Summary Judgment — Rulemaking

The Summary Judgment Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure held a mini-conference in New York yesterday (Monday, 1/29/07). No conclusions were reached, and the Subcommittee’s deliberations remain tentative. But a number of interesting proposals for amending Rule 56 discussed.

The most significant issue concerns whether to include in the rule a requirement that the movant file with every motion, and the opponent dispute in its opposition, a statement of uncontested fact (‛SUF“), as required by many local district court rules in many variants today. There was a lively discussion as to whether SUFs are of value in complex cases (in which the complexity can militate against any utility) or simple cases (in which they may not be needed). A number of the judges indicated that they often find SUFs useful in identifying disputed issues of fact. Attention was given to possibly shortening SUFs by limiting them to uncontested ‛material“ facts. Another alternative — permitting counsel by agreement to opt out of the requirement __ was also discussed.

The the Subcommittee is also considering putting more realistic timing requirements into the Rule. One proposal would permit summary judgment motions to be made any time after the complaint is filed until 30 days after the close of discovery but no later than 60 days before trial. A responding party would have 21 days to respond (which several people suggested was too short) and the movant 14 days to reply. A number of participants suggested that permitting a motion to be made as late 60 days before trial is too late, and that the timing didn’t mesh neatly with Rules 26(a)(2) or (a)(3).

The Subcommittee is considering codifying the Supreme Court’s summary judgment trilogy. This could include drafting obligations in terms of who bears the trial burden. Concern was expressed that burdens shift, are borne by different parties at different times, so that mentioning ‛trial burden“ in the rule may not ultimately prove helpful.

The quality of the evidence needed to obtain or defeat summary judgment was also the topic of discussion. Requiring evidence that is ‛admissible“ could effectively mandate the filing of certifications from document custodians (something none of the participants seemed to think would be helpful), speculation as to the availability of witnesses and the like. Thought was giving to using some variant of requiring evidence that ‛may be admissible.“

The Subcommittee is also considering a separate subdivision on partial summary judgment, to bring the rule more into line with actual practice. This was discussed in connection with the question of what sort of findings and conclusions should be necessary both for summary judgment in full and for partial summary judgment.

Finally, there was discussion of placing in the rule either a meet-and-confer or pre-motion conference requirement. Opinion on the desirability of such provisions was decidedly split.

The Subcommittee will deliberate further and submit to the full Committee its thoughts, and perhaps a proposal, for the Committee’s consideration at the next Committee meeting on April 18-19, 2007, in Brooklyn.

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