RULE 56. SUMMARY JUDGMENT
(a) By a Claiming Party. A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim. The motion may be filed at any time after:
(1) 21 days have passed from commencement of the action; or
(2) the opposing party serves a motion for summary judgment.
(b) By a Defending Party. A party against whom relief is sought may move at any time, with or without supporting affidavits, for summary judgment on all or part of the claim.
(c) Serving the Motion; Proceedings. The motion and supporting papers must be served at least 34 days before the day set for the hearing. An opposing party must have 30 days after service of a brief to serve and file an answer brief and supporting papers. The judgment sought shall be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment, when appropriate, may be rendered against the moving party.
(d) Case Not Fully Adjudicated on the Motion.
(1) Establishing Facts. If summary judgment is not rendered on the whole action, the court shall, to the extent practicable, determine what material facts are not genuinely at issue. The court shall so determine by examining the pleadings and evidence before it and by interrogating the attorneys. It shall then issue an order specifying what facts, including items of damages or other relief, are not genuinely at issue. The facts so specified must be treated as established in the action.
(2) Establishing Liability. An interlocutory summary judgment may be rendered on liability alone, even if there is a genuine issue on the amount of damages.
(e) Affidavits; Further Testimony.
(1) In General. A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits.
(2) Opposing Party's Obligation to Respond. When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must, by affidavits or as otherwise provided in this rule, set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment shall, if appropriate, be entered against that party.
(f) When Affidavits Are Unavailable. If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
(g) Affidavit Submitted in Bad Faith. If satisfied that an affidavit under this rule is submitted in bad faith or solely for delay, the court must order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt.
Rule 56 was amended, effective March 1, 1990; March 1, 1996; March 1, 1997; March 1, 2011.
Under subdivision (e) a party resisting a motion for summary judgment has the responsibility to draw the court's attention to the page and line of a deposition or other document containing the competent admissible evidence raising a material factual issue, or from which the trier of fact may draw an inference creating a material factual issue. First National Bank v. Clark, 332 N.W.2d 264 (N.D. 1983).
Paragraph (a)(1) was amended, effective March 1, 2011, to increase the time to move for summary judgment from 20 to 21 days after commencement of the action.
Rule 56 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of April 29-30, 2010, page 15; September 24-25, 2009, pages 23-24; April 25, 1996, pages 11-12; April 27-28, 1995, page 21; April 20, 1989, page 2; December 3, 1987, page 11; November 29, 1984, page 19; November 29-30, 1979, page 17; Fed.R.Civ.P. 56.