Squandering the last word: the misuse of reply affidavits in summary judgment proceedings.

• Author: Moberly, Michael D.

"This who-has-the-last-word problem ... is inherent in the litigation process; the party who replies has the last word." (1)

1. Introduction II. Procedural Rules That May Be Invoked When Submitting Reply Affidavits in Support of Summary Judgment A. Federal Rule 56(c) and Corresponding Local Rules B. The Requirements for Affidavit Submission under Fed. R. Civ. P. 6(c)(2) 1. Rule 6(c)(2) Requires That Supporting Affidavits Be Served "With" a Motion 2. Rejecting Litigation by Ambush: Tishcon Corp. v. Soundview Communications, Inc. 3. Replying To Factual Matters Initiated by the Nonmovant: Not Ambush, But Still Not Within the Contemplation of Rule 6(c)(2) C. Other Potential Mechanisms for Submitting Reply Affidavits 1. Standards for Amendment Embodied in Federal Rule 6(b) 2. Curing Deficiencies Through Rule 56(e) III. Avoidable Consequences: Effective Discovery as a Means of Avoiding the Need for Reply Affidavits IV. Be Careful What You Wish For: A Movant Permitted to Submit Reply Affidavits Rarely Should Do So A. Reply Affidavits and the Absence of a Genuine Issue of Material Fact Are Almost Always Mutually Exclusive 1. Genuine Factual Disputes and Sham Affidavits B. In Attempting to Demonstrate the Absence of Material Factual Disputes, Reply Affidavits Are Distinctly Immaterial V. Reply Affidavits: The Key to Perpetual Briefing and Enemy of the Last Word VI. Conclusion I. INTRODUCTION

   Rule 56 of the Federal Rules of Civil Procedure ("Federal Rules") governs summary judgment proceedings in federal courts. (2) In a federal civil action, either party may move for summary judgment with or without supporting affidavits under Rule 56. (3) The other party then has an opportunity to respond to the motion with or without affidavits to establish the existence of a genuinely disputed issue of fact for trial. (4) Summary judgment is appropriate only if the evidence submitted by the parties or otherwise on file with the court establishes that there is no such triable issue and that the moving party is entitled to judgment as a matter of law. (5)

   In outlining the procedure to be followed in summary judgment proceedings, Rule 56 recently was amended, effective December 1, 2009, to provide for the first time for the moving party's submission of a reply brief. (6) Local rules of practice in a number of jurisdictions were, and remain, similarly silent with respect to reply briefs. (7) On the other hand, many courts routinely permit the submission of reply briefs, often under a local rule authorizing such submissions. (8) The opportunity to reply enables the moving party to respond to the arguments asserted in opposition to its motion. (9) The moving party may also provide clarification of its own arguments in its reply. (10) Allowing the moving party to have the final word on these matters may facilitate the in-depth consideration of the motion arguably inherent to summary judgment. (11)

   However, in the past, not all courts permitted reply briefs. (12) Even when a reply brief is allowed, the court might not permit the moving party to include additional evidence in support of its motion for summary judgment. (13) Regardless, the submission of reply affidavits is relatively common in summary judgment proceedings. (14) Notably, nothing in the Federal Rules expressly authorizes or prohibits the submission of such evidentiary material. (15)

   Rule 83 authorizes a district court to "adopt and amend rules governing its practice" in accordance with the federal rules. (16) While some federal district courts have attempted to fill the void in the Federal Rules through the enactment of local rules, others lack rules addressing the issue. (17) Moreover, the local rules that do exist are not consistent in their treatment of the issue. (18) As a result, there is considerable uncertainty among the courts--not to mention litigants--concerning the propriety of reply affidavits in summary judgment proceedings. (19) This uncertainty has generated considerable litigation over the propriety of reply affidavits. (20)

   This article seeks to illuminate the intricacies of reply affidavit rule variations. (21) The article begins with a discussion of the federal procedural rules that bear most directly upon the propriety of reply affidavits. (22) The article then explores methods for avoiding the need to submit reply affidavits. (23) Next, the authors address the potential strategic pitfalls of reply affidavits, regardless of the procedural propriety of submitting them. (24) Finally, the article discusses the effect of reply affidavits upon the Rule 56 objective of promoting the prompt and efficient resolution of cases. (25) The authors ultimately conclude that affidavits should rarely, if ever, be submitted with a reply brief in support of a motion for summary judgment. (26) The moving party instead should use its reply to call to the court's attention any shortcomings in the opposing party's factual submissions and to refine the legal arguments supporting its motion. (27)

2. PROCEDURAL RULES THAT MAY BE INVOKED WHEN SUBMITTING REPLY AFFIDAVITS IN SUPPORT OF SUMMARY JUDGMENT

   1. Federal Rule 56(c) and Corresponding Local Rules

      Rule 56 of the Federal Rules establishes the general structure for summary judgment proceedings. (28) However, until the amendment to the rule that became effective December 1, 2009, the rule did not address the opposing party's submission of briefs or memoranda in opposition to the motion, or the moving party's submission of reply papers. (29) Instead, the submission of responsive and reply memoranda was, and largely remains, governed by local court rules enacted pursuant to the district courts' authority under Rule 83. (30) Some of these local rules require the filing of responsive briefs well in advance of any hearing on the motion. (31) In addition, a number of district courts purport to require the opposing party to submit its controverting affidavits at the same time it files its opposing brief. (32) These requirements presumably ensure that the moving party has an opportunity to formulate a reply to the opposing party's legal and factual assertions before the court rules on the motion. (33)

      However, local summary judgment rules are enforceable only to the extent that they do not conflict with Rule 56. (34) Until recently, Rule 56 provided that any affidavits submitted in opposition to a summary judgment motion need only be served before the day of the hearing. (35) The analysis in Wilson v. Sysco Food Services of Dallas, Inc., (36) suggests that this aspect of Rule 56 may supersede local rules purporting to require nonmovants to submit the opposing affidavits sufficiently in advance of the hearing to enable the moving party to reply to that evidence. (37)

      The plaintiff in Wilson submitted an affidavit in opposition to the defendants' summary judgment motion approximately two months after the court-established deadline for submitting her opposing brief. (38) Rather than attempting to reply to the plaintiff s affidavit, the defendants moved to strike the affidavit on the grounds that it was untimely. (39) The defendants argued that the local rule required that the plaintiff file the affidavit concurrently with, or at least by the deadline for submitting, the plaintiff's opposing brief. (40) Many federal district courts follow this practice. (41)

      The court in Wilson refused to strike the plaintiff s affidavit, holding that under the federal rules, opposing affidavits need not be filed with a responsive brief. (42) Rather, the Wilson court held that Rule 56(c) permitted the nonmoving party to submit its affidavits in opposition to the motion up until the day before the hearing. (43) Because no hearing on the defendants' summary judgment motion had been scheduled when the plaintiff submitted her affidavit, the court held that the affidavit was timely and could be considered in deciding the motion. (44)

      The Wilson court also recognized that Rule 56 did not contain a comparable provision permitting the moving party to submit affidavits supporting its motion up until the day before the hearing. (45) Instead, Rule 56 required that the opposing party be given notice of the filing of the motion and, by implication, any supporting affidavits, at least ten days in advance of the hearing. (46) The purpose of this requirement is to give the opposing party an opportunity to submit its own controverting affidavits or other responsive evidence in order to demonstrate the existence of a genuine issue of material fact for trial. (47) Thus, the opposing party cannot take full advantage of this opportunity unless it receives notice of the evidence supporting the motion that it is required to refute when it submits its controverting evidence. (48)

      The fact that the opposing party was entitled to at least ten days (and now has twenty-one days) to prepare and file its controverting affidavits and may withhold the affidavits until just days before the hearing, suggests that the rules' drafters did not contemplate the routine submission of reply affidavits. (49) Indeed, by waiting until shortly before the hearing to submit its affidavits and mailing copies to the moving party in accordance with Rule 5(b), the opposing party may actually prevent the moving party's reply. (50) Federal courts are not particularly receptive to such a tactic. (51) Nevertheless, the fact that it was, until very recently, permitted by the applicable rules is a persuasive indication that the drafters intended the opposing party to be the last party to submit evidence in connection with a summary judgment motion. (52)

   2. The Requirements for Affidavit Submission under Fed. R. Civ. P. 6(c)(2)

      1. Rule 6(c)(2) Requires That Supporting Affidavits Be Served "With" a Motion

         Reading Rule 56 in conjunction with Rule 6(c)(2) bolsters the view that the rules' drafters did not contemplate reply affidavits. (53) Like Rule 56, Rule 6(c)(2) confirms the moving party's right to submit...