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

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.


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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).