Federal Rules for a Summary Judgment

By Lindsay Nixon

Rule 56 of the Federal Rules of Civil Procedure governs summary judgments. A summary judgment is a judicial resolution without a trial where a judge may decide the entire case or part of the case on the merits when no genuine issues as to any material facts are left in the case.


A summary judgment is a judicial resolution without a trial. Through a motion for summary judgment, a judge may decide the entire case on the merits or he may grant partial judgment with respect to certain issues. The judge will first determine whether there are any genuine issues as to any material fact left in the case. If any issues remain open and debatable, the judge will not grant a full motion for summary judgment, and a trial will be ordered to decide those facts. However, if no genuine issues as to any material facts still exist, the judge will then decide whether the moving party is entitled to judgment as a matter of law.


The moving party may obtain a judgment without the time and expensive of a trial by moving for summary judgment. In short, the moving party may be able to completely avoid trial but a motion for summary judgment. In the event summary judgment is not rendered on the whole action, the court will determine what material facts are not genuinely at issue and will be treated as established facts during trial. This in turn saves the parties from having to litigate on those issues.


A motion for summary judgment must be filed with supporting evidence that demonstrates there are no outstanding issues of disputed fact and that based on those facts, the moving party is entitled to a judgment as matter of law. Pleadings, evidence obtained through discovery, disclosure materials on file and affidavits are examples of supportive evidence. The judge will review the supporting evidence to determine whether the motion for summary judgment should be granted. A party claiming relief, such as a plaintiff, may move for summary judgment after the opposing party serves a motion for summary judgment or any time after the suit is brought, provided it is not within the first 20 days of the lawsuit or less than 10 days before the hearing date. A party against whom relief is sought, such as a defendant, may move for summary judgment at any time provided it is 10 days before the hearing date.


The party not moving for summary judgment must respond to the motion for summary judgment by filing an opposition. The non-moving party cannot rely on the allegations or denials it previously set forth in its pleadings. Generally, the non-moving party will file an opposition to the motion for summary judgment and attach affidavits and other evidence that set out specific facts showing a genuine issue for trial. In short, the opposing party must demonstrate issues are still open and debatable and therefore summary judgment cannot be granted. If the opposing party does not respond, summary judgment may be entered against that party if appropriate. However, if the opposing party can demonstrate by affidavit that due to specific circumstances it cannot present essential facts to justify its opposition, the court may deny the motion for summary judgment, order a continuance to allow the opposing part to obtain the necessary facts or issue any other just order.

Expert Insight

Affidavits are crucial evidence and should be attached to motions for summary judgments and the corresponding oppositions. Supporting or opposing affidavits must be made in good faith and based on personal knowledge. The facts set out in the affidavits must be admissible evidence and the person making the affidavit must also be competent to testify to the facts stated in the affidavit if required to do so at trial. If a party submits an affidavits in bad faith or for the purposes of delaying the action, the submitting party will be required to pay the other party reasonable expenses, including attorneys fees, incurred as a result thereof.