August 2009 #1. Summary Judgements in Hawaii.

• Author: by Ed Kemper

Hawaii Bar Journal

2009.

August 2009 #1.

Summary Judgements in Hawaii

Hawaii State Bar JournalAugust 2009Summary Judgements in Hawaiiby Ed KemperThe Hawaii Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure; Hawaii Rule 56, relating to motions for summary judgments, is very similar to the federal rule. Fortunately unlike some Hawaii rules, there is fair amount of case law relating to Hawaii Rule 56. There are, however, some different requirements regarding the Hawaii procedure under the state rule and Hawaii's Federal District Court's treatment of the rule.

This article will attempt to lay out the essential requirements no matter which court you are in and point out some procedurd differences. The state court rules and procedure will be discussed first, and then the contrast with the Federal system as applied by the local district court will be then highlighted.

Timing

The filing of the motion can take place very early in the case. A motion can be filed within 20 days from the filing of the lawsuit, but the motion cannot be filed less than 50 days prior to trial without the court's permission.(fn1 )As with other motions filed in the Circuit Court, the motion must be seived 18 days before the hearing. The adverse party must file its opposition eight days before the hearing, and the moving party may file a reply three days before the hearing.(fn2)

Rules of the Road

One of the main purposes of summary judgments is to expedite litigation and to avoid a costly trial.(fn3)

The classic statement about summary judgment is that it is only appropriate when there are no genuine issues of material facts and the case can be rendered as a matter of law for a party(fn4 )A material fact is one that could have an effect on establishing or reiuting one of the essential elements of the claim or a defense.(fn5)

Typically the moving party will use various sources to present the undisputed material facts. The rules contemplate the use of pleadings, depositions, interrogatory answers , admission responses and, most importantly dedarations or affidavits(fn6) Then based hopefully on these "undisputed" facts, a memorandum in support highlighting the facts and appropriate law should be attached to the motion.

Major Defects in the Motion

There are, however, common mislikes that practitioners make, which prevents the court from granting the motion no matter how meritorious the legal issues may be. Sometimes attorneys use pleadings to support their position. Unless there is an answer that admits important allegations of the complaint, an unverified pleading is worthless(fn7) Likewise, legal and factual statements by counsel in the memorandum in the support of the motion cannot be relied upon unless it is an admission in a pleading concerning a material fact. Legal arguments do not create a factual dispute.(fn8)

Many times the court will never reach the legal issues because of defects in the factual foundation, particularly with the affidavits or declarations. Generally, under the...