by Wilton H. Strickland

On previous occasions I’ve discussed how to move for dismissal or for judgment on the pleadings, both of which are excellent tools for disposing of complaints that are defective on their face. It often happens, though, that a complaint is valid and offers legal grounds for relief if its allegations are taken as true. At that point it might seem as if settlement or trial are the only remaining options, but many times there is a third way: a motion for summary judgment. This sort of motion is provided for in Rule 56 of the Federal Rules of Civil Procedure and in state rules of procedure as well, whose numbering might be different but whose nature is the same.

Summary judgment becomes available when the relevant (or “material”) facts of a case are not disputed, which means that the court may issue judgment as a matter of law. It’s important to remember that the purpose of a jury is to resolve disputed facts by weighing the evidence and scrutinizing the credibility of parties and witnesses. If the relevant facts are undisputed, the jury has no role to play.

What makes a motion for summary judgment more demanding than a motion to dismiss or for judgment on the pleadings is the need to gather evidence beyond the “four corners” of the complaint. For example, a complaint alleging that the defendant stole the plaintiff’s dog is valid on its face and cannot be dismissed for failure to state a cause of action. However, if the defendant finds solid evidence that the dog died a year earlier, he can move for summary judgment and avoid a full-blown trial. Not all cases are so simple of course, and it often becomes necessary to pursue a fair amount of written discovery and conduct depositions before being in a position to request summary judgment.

Deciding Whether To File A Motion For Summary Judgment

There is a school of thought that motions for summary judgment are often futile because courts are reluctant to take matters away from a jury. I disagree with this, and I consider it an attorney’s ethical responsibility to seek summary judgment whenever the evidence and law support doing so (unless of course the client instructs otherwise). Moreover, I have found that courts are perfectly willing to grant summary judgment when circumstances warrant. Judges are human and make mistakes, as all of us do, but I rarely have met a judge who refused summary judgment purely out of a personal desire to avoid granting it.

Both Plaintiffs And Defendants Can Seek Summary Judgment

Though I introduced this article in terms of disposing of a complaint, summary judgment is not merely a defensive tool — plaintiffs are every bit as entitled to move for summary judgment if the undisputed facts show that the defendant’s denials or defenses are hollow.

Summary Judgment Can Be Total Or Partial

A party may request summary judgment on the entirety of a case or on only a sliver of it. Depending on what the evidence shows, a plaintiff could move for summary judgment on liability but leave damages to the jury. By the same token, a defendant could move for summary judgment on nine counts of the complaint but leave the tenth for the jury.

Determining Which Facts Are “Material”

A material fact is one that helps prove or disprove the pleadings by the Plaintiff (the complaint) or by the Defendant (the answer). In the example of the complaint about a stolen dog, evidence showing that the dog died previously is material, whereas evidence showing that the dog had fleas is not.

Drafting A Motion For Summary Judgment

The prospect of drafting a motion for summary judgment used to intimidate me as a young associate, but experience taught me that it’s nothing to fear. Your task is to demonstrate two simple things: 1) the material facts are undisputed (i.e., there are no “genuine issues” of material fact); and 2) you are entitled to judgment as a matter of law on those facts.

Before you delve into these steps, you should begin by stating in plain English what your position is and why you deserve to prevail on it. This will prepare the reader for what might be a large amount of information to follow, and it will entice the reader to find out how you are supporting your contentions. You should also recite the controlling legal standard for summary judgment by referencing the language of the applicable rule in your jurisdiction and any corresponding case law.

Now you’re ready to roll up your sleeves and explain in detail why summary judgment is warranted in your case.

Step 1 should be as clinical and objective as possible, since your goal here is not to argue but demonstrate the absence of a factual dispute. Compile a checklist of all relevant facts that are undisputed, making a note of the source of each one, as follows:

• The first and easiest place to find undisputed facts is the pleadings themselves. If the complaint alleges something, the plaintiff officially has admitted it. If the answer admits that an allegation in the complaint is true, the defendant officially has admitted it as well.

• Written discovery is the next treasure trove, as all responses are given under oath and treated as undisputed from the perspective of the person giving them. Documents exchanged during discovery are also quite useful, especially documents whose authenticity is not in question. Be careful, however, of relying on unsworn statements in these documents; they might constitute hearsay and, as such, cannot support summary judgment.

• Deposition transcripts are next. The most useful depositions are of the opposing party and of any hostile witnesses, since any admissions by them in your favor can be presented as yet more undisputed facts.

• If you need more facts that have not been captured in the pleadings or discovery, you can prepare and submit an affidavit of a witness having personal knowledge of those facts.

Once you’ve compiled your checklist, use it to draft a statement of material undisputed facts within the motion itself. It’s a good idea not simply to copy and paste; instead, provide a narrative that reads like a story but remains objective and well-cited throughout.

Step 2 is when it’s time to argue. If you’ve thoroughly communicated the undisputed facts, the argument should already be fairly obvious to the reader, but now you can come right out and assert what the facts have been suggesting all along — that there is no reason for the case to go to trial. Going back to the example of the complaint alleging a stolen dog, if the defendant has presented undisputed evidence that the dog died a year earlier, now the defendant openly states that he deserves summary judgment because there is no basis to hold him liable for stealing the dog.

Opposing A Motion For Summary Judgment

Just because you’ve submitted an excellent motion for summary judgment doesn’t mean that it will be granted.

The opposing party can resist summary judgment by showing that there indeed remains a disputed question of fact that is relevant to the case, such as that the dead dog in the previous example was really a twin of the dog that was stolen, making it necessary for a jury to weigh the evidence after all. Assertions alone do not suffice; the opposing party must point to, or produce, actual evidence that throws the matter into dispute. What an opposing party may not do is “manufacture” a dispute by scrambling to submit affidavits or other evidence contradicting what the party stated on the record previously.

Another frequent tactic to oppose — or at least delay — summary judgment is to argue that discovery remains incomplete and that the motion should be stayed or continued, at least until such time as the opposing party can conduct additional discovery necessary to shed light on the material facts. Yet the opposing party must demonstrate, often under oath, why the additional discovery truly is necessary.

If there indeed appears to be no disputed issue of material fact, the only basis left for opposing summary judgment is to argue that the law does not entitle the moving party to prevail. A good example is where a defendant relies on an incorrect statute of limitations to argue that the complaint is untimely. For instance, if the parties agree on the events underlying the complaint and that it was filed within four years of those events, the plaintiff can defeat a motion for summary judgment by showing that the applicable limitations period is four years rather than a shorter period urged by the defendant.

Replying In Support Of A Motion For Summary Judgment

If the party opposing summary judgment has come forward with bona fide evidence or legal arguments showing that no such relief is warranted, the burden again rests on the moving party to justify summary judgment and to give new evidence or authority in support.

If, on the other hand, the party opposing summary judgment has failed to demonstrate a disputed question of material fact or to cite contrary authority, the moving party can simply point this out and emphasizing that the burden of resisting summary judgment has not been met.

Conclusion

While it’s true that a motion for summary judgment requires more elbow grease than a motion to dismiss or for judgment on the pleadings, it remains an excellent tool that may very well avert the need for trial, which is far more demanding. Even if the motion doesn’t succeed, it often can strengthen one’s bargaining posture or narrow the issues for an eventual trial, worthwhile objectives in their own right.