Read PDF 2009-2010 Federal Rules of Civil Procedure (FRCP) (with Committee Notes)

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Rule Summary Judgment | Federal Rules of Civil Procedure | LII / Legal Information Institute

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. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:. A citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations including those made for purposes of the motion only , admissions, interrogatory answers, or other materials; or.

B showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The court need consider only the cited materials, but it may consider other materials in the record. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:. After giving notice and a reasonable time to respond, the court may:. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact — including an item of damages or other relief — that is not genuinely in dispute and treating the fact as established in the case. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

July 1, ; Mar. This rule is applicable to all actions, including those against the United States or an officer or agency thereof.

Rule 56. Summary Judgment

Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. It has been extensively used in England for more than 50 years and has been adopted in a number of American states. New York, for example, has made great use of it.

During the first nine years after its adoption there, the records of New York county alone show 5, applications for summary judgments. In England it was first employed only in cases of liquidated claims, but there has been a steady enlargement of the scope of the remedy until it is now used in actions to recover land or chattels and in all other actions at law, for liquidated or unliquidated claims, except for a few designated torts and breach of promise of marriage.

In Michigan 3 Comp. For the history and nature of the summary judgment procedure and citations of state statutes, see Clark and Samenow, The Summary Judgment , 38 Yale L. Note to Subdivision d. Note to Subdivisions e and f. These are similar to rules in Michigan. Searl, Rule The amendment allows a claimant to move for a summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.

Thus in Peoples Bank v. Since Rule 12 a allows at least 20 days for an answer, that time plus the 10 days required in Rule 56 c means that under original Rule 56 a a minimum period of 30 days necessarily has to elapse in every case before the claimant can be heard on his right to a summary judgment.

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An extension of time by the court or the service of preliminary motions of any kind will prolong that period even further. In many cases this merely represents unnecessary delay. See United States v.

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The changes are in the interest of more expeditious litigation. The day period, as provided, gives the defendant an opportunity to secure counsel and determine a course of action. But in a case where the defendant himself serves a motion for summary judgment within that time, there is no reason to restrict the plaintiff and the amended rule so provides.

The amendment of Rule 56 c , by the addition of the final sentence, resolves a doubt expressed in Sartor v. Arkansas Natural Gas Corp. It makes clear that although the question of recovery depends on the amount of damages, the summary judgment rule is applicable and summary judgment may be granted in a proper case.


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If the case is not fully adjudicated it may be dealt with as provided in subdivision d of Rule 56, and the right to summary recovery determined by a preliminary order, interlocutory in character, and the precise amount of recovery left for trial. The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact.

Oltmer Iron Works C. Since interlocutory appeals are not allowed, except where specifically provided by statute see 3 Moore, op. See also Audi Vision Inc. Oltmer Iron Works, supra; Catlin v. United States U.

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The last two sentences are added to overcome a line of cases, chiefly in the Third Circuit, which has impaired the utility of the summary judgment device. A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matters sufficient to show that there is no genuine issue as to a material fact.

The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue.

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Halpern , F. Dennis Mitchell Industries , F. Society , 18 F. The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule.

See 6 Moore's Federal Practice 2d ed. It is hoped that the amendment will contribute to the more effective utilization of the salutary device of summary judgment. The amendment is not intended to derogate from the solemnity of the pleadings. Rather it recognizes that, despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary. Nor is the amendment designed to affect the ordinary standards applicable to the summary judgment motion.

Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.

And summary judgment may be inappropriate where the party opposing it shows under subdivision f that he cannot at the time present facts essential to justify his opposition. The language of Rule 56 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 56 a and b referred to summary-judgment motions on or against a claim, counterclaim, or crossclaim, or to obtain a declaratory judgment.

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The list was incomplete. Rule 56 applies to third-party claimants, intervenors, claimants in interpleader, and others. Amended Rule 56 a and b carry forward the present meaning by referring to a party claiming relief and a party against whom relief is sought. Similarly sparing exercise of this discretion is appropriate under Rule 56 e 2. Rule 56 d 1 , on the other hand, reflects the more open-ended discretion to decide whether it is practicable to determine what material facts are not genuinely at issue.

Former Rule 56 d used a variety of different phrases to express the Rule 56 c standard for summary judgment—that there is no genuine issue as to any material fact. Amended Rule 56 d adopts terms directly parallel to Rule 56 c. The timing provisions for summary judgment are outmoded. 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.


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  5. 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.