VIII. Summary Judgment in Federal Court

LibrarySword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

VIII. SUMMARY JUDGMENT IN FEDERAL COURT

The aggressive use of summary judgment motions to test the sufficiency of litigants' claims has for many years been an important part of the federal judicial process for all types of cases. In many state court systems, summary judgment is a disfavored device, regarded with heavy skepticism by trial court judges. In the federal court system, however, it is a favored tool for avoiding unnecessary trials and for narrowing the issues that require trial.151 And despite the option of raising immunity issues at the pleadings stage, summary judgment remains "the ultimate screen" for § 1983 cases in which qualified immunity is an issue.152

A. Basic Summary Judgment Procedure

Federal Rule of Civil Procedure 56 authorizes either party to seek summary judgment on any issue about which he claims no material fact is in dispute and on which he claims to be entitled to judgment as a matter of law.153 As with a motion to dismiss or a motion for judgment on the pleadings, the court reviewing a motion for summary judgment will review the law in light of the particular facts of the case to determine whether the plaintiff could be entitled to recovery or if there is some bar—such as qualified immunity— that obviates the need for a trial.154 The difference is the source of the facts that form the record. On a pleadings motion, the record is the well-pleaded factual allegations in the plaintiff's complaint. On summary judgment, the record is the evidence adduced in discovery: depositions, documents, affidavits, stipulations, admissions, interrogatory answers, and the like.155

The federal rules require that any factual assertion—whether it's that a fact cannot be disputed or that a fact is in dispute—be supported by specific citations to parts of the record.156 Many local rules take this a step further, requiring that a party filing for summary judgment file a separate, numbered statement of facts, each supported by a citation, and that the party opposing summary judgment respond to each fact specifically. Failure to follow these procedures may result in facts being deemed admitted for the purposes of summary judgment.

Rule 16(b) scheduling orders typically set a deadline for when summary judgment motions must be filed; if they do not, the default deadline is 30 days after the close of all discovery.157 But nothing requires a party to wait that long before filing; a summary judgment motion may be filed in lieu of a motion to dismiss at the beginning of the case or at any point thereafter during discovery.

The primary tool the party opposing such an early motion (typically, but not always, the plaintiff) has to forestall consideration of the motion is Rule 56(d) (which was Rule 56(f) up until the 2010 Amendments). This rule permits a party to oppose a motion for summary judgment as premature when "for specified reasons, it cannot present facts essential to justify its opposition."158 Although the Supreme Court once described the rule as permitting the denial or postponement of a summary judgment motion "if the nonmoving party has not had an opportunity to make full discovery,"159 that is in tension with its later pronouncements that summary judgment in combination with the court's active control of discovery, are the best way to "weed out unmeritorious claims sooner rather than later."160 Generally, the non-movant should make a much more specific showing in support of his Rule 56(d) motion than merely that discovery has yet to be completed. The motion must be supported by an affidavit or declaration, which should identify the particular discovery that needs to be taken, what information is expected to develop through this discovery, and how this information will be probative of a material fact issue in the case, so as to make the entry of summary judgment inappropriate.161

In response to such a motion, defense counsel may point out any failure by the plaintiff to diligently pursue discovery, which could be a basis to deny a Rule 56(d) motion.162 Plaintiff's counsel should proceed as expeditiously with discovery as the rules permit and explain any unavoidable delays in discovery to the court in the Rule 56(d) affidavit. If the non-movant meets her burden, the court may defer considering the summary judgment motion, deny it, allow time to take discovery, or take other appropriate action.163

B. Summary Judgment Standard

Unlike the motion-to-dismiss standard, which has undergone a revolution in recent years, the summary judgment standard has been largely static for the last 30 years. The leading Supreme Court cases are still the pair decided on the same day in 1986: Anderson v. Liberty Lobby164 and Celotex v. Catrett.165

In Anderson, the Court clarified the basic summary judgment standard. First, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."166 Thus, there are two key questions on any summary judgment motion: Is the factual dispute genuine? And is it material? The substantive law will determine which disputes are material; that just means whether it makes a difference to the outcome of the suit if you believe the version of the facts described by the plaintiff or those given by the defendant.167

The meatier procedural question is whether the factual dispute is genuine. The court is not supposed to act like a juror in the case, judging credibility or weighing the evidence. Rather, the court is instructed to treat all of the non-movant's evidence as true and draw all justifiable inferences in his favor.168 Having done that, the court must decide whether the non-movant has presented enough evidence on each material point so that a jury could rule in his favor at trial. If he has, the case should proceed to trial. But if the non-movant's evidence is "merely colorable" or "not significantly probative," then summary judgment should be granted.169

In Celotex, the Court highlighted the differing treatment on a summary judgment motion for the party with the burden of proof and the party without it. The defendant in Celotex used a summary judgment motion to, in effect, test whether the plaintiff could come forward with some proof of each essential element of her cause of action. The defendant did not produce any evidence of its own negating any element of the plaintiff's case. Rather, the defendant used the summary judgment motion as a device to force the plaintiff to come forward with proof in order to avoid summary judgment being granted for the defendant. The plaintiff was unable to provide acceptable proof of one essential element of her claim, and the court granted the defendant's summary judgment motion.170 The Court held that decision was correct; if the plaintiff cannot prove any element of her claim, she cannot prevail, and summary judgment is proper.171

C. Recent Developments: Crawford-El v. Britton and Scott v. Harris

Since those cases, this basic summary judgment standard has not changed. And in Crawford-El v....

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