As a follow-up to my posting of yesterday, the Advisory Committee on Civil Rules of the Judicial Conference of the United States is seeking comment on a proposed rewriting of Rule 56 governing summary judgment procedures.
The amendments to Rule 56 (starting at page 34 in the link) are based in large part on local rules that various district courts around the country have issued over recent years designed to provide additional structure and clarity for the procedures to be used in filing summary judgment motions. Because the proposed changes amount to a complete rewriting of Rule 56, I set forth here the proposed new rule in its entirety.
Rule 56. Summary Judgment
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment on all or part of a claim or defense. The court should grant summary judgment if there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
(b) Time to File a Motion, Response, and Reply. These times apply unless a different time is set by local rule or the court orders otherwise in the case:(1) a party may file a motion for summary judgment at any time until 30 days after the close of all discovery;
(2) a party opposing the motion must file a response within 21 days after the motion is served or that party's responsive pleading is due, whichever is later; and
(3) any reply by the movant must be filed within 14 days after the response is served.(c) Procedures.
(1) Case-Specific Procedure. The procedures in this subdivision (c) apply unless the court orders otherwise in the case.
(2) Motion, Statement, and Brief, Response and Brief; Reply and Brief.
(A) Motion, Statement, and Brief. The movant must simultaneously file:
(i) a motion that identifies each claim or defense - or the part of each claim or defense- on which summary judgment is sought;
(ii) a separate statement that concisely identifies in separately numbered paragraphs only those material facts that cannot be genuinely disputed and entitle the movant to summary judgment; and
(iii) a brief of its contentions on the law or facts.
(B) Response and Brief by the Opposing Party. A party opposing summary judgment:
(i) must file a response that, in correspondingly numbered paragraphs, accepts or disputes - or accepts in part and disputes in part - each fact in the movant's statement;
(ii) may in the response concisely identify in separately numbered paragraphs additional material facts that preclude summary judgment; and
(iii) must file a brief of its contentions on the law or facts.
(C) Reply and Brief. The movant:
(i) must file, in the form required by Rule 56(c)(2)(B)(i), a reply to any additional facts stated by the nonmovant; and
(ii) may file a reply brief.
(3) Accept or Dispute Generally or for Purposes of Motion Only. A party may accept or dispute a fact either generally or for purposes of the motion only.
(4) Citing Support for Statements or Disputes of Fact; Materials Not Cited.
(A) Supporting Fact Positions. A statement that a fact cannot be genuinely disputed or is genuinely disputed must be supported by:
(i) citation 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
(ii) a 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.
(B) Materials Not Cited. The court need consider only materials called to its attention under Rule 56(c)(4)(A), but it may consider other materials in the record:
(i) to establish a genuine dispute of fact; or
(ii) to grant summary judgment if it gives notice under Rule 56(f).(5) Assertion that Fact is Not Supported by Admissible Evidence. A response or reply to a statement of fact may state that the material cited to support or dispute the fact is not admissible in evidence.
(6) Affidavits or Declarations. An affidavit or declaration used to support a motion, response, or reply 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.(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.(e) Failure to Respond or Properly Respond. If a response or reply does not comply with Rule 56(c) – or if there is no response or reply - the court may:
(1) afford an opportunity to properly respond or reply;
(2) consider a fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it; or
(4) issue any other appropriate order.(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant or deny the motion on grounds not raised by the motion, response, or reply; or
(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.(g) Partial Grant of the Motion. 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.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court - after notice and a reasonable time to respond – may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt.
The new rule would accomplish several procedural changes. First, it would change the current rule that says that summary judgment motions cannot be filed until at least 20 days after the commencement of the action to provide that summary judgment motions can be filed at any time within 30 days after the close of all discovery. The new rule also would set a 21-day deadline for a response, and a 14-day deadline for a reply. Those deadlines effectively would override response deadlines provided in local rules, and would provide for the right of a reply in all instances (which does not currently exist in some districts, like Massachusetts).
Second, the new rule would adopt the procedure that already exists in most districts, of requiring a separate statement of material facts, contained in numbered paragraphs with citations to record evidence that supports each contention. That would not appear to mark a change here in Maine, where Local Rule 56 already requires such a statement. The rule would require the moving party to reply to any new factual assertions contained in the opposing party’s response to the statement of material facts. That, of course, makes sense, and is provided for under Maine’s current Local Rule 56; but that would mark a change from Massachusetts’ current Local Rule 56.1, which oddly does not provide any mechanism for a moving party to reply to the respondent’s assertion of new facts in response to a summary judgment motion.
The proposed rule also would permit a party responding to its opponent’s statement of facts to argue that “the material cited to support or dispute the fact is not admissible in evidence,” which would seem to streamline the process of raising evidentiary objections to record citations and do away with the practice in some courts of requiring (or permitting) parties to file separate motions to strike portions of their opponent’s statements of facts. As the advisory committee observed, “There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.”
Interestingly, the advisory committee’s notes suggest that the “court may find it useful, particularly in complex cases, to set a limit on the number of facts the statement can identify.” I suppose the theory would be to preclude parties in some cases from filing a 100-page statement of materials facts, with hundreds of separately numbered paragraphs, in order to better focus the court on the facts that truly are both undisputed and central to the issues presented in the motion. That seems to be the crux of what the advisory committee is concerned about, noting that in “some cases the statements and responses have expanded to identification of hundreds of facts, elaborated in hundreds of pages and supported by unwieldy volumes of materials. This practice is self-defeating. To be effective, the motion should focus on a small number of truly dispositive facts.”
The proposed rule also would provide an escape hatch that typically is not found in local rules adopted by district courts. If a party fails properly to respond to a statement of material facts with appropriate record citations of its own, the proposed rule would permit – but not require – a court to remind the party of its obligations under the rules and “afford an opportunity to properly respond or reply” before deeming the facts admitted. That form of discretion is not currently recognized in Maine’s Local Rule 56(f), which provides that facts supported by record citations “shall be deemed admitted unless properly controverted.”
This proposed rule would completely rewrite Rule 56. Here in Maine, it does not appear that the changes would result in a drastic difference in summary judgment procedure compared to what is already required by local rule. For other districts, like Massachusetts, the proposed rule would provide helpful clarity to the summary judgment process that is lacking in the local rules.
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