Chapter 30-2 The No-Evidence Motion for Summary Judgment

• Jurisdiction: United States

30-2 The No-Evidence Motion for Summary Judgment

This section discusses Rule 166a(i)'s no-evidence motion for summary judgment as well as responses thereto.

30-2:1 Timing of Motion and Response

Unlike a traditional motion for summary judgment, a no-evidence motion may be made only "after adequate time for discovery." The rule does not define what constitutes adequate time for discovery, although the comments and subsequent case law provide guidance. Where a pretrial order prescribes the length of the discovery period or sets a date before which a no-evidence motion may not be filed, the pretrial order will ordinarily control the appropriate timing of the motion.³⁹ While filing a no-evidence motion before the end of the discovery period in the pretrial order generally would not be permitted,⁴⁰ the Court can consider other deadlines such as whether expert discovery has been concluded, whether all requested discovery has taken place, and whether the parties sought a shorter discovery period than that which was ordered by the Court. Under such circumstances, a no-evidence motion made before the completion of discovery may be appropriate, including situations where discovery has dragged on for an extended period of time⁴¹ or when additional discovery would not affect the outcome.⁴²

To complain that there has been an inadequate time for discovery, the nonmovant must notify the Court of its complaint either by filing a verified motion for continuance or an affidavit explaining the need for further discovery.⁴³ Failing to do so waives any complaint that the no-evidence motion is premature or that additional discovery is needed.⁴⁴ The Motion and/or affidavit should identify what discovery is needed and why, including any previous efforts to have obtained the needed discovery.

30-2:2 Availability of No-Evidence Motion

A party may make a no-evidence motion for summary judgment only as to a claim or defense on which the nonmovant will bear the burden of proof at trial.⁴⁵ The defendant may make a no-evidence motion for summary judgment attacking the plaintiff's negligence claim, for example. The party with the burden of proof at trial may not file a no evidence motion for summary judgment as this would effectively shift the burden of proof on the party's own claim or affirmative defense.⁴⁶

30-2:3 Movant's Burden of Pleading

The no-evidence motion has been called a "pre-trial motion for directed verdict," as it simply points out that the nonmovant has no evidence of one or more essential elements of his claim or defense.⁴⁷ The...