Summary Judgment — Some Thoughts About the Proposed Amendments to Federal Rule of Civil Procedure 56

Following up on yesterday’s posting discussing the proposed amendments to Federal Rule of Civil Procedure 26(b)(2), my thoughts about the Advisory Committee's proposed amendments to Rule 56 (summary judgment) follow. The text of the proposal is available at our posting of July 4, 2008:

The version going out for public comments is a distinct improvement over the draft under consideration by the Advisory Committee in January 2008, although I still find statements of not genuinely disputable (or indisputable) facts to be an expensive sideshow. Assuming that mine is the minority view, four practical suggestions: (1) Rule 56(c)(3) needs a default; (2) Rule 56(c)(3) should be extended to the initial statements of indisputable fact, not just responses to statements; (3) it is time to retire Rule 56(h), and (4) Rule 56(f) need not be renumbered.

Acceptance/Dispute for Purposes of the Motion (56(c)(3)). What if a party says nothing about whether it is accepting or disputing a fact for all purposes as opposed to doing so only for purposes of the motion? What’s the consequence? There’s no default. The rule needs one, and the default should be that admissions or denials are made solely for purposes of the motion. There is no harm in limiting the admission or denial to the motion; there may be harm in extending it to the whole case. A point that a party may be willing to concede or is forced to fight in one constellation of claims, to make one argument before the Court on summary judgment, may be prejudicial before a jury or otherwise harmful under the post-summary judgment array of claims and relevant facts.

Statements of Indisputable Fact Should Also be for Purposes of the Motion (56(c)(3)). Statements of indisputable fact raise the same problem. Assume that the defendant moves for summary judgment on statute of limitations grounds. Its recitation of the notoriety of its misconduct is important for the motion. If the motion is lost, those statements should not become admissions for purposes of a jury trial. Lawyers will try to draft statements of indisputable fact carefully but no one is perfect. Particularly in long statements (which the Rule requires and the Note disdains), an "allegedly" may be implicit but not contained in every sentence that could be tendered before a jury. This should not be a game of "gotcha."

56(h) Should Go. I agree that sanctions should be discretionary but, as rewritten, the Rule appears to contemplate that some bad faith or dilatory affidavits may be OK. I know that isn’t intended, but 56(h) is a relic. The area is covered by Rule 11. I would just retire it.

Unnecessary Renumbering. There is no convincing reason why 56(f) has to be renumbered 56(d). The "internal logic" argument isn’t terribly strong there, and it holds no appeal for our clients who pay for the extra LEXIS or Westlaw searches to pick up both old case law and new. I am less bothered by the move of 56(c) to 56(a). I see the problem of keeping it as subdivision (c) in light of the other changes in the rule, and it is.

Even when I take issue with it, the work product of the Rules Committees is enormously impressive. If we could only arrange for legislation to go through the rulemaking process.

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