TO: Joint Procedure Committee
FROM: Andy Forward
DATE: September 10, 2009
RE: Rule 56, N.D.R.Civ.P., Summary Judgment
Staff has prepared amendments to Rule 56 based on the federal form and style amendments. The amendments are intended make the rule more easily understood and to make style and terminology consistent throughout the rules. The amendments also aim to modernize the rule, removing references to obsolete authority and practices.
The existing rule and the federal rule are nearly identical. Subdivision (c) retains the filing time limits of 34 and 30 days that are in the existing rule. The subdivision also retains the last sentence, which is not in the federal rule, that states, "[s]ummary judgment, when appropriate, may be rendered against the moving party." The Committee may wish to discuss whether it wants to retain the slight differences between the existing rule and the federal rule.
Former federal rule 56(c), (d), and (e) stated circumstances in which summary judgment "shall be rendered," the court "shall if practicable" ascertain facts existing without substantial controversy, and "if appropriate, shall" enter summary judgment. In each place "shall" is changed to "should." The Advisory Committee noted that although there is no discretion to enter summary judgment when there is a genuine issue as to any material fact, there is discretion to deny summary judgment when it appears that there is no genuine issue as to any material fact. See Kennedy v. Silas Mason Co., 334 U.S. 249, 256-57 (1948). The Committee may wish to discuss whether it wants to use "should" rather than "shall" the proposed amendments use "should."
The federal rule is also scheduled to be amended effective December 1, 2009. The new amendments allow a party to move for summary judgment at any time, even as early as the commencement of the action. The Committee may wish to discuss whether it wants to adopt the federal amendments that take effect December 1, 2009.
The proposed amendments to Rule 56 are attached along with a copy of the amendments to the federal rule. A copy of the December 1, 2009 amendments to the federal rule are also attached.