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Occasionally we share parts of or written materials created by our speakers for our programs. Below is an excerpt on Motions for Summary Judgment from a long time speaker who also happens to be a federal court clerk at the United States District Court in California.
Motions for Summary Judgment and Partial Summary Judgment
The biggest difference between state and federal court with respect to motions for summary judgment is that a motion for summary judgment, if well-taken, is much more likely to be granted in federal court than state court. Because federal judges have their own law clerks, they are able to devote more time to motions for summary judgment, which is one of the reasons they tend to be granted more. However, because federal judges have more time and resources, they will also figure out if your motion for summary judgment is meritless. Therefore, if you are going to file a motion for summary judgment in federal court, you want to do the best job possible – it is a time-consuming motion for attorneys to draft, it is time-consuming for the Court, and it is expensive for clients.
In federal court, a party may move for summary judgment on a claim or defense, or a part of a claim or defense (partial summary judgment). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” FRCP 56(a). In ruling on a motion for summary judgment, the Court’s role is not to weigh the evidence (or make credibility determinations), but only to determine if a genuine issue of material fact exists. . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining if any genuine issues of material fact exist, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in favor of the opposing party. Matsushita Elec. Indos. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. A material fact is a fact that might affect the outcome of the suit under the governing law. Id.
The moving party has the burden of informing the Court of the basis for its motion for summary judgment, and identifying the evidence, if any, “which it believes demonstrates the absence of a genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323 (1986). That evidence can consist of the pleadings, depositions, answers to interrogatories, admissions, documents, and affidavits and declarations.
When the moving party does not have the burden of proof at trial on a dispositive issue, the moving party may meet its burden for summary judgment by showing an “absence of evidence” to support the non-moving party’s case. Id., at 325.
The non-moving party is required by Rule 56(e) to go beyond the pleadings and designate specific facts demonstrating that there is a genuine issue for trial. Id. at 324. Conclusory allegations unsupported by factual materials are insufficient to create a triable issue of fact so as to preclude summary judgment. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). However, to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that the “claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968).
Motions for summary judgment are governed by Federal Rule of Civil Procedure 56, and the time for bringing a motion for summary judgment is “any time until 30 days after the close of all discovery.”
However, this deadline will almost always be different, so, as always, you need to check the Local Rules, your judge’s local rules, and your case’s Scheduling and Case Management Order.
Motions for summary judgment can be brought as soon as you have enough uncontroverted evidence to establish your case. However, under Rule 56(d), if discovery has not yet closed, the opposing party can claim that “it cannot present facts essential to justify its opposition.” If the Court finds the opposing party’s claims meritorious, it can defer consideration of or deny the motion or allow additional time for discovery. However, Rule 56(d) requires the filing of an affidavit or declaration that demonstrates the “specified reasons” why the opposing party cannot present the facts essential to justify its opposition. Thus, conclusory statements in the brief are not enough.
And, do not forget that Local Rules may require you to meet and confer prior to filing a motion for summary judgment. See, e.g., Central District Local Rule 7-3.
Drafting Your Opening, Opposing, or Closing Brief
1. Follow the standard format for a motion: Introduction, Factual and Procedural History, Argument, Conclusion.
2. The introduction should tell the Court your side of the story in summary format, including why you win under the law and as a matter of fairness.
3. Have a theme that is presented in the introduction, and return to it throughout your brief(s).
4. Be organized! Make the Court’s job easy by making the facts and law contained in your brief easy to read, understand, and find. Headings that are meaningful are key.
5. Lead with your strongest argument.
6. But, be sure you deal with any contrary authority. Better to lose a motion than to lose your credibility with the Court. Once it’s gone, it’s extremely difficult to regain.
7. Be an advocate for your client, but do not be nasty or unprofessional.
8. Start your Opposition as soon as possible, even before you receive your opponent’s Opening Brief. The Opposition and all the supporting evidence is incredibly time consuming to draft and organize, and you may only have seven days in which to do it.
9. Some judges and law clerks really do read the Reply first, so do not simply cut and paste from your Opening Brief. The Reply is a huge opportunity to tell the Court what your opponent failed to address/argue or why their evidence and argument is inferior to yours (and, in either case, why you win).
10. Other judges and law clerks read the Statement of Undisputed Facts/Separate Statement (where required) first. Follow the format required, if one is given. Otherwise, make it easy-to-read for the Court. In addition, have as few facts as possible in your Separate Statement – not every fact you use in your brief must be in the Separate Statement, only the material facts that you are relying upon.
Tips Regarding Motions for Summary Judgment
1. Generally, all evidence must be provided to the Court, even if previously submitted in connection with another motion.
2. Organize your evidence as if for trial – tabs, labels, table of contents, etc. And, follow all the Local Rules and the judge’s local rules, no matter how silly they seem – they matter to your judge!
3. Do not submit blanket or boilerplate objections – this is a waste of time and resources.
4. Lodge a proposed order (Check Local Rules).
5. Lodge a proposed judgment (Check Local Rules).
6. If the other side files a motion for summary judgment and you agree that the issue is a matter of law, consider a cross-motion and a stipulated set of facts.
7. Do not attempt to sidestep the page limitation by filing multiple summary judgment motions or using crazy margins and/or font sizes – ask the Court for more pages if you really need them.
8. Do not assume you will have oral argument.
9. If you do have oral argument, be prepared, be prepared, be prepared.
10. Know the deadline for filing your motion for summary judgment, which is different than the last day for it to be heard.