TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 2, 2011
RE: Rule 56, N.D.R.Civ., Summary Judgment
Fed.R.Civ.P. 56 was amended, effective Dec. 1, 2010, to improve and standardize the procedures for presenting and deciding summary-judgment motions in federal court. Proposed amendments to N.D.R.Civ.P. 56, modeled on the federal amendments, are attached for the Committee's consideration.
A copy of the federal amendments, including the commentary explaining all changes in detail, is attached.
The standard for granting summary judgment is not significantly changed under the proposed amendments and the key terminology is retained - requiring that there be no genuine dispute as to any material fact and that the moving party be entitled to judgment as a matter of law. "Dispute" replaced "issue" because the federal committee thought "dispute" better reflected the focus of a summary-judgment determination.
Language was added to make clear that summary judgment may be requested as to a claim, defense, or part of a claim or defense, with a "partial summary judgment" resulting. Additional language was added indicating that the court should state on the record the reasons for granting or denying the motion.
The rule's timing provision was simplified. Given that North Dakota has commencement by service, the proposed change in the timing provision may not make much practical difference in when a party may file a summary judgment motion.
The new subdivision (c) was designed to establish a common procedure for summary judgment motions. Its provisions were synthesized from federal case law and local rule developments. Members of the committee who engage in civil practice may wish to comment on whether subdivision (c)'s provisions are consistent with practice in North Dakota.
Subdivision (e) provides options for the court to address questions that arise when a party fails to support an assertion of fact or fails to properly address another party's assertion of fact as required by new subdivision (c).
Subdivision (f) allows the court to respond to a summary judgment motion in ways other than simply granting or denying the motion, but it requires the court to give notice if it decides to make a "judgment independent of the motion." Subdivision (g) gives the court options in cases when it decides not to grant all the relief requested in a motion.