Chapter 9 - § 9.2 PLEADINGS

• Jurisdiction: Colorado

§ 9.2 Pleadings

A motion for summary judgment can be made with or without supporting affidavits.¹⁴ The motion should be accompanied by a supporting brief.¹⁵

§ 9.2.1 Affidavits

Affidavits filed in support of, or in opposition to, a motion for summary judgment: (1) must be made on personal knowledge; (2) must set forth the facts that would be admissible in evidence; and (3) must affirmatively assert that the affiant is competent to testify on the facts asserted in the affidavit. An affidavit by the party's lawyer is not sufficient to support or oppose a motion for summary judgment unless the lawyer has personal knowledge of the facts in the affidavit.¹⁶ The affidavit must set out facts that would be admissible in evidence and trial; conclusory statements without specific factual allegations are not sufficient.¹⁷ The affidavit must be notarized. Sworn or certified copies of any papers or parts referred to in the affidavit must be attached to it.¹⁸

§ 9.2.2 Responding to a Motion for Summary Judgment

The party opposing summary judgment must respond to the opposing party's motion within 15 days or by any other time ordered by the court.¹⁹ Any opposing affidavits must be filed within the same time period as required for the response brief unless otherwise ordered by the court.²⁰

A party opposing a motion for summary judgment must come forward with specific facts that show that there are genuine issues of material fact that need to be decided at trial. The opposing party can show the existence of disputed facts by using affidavits, deposition testimony, interrogatory responses, responses to requests for admission, or by any other showing of facts presented by way of admissible evidence.²¹

If the party against whom the motion for summary judgment is brought does not respond to the motion, summary judgment may, but will not necessarily, be entered. However, a failure to respond to a motion for summary judgment does not act as a confession of that motion as it would for other types of motions.²² If an unopposed motion for summary judgment appears to contain disputed issues of material fact, the motion should not be granted.²³

A party may respond to a motion for summary judgment with an assertion by affidavit under C.R.C.P. 56(f) that more discovery needs to be done in order for it to be able to respond.²⁴ The court, upon receiving a C.R.C.P. 56(f) response, may reject the response and grant the summary judgment motion without affording the responding party an...