20; Snyder v. Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. 1988); Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1423 (10th Cir. 1991). 67. See Orr, 285 F.3d at 777 (memorandum was not properly authenticated for summary judgment purposes where submitting party did not identify who produced the document in discovery). 68. Fed. R. Evid. 901(b)(1); Orr, 285 F.3d at 777. 69. Fed. R. Evid. 901(b)(4); United States v. Fluker, 698 F.3d 988, 999–1000 (7th Cir. 2012) (email properly authenticated by circumstantial evidence). 70. Fed. R. Evid. 901(b)(2), (4), (5). 71. Fed. R. Evid. 201(b). 72. Fed. R. Evid. 201(c)(2). 73. Fed. R. Evid. 201(c)(1). 74. United States v. 14.02 Acres, 530 F.3d 883, 894 (9th Cir. 2008). 75. See, e.g., Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 579 (6th Cir. 2012). 76. Zavala v. Wal-Mart Stores Inc., 691 F.3d 527, 546 (3d Cir. 2012). 77. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1151–52 (9th Cir. 2005). 78. Sweatt v. Union Pac. R.R. Co., 796 F.3d 701, 711 (7th Cir. 2015). 79. Id. 80. Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014). 81. Id. 82. See, e.g., S.D.N.Y. & E.D.N.Y. L. Civ. R. 56.1(a) (“Failure to submit [statement of material facts as to which movant contends there is no genuine issue to be tried] may constitute grounds for denial of the motion”). 83. See, e.g., Smith v. Bray, 681 F.3d 888, 902 n.6, 903 (7th Cir. 2012). 84. See Acumed LLC v. Stryker Corp., 551 F.3d 1323, 1332 (Fed. Cir. 2008) (“Generally speaking, a court should not consider new evidence presented in a reply without giving the other party an opportunity to respond”); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (same). 85. See Getz v. Boeing Co., 654 F.3d 852, 868 (9th Cir. 2011). 86. See Bostrom v. N.J. Div. of Youth & Family Servs., 969 F. Supp. 2d 393, 418 (D.N.J. 2013). 87. Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendment. 88. See Getz, 654 F.3d at 868. 89. See Smith, 681 F.3d at 903.