Except for contempt of court, there is no summary judgment at common law. For a better understanding of this get my free articleshttp://www.tarhakapowernomics.net/.
How to do a Summary Judgment Motion
Look carefully the next time that you appear before me and announce that you are present to argue your motion for summary judgment: I may be turning white. That is because it is my too frequent experience that when a summary judgment is presented, I am given a massive set of papers setting forth scores of putative facts, myriad references to the record, and case citations galore, but without anywhere a clear statement of the ground or grounds upon which the motion is based. I know that I have a lot of work ahead, and I suspect that you have made my work much more difficult than it needs to be. Below, I am going to tell you how to make it easier for me, and making it easier for me is something to which you should aspire because it makes it more likely that you will get a ruling that is expeditious and that is correct. I start by addressing motions for summary judgments made by defendants, because defendants make most motions for summary judgment, and then I briefly address motions for summary judgment made by plaintiffs
First Step
Your first step should be to reread ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp. [2] I know that you have read it before, but you should reread this important case each time that you prepare a summary judgment motion. Also, you should reread Rule 74.04 each time that you prepare a summary judgment motion, if for no other reason than that the rule may have been amended since the last time that you read it. Having refamiliarized yourself with ITT and with Rule 74.04, you should know most of what you need to know about the procedure that you must follow.
Second Step
Your second step should be to make sure that you know the elements of plaintiff’s claim. You can, of course, review the case law, but an excellent alternative is to pull out Missouri Approved Jury Instructions (MAI) and use it to prepare plaintiff’s verdict director. If you are moving for summary judgment on the basis of your affirmative defense, prepare the verdict director for the affirmative defense. And, while you are at it, take a look at your answer. In ITT the Supreme Court noticed that affirmative defenses are rarely properly pled, [1] and it is my experience that nothing has changed in this respect in the intervening years. But since the Court said that proper pleading is a prerequisite for summary judgment, you may need to amend your answer to properly plead your affirmative defense if it is the basis for your summary judgment motion. Properly pleading an affirmative defense means pleading in numbered paragraphs that set forth each of the facts that you need to prove in order to establish your affirmative defense. In any event, after you have prepared plaintiff’s verdict director or your instruction submitting your affirmative defense, or both, you should know most of the substantive law that you need to go forward.
Third Step
The third step is to prepare the first of the three
documents required by Rule 74.04: the motion for summary judgment itself. Rule
74.04(c)(1) sets forth the contents of a motion for summary judgment: “A motion
for summary judgment shall summarily state the legal basis for the motion.” (Emphasis added.) ITT states that there
are only three legal bases for a motion for summary judgment made by a
defendant: 1) that the “facts … negate … one of [plaintiff’s] elements facts,”
2) that plaintiff, “after an adequate period of discovery, has not been able to
produce, and will not be able to produce, evidence sufficient to allow the
trier of fact to find the existence of … one of [plaintiff’s] elements, and 3)
“that there is no genuine dispute as to the existence of each of the facts
necessary to support [defendant’s] properly-pleaded affirm-ative defense.” [1] I
believe that to summarily state the legal basis of a motion for summary
judgment is to state succinctly which of the three ITT grounds upon which you
are relying, and the element or elements to which the ground applies. Let me
illustrate.
Suppose that your case is a rear-end auto accident case. You have prepared a verdict director based on MAI 17.16 [1973 Revision] in getting ready to draft your documents so you know that there are only three elements to plaintiff’s claim: 1) that defendant’s automobile collided with the rear of plaintiff’s automobile, 2) that defendant was thereby negligent, and 3) that, as a direct result, plaintiff was injured. Which will you attack? It could be all three, but the likelihood is that you will go after only one. Let us suppose that it is the first element: Your position is that defendant’s car did not collide with the rear of plaintiff’s car. Now it is possible that you think that you can “negate” this element, that is, disprove that defendant’s car collided with plaintiff’s car, and it is possible that, while you cannot disprove that there was such a collision, you think that plaintiff is unable to prove that such a collision took place. If it is the former, your summary judgment motion would state as follows:
Comes now defendant, and for the legal basis of defendant’s motion for summary judgment, states that defendant’s car did not collide with the rear of plaintiff’s car.
If it is the latter, the motion would state something like this:
Comes now defendant, and for the legal basis of defendant’s motion for summary judgment, states that plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find that defendant’s automobile collided with the rear of plaintiff’s automobile.
If the basis of the motion is an affirmative defense, look at the verdict director that you have prepared to see what the elements are. Suppose that the affirmative defense is the statute of limitations. The facts that you need to establish (and the facts that you should have plead in your answer) are probably something like these: 1) that plaintiff’s damages could have been discovered not later than such and such a date, and 2) that the lawsuit was filed on such and such a date. Thus, the motion for summary judgment would state something like this:
Comes now plaintiff and states that there is no genuine dispute as to the existence of the fact that plaintiff’s damages could have been discovered not later than such and such a date and as to the existence of the fact that the petition was filed on such and such a date.
Your motion, if you have followed my advice, should be quite brief: usually one paragraph, and rarely more than two. Think of it as the rough equivalent of a point relied on in an appellate brief, and something that should be stated at least as tersely as a good point relied on.
Fourth Step
Next you prepare the second of the three documents that you need to file: the statement of uncontroverted facts. Rule 74.04(c)(1) provides that:
[t]he statement shall state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts. Attached to the statement shall be a copy of all discovery, exhibits or affidavits on which the motion relies. (Emphasis added.)
This is a real problem area. Frequently, defendants
list scores of facts (sometimes more than 100), including the “fact” that a
party said this in a pleading, the “fact” that a witness said that at a
deposition, or the “fact” that a court said the other in a published decision.
This is unhelpful. These may be facts of a sort, but they are not material
facts, and material facts are what Rule 74.04 provides for. Missouri courts
have often described material facts as those that have legal probative force as to a controlling issue. [1] The federal courts construing the term “material facts” as used in the federal rule on summary judgment have described material facts this way: “a fact or facts are material if they constitute a legal defense, or if their existence or nonexistence might affect the result of the action, or if the resolution of the issue they raise is so essential that the party against whom it is decided cannot prevail.” [2] A “factual issue that is not necessary to the decision is not material.” [3] ITT itself suggests what a material fact is. It tells us that “[t]he purpose of summary judgment under Missouri’s fact-pleading regime is to identify cases (1) in which there is no genuine dispute as to the facts, and (2) the facts as admitted show a legal right to judgment for the movant.” [4] “Insofar as the movant’s right to judgment as a matter of law depends upon the presence or absence of certain facts, the movant must also establish, by reference to the record when appropriate, that there is no genuine dispute about those material facts.” [5] (My emphasis.)
In my view, then, material facts are those facts that
ITT refers to as “element facts.” These are the facts, sometimes called the
“ultimate facts,” that are posited in the verdict director, and these are the
facts that entitle defendant to summary judgment if he disproves any of them or
if plaintiff cannot prove all of them. These are the facts that, if not proven,
have a decisive effect on the action: plaintiff cannot prevail. These are the
facts that, if they constitute an affirmative defense, have a decisive effect
on the action: plaintiff cannot prevail. There may be circumstances where there
is a material fact that is not an element fact, but I think that this would be
unusual. Certainly, neither evidence nor case law is material facts. Thus, if
plaintiff made an admission in his deposition in a rear-end case that he suffered
no damage as a result of the accident, the material fact that entitles
defendant to summary judgment is that there was
no damage, not that plaintiff testified at the deposition that there was no damage. Let me make this suggestion as an aid to distinguishing material facts from non-material facts: After you have prepared your statement of uncontroverted facts, ask yourself, after each one, whether that fact, if it be truly uncontroverted, entitles you to summary judgment. If it does not, it is probably not a material fact.
In any event, there are often only three facts that a plaintiff is required to prove, sometimes there are four, and rarely are there five or more. And rarely will a defendant seriously contend that more than one or two of those facts are facts that the defendant has negated or that plaintiff cannot prove. Therefore, defendant’s statement of uncontroverted facts should be limited to one or two paragraphs in most instances. To return to the example above, the statement of uncontroverted facts could look something like this:
Comes now defendant and asserts that the following fact is uncontroverted:
1. That defendant’s automobile did not come into collision with the rear of plaintiff’s automobile.
Or, if the basis for the summary judgment motion was the affirmative defense of statute of limitations, it might look like this:
Comes now defendant and asserts that the following facts are uncontroverted:
1. That plaintiff’s damages could have been discovered no later than such and such a date.
2. That plaintiff’s lawsuit was filed on such and such a date.
However, this would not be a complete response because Rule 74.04(c)(1) requires references to the record, which must be attached. Here is where reference is made to affidavits, depositions, and the like. Therefore, assuming that defendant can support his assertion that his automobile did not collide with plaintiff’s automobile with, say, his affidavit that he and his car were in another state at the time of the accident, and with the deposition of an independent witness to like effect, the complete statement of uncontroverted facts might look like this:
Comes now defendant and asserts that the following fact is uncontroverted:
1. That defendant’s automobile did not come into collision with the rear of plaintiff’s automobile. See: a) the affidavit of defendant asserting that he was in Alaska at the time of the accident, attached hereto as exhibit A, and b) the deposition of Walter Witness, pp. 6-7, asserting that defendant was in Alaska at the time of the accident, attached hereto as exhibit B.
Think of this as the rough equivalent of a point relied on in an appellate brief, with the citations to the attached discovery, exhibits, and affidavits taking the place of the list of cases relied on. If it is more than three pages long, you probably are doing something wrong.
Fifth Step
The third document that defendant must file is a separate legal memorandum explaining why summary judgment should be granted. It should begin with an identification of the elements of plaintiff’s claim, citing case law and MAI, or, if the motion is based on an affirmative defense, the elements of the affirmative defense, citing case law and MAI. This is vital: Unless the judge knows what the element facts are, the judge can hardly determine that defendant has negated one of those facts or that plaintiff cannot prove one of those facts, or that defendant (in the case of an affirmative defense) has proved all of those facts. After this, it is simply a matter of demonstrating that the evidentiary materials referenced in and attached to the statement of uncontroverted facts really do establish the fact or facts asserted in that statement.
This is the rough equivalent of the argument section of an appellate brief, and it is your place to display all of your argumentative and rhetorical skills. It should be as long as necessary and no longer. An important point here is that you should be honest: There is no point in citing a case for a proposition for which it really does not stand or in mischaracterizing the evidence found in the record attached to the statement. I will check the cases and the references, and it is not likely that I will be fooled if your citations and references are not accurate. And if I discover that you have not fairly referenced the record and the case law, I will come to distrust you, to the disadvantage of you, your current client, and your future clients.
How to Write a Response to a Motion for Summary Judgment
asserting that defendant was in Alaska at the time of the accident, attached hereto as exhibit B.
Think of this as the rough equivalent of a point relied on in an appellate brief, with the citations to the attached discovery, exhibits, and affidavits taking the place of the list of cases relied on. If it is more than three pages long, you probably are doing something wrong.
Fifth Step
The third document that defendant must file is a separate legal memorandum explaining why summary judgment should be granted. It should begin with an identification of the elements of plaintiff’s claim, citing case law and MAI, or, if the motion is based on an affirmative defense, the elements of the affirmative defense, citing case law and MAI. This is vital: Unless the judge knows what the element facts are, the judge can hardly determine that defendant has negated one of those facts or that plaintiff cannot prove one of those facts, or that defendant (in the case of an affirmative defense) has proved all of those facts. After this, it is simply a matter of demonstrating that the evidentiary materials referenced in and attached to the statement of uncontroverted facts really do establish the fact or facts asserted in that statement.
This is the rough equivalent of the argument section of an appellate brief, and it is your place to display all of your argumentative and rhetorical skills. It should be as long as necessary and no longer. An important point here is that you should be honest: There is no point in citing a case for a proposition for which it really does not stand or in mischaracterizing the evidence found in the record attached to the statement. I will check the cases and the references, and it is not likely that I will be fooled if your citations and references are not accurate. And if I discover that you have not fairly referenced the record and the case law, I will come to distrust you, to the disadvantage of you, your current client, and your future clients.
How to Write a Response to a Motion for Summary Judgment
First Step
Just as with the defendant, the plaintiff should begin by rereading ITT and Rule 74.04.
Second Step
The only document to be prepared is a response to motion for summary judgment, although the response may comprise more than one part. Rule 74.04(c)(2) provides that:
[t]he response shall admit or deny each of movant’s factual statements in numbered paragraphs that correspond to movant’s numbered paragraphs.
A denial may not rest upon the mere allegations or denials of the party’s pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.
Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies.
The admissions and denials, with references to the record, is the first part of the response. Assuming that defendant has correctly identified the elements of his claim, assuming that defendant has followed the court’s advice and only set forth material facts in defendant’s statement, and assuming that the motion is not based on an affirmative defense, an admission by plaintiff will entitle defendant to summary judgment. Therefore, I presume that in most cases plaintiff will deny the fact or facts asserted. But the denial must be supported by the attached record. Therefore, to return to the example that I have been using, suppose that plaintiff’s evidence that defendant’s car was the car that collided with him is plaintiff’s testimony that he saw defendant’s car hit his car from the rear, and the affidavit of Wendy Witness, who heard defendant admit that he was the one who collided with plaintiff. Defendant’s response would begin like this:
In response to defendant’s statement of uncontroverted facts, plaintiff:
1. Denies the averment of paragraph 1. See (a) the deposition of plaintiff, pp 6-9, attached hereto as exhibit A, stating that defendant was on the scene at the time of the accident, and (b) the affidavit of Wendy Witness, testifying that she saw defendant at the scene at the time of the accident, attached hereto as exhibit B.
Rule 74.04(c)(2) also provides that “[t]he response may also set forth additional material facts that remain in dispute, which shall be presented in consecutively numbered paragraphs and supported in the manner prescribed by Rule 74.04(c)(1).” This is an optional second part of a response. Note that the reference is to additional material facts, not to additional parts of the record or evidence. If the motion for summary judgment is not based on an affirmative defense, and if defendant has filed a motion that follows my advice above, a plaintiff will not set forth additional material facts because there is no additional material fact that would save him if it has already been established that there is a material fact that he cannot prove. However, if the motion is based on an affirmative defense, it is possible that plaintiff might rely on an affirmative converse (essentially an affirmative defense to an affirmative defense), and, if so, this might allow for a statement of additional material facts.
Last, Rule 74.04(c)(2) permits the inclusion in the response of “a legal memorandum explaining the legal or factual reasons why summary judgment should not be granted.” A legal memorandum should always be filed. This is the place to argue that defendant has misidentified the elements of plaintiff’s claim, that the facts that defendant has described as material are not material, that defendant’s evidence fails to negate plaintiff’s claim, that plaintiff has indeed come forward with evidence to prove his claim, that defendant has failed to properly identify all of the elements of defendant’s affirmative defense, that defendant’s materials fail to prove his affirmative defense, or that plaintiff has come forward with evidence to support plaintiff’s affirmative converse, whichever is appropriate. Once again, it is important to be scrupulously honest in discussing the case law and the record.
How to Write a Reply in Support of a Motion for Summary Judgment
There are three documents that defendant might file in reply to plaintiff’s response.
First, defendant “may file a reply memorandum of law explaining why summary judgment should be granted.” [1] You probably will want to take advantage of this opportunity.
Second, if plaintiff’s response sets forth additional facts that remain in dispute, defendant must file a statement of admissions and denials, with references to an attached record. [2] As stated above, plaintiff should have filed a statement of additional facts only if plaintiff asserts an affirmative converse to defendant’s affirmative defense.
Third, defendant may file a statement of additional material facts that he contends are undisputed. It is hard to see what additional material facts would be asserted at this juncture. Therefore, I do not expect that this opportunity will be taken advantage of, absent unusual circumstances.
How to Write a Sur-Reply in Opposition to a Motion for Summary Judgment
If defendant filed a statement of additional material facts as part of his reply (this should be rare), plaintiff must file a sur-reply, with admissions and denials, with materials attached. In such instances plaintiff may also file a sur-reply memorandum of law explaining why summary judgment should not be granted. [3] If defendant did not file a statement of additional material facts as part of his reply, no sur-reply may be filed.
Summary Judgment Motion by Plaintiff
Most summary judgment motions, of course, are made by defendants. But plaintiffs will, from time to time, make such motions, and those motions should be prepared and presented with equal care.
Again, three documents are required. The first is the motion for summary judgment itself, which must contain a summary statement of the legal basis of the motion. [1] ITT tells us that the legal basis of a summary judgment motion for a plaintiff is that there is no genuine dispute as to those material facts – all of the elements of the claim – upon which plaintiff would have had the burden of persuasion at trial, and, if an affirmative defense has been properly pled, that one or more of the facts – elements – necessary to support the affirmative defense is absent. [2] Thus, in a rear-end collision case where there is no affirmative defense, plaintiff’s summary statement of the legal basis of plaintiff’s motion (liability only) might be something like this:
Comes now plaintiff, and for the legal basis of plaintiff’s motion for summary judgment, states that there is no genuine dispute concerning the following material facts: (1) that defendant’s automobile came into collision with the rear of plaintiff’s automobile; (2) defendant was thereby negligent; (3) as a direct result of such negligence plaintiff sustained injury.
If the statute of limitations has been properly pled as a defense, the following might be added:
(4) plaintiff’s damages could not have been discovered earlier than such and such a date.
The second document is the statement of uncontroverted material facts, which (see the discussion above) are the element facts. In other words, the statement will recapitulate the legal basis in numbered paragraphs, but with the addition of references to attached portions of the record that establish each of these facts.
The third document is a memorandum explaining why
summary judgment should be granted. Again, it is vital that the memorandum set
forth, with citations to authority, the elements of plaintiff’s claim: Unless I
know what the elements of the claim are, I cannot decide that plaintiff is
entitled to summary judgment even if I determine that there is no genuine
dispute as to the facts that plaintiff has set forth. And, if there is a
properly pled affirmative defense, there should be a statement of the elements
of that defense so that I will be able to assess whether the element that you contend you have disproved is indeed an element of the defense. If defendant has pled an affirmative defense that you deem not to have been properly pled and, therefore, not requiring that negation, this would be the place to say so.
Then it is defendant’s turn to file a response. First, defendant must file admissions and denials to the statement of uncontroverted facts, together with references to attached discovery, exhibits, and affidavits. Defendant may also set forth additional material facts that remain in dispute. If plaintiff has properly included all of his element facts in his statement, there would not ordinarily be an occasion to file a statement of additional facts, but in those instances where an element has been overlooked or erroneously thought to be conceded, this might be appropriate. Last, defendant can (and should) file a memorandum explaining the legal and factual reasons why defendant contends summary judgment should not be granted. Here defendant would explain, if appropriate, why plaintiff’s statement of the elements of plaintiff’s claim or defendant’s affirmative defense is incorrect or incomplete, and certainly defendant will wish to show why plaintiff’s evidence does not, in fact, establish all of his element claims, or, at any rate, that defendant’s evidence puts at least one of those elements in genuine dispute or that defendant’s evidence places in genuine dispute the element or elements of the affirmative defense that plaintiff has attacked.
Plaintiff, then, can file a reply in support of his motion. The reply can comprise a memorandum of law, admissions and denials if defendant filed a statement of additional material facts, and a statement of additional material facts, with evidence attached. It is hard to see when one would take advantage of the latter. Last, defendant can file a sur-reply if plaintiff filed a statement of additional material facts with plaintiff’s reply. The sur-reply shall include admissions and denials and may include a memorandum of law.
Conclusion
Focus. If you are a defendant making a motion for
summary judgment, tell me whether you contend that you have negated one or more
of the elements of plaintiff’s claim or if you contend that plaintiff has not
and cannot adduce evidence that would permit plaintiff to prove one or more of
them. Tell me what the elements of plaintiff’s claim are. Tell me which one or
ones you believe that you have negated or believe plaintiff cannot prove. If you
are proceeding on the basis of an affirmative defense, tell me the elements of
your affirmative defense. If you are a plaintiff making a motion for summary
judgment, tell me the elements of your claim. Explain to me how your evidence
establishes each of these elements. Tell me the elements of the affirmative
defense and tell me how your evidence disproves at least one element. Or tell
me that the defense is not properly pled, if that is your contention. And,
above all, be honest.
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