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.
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
(b) Time to File a Motion. Unless the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
(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.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
(d) When Facts Are Unavailable to the Non-Moving Party. If a non-moving party shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the moving party is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
(1) grant summary judgment for a non-moving party;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact--including an item of damages or other relief--that is not genuinely in dispute and treating the fact as established in the case.
(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.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court--after notice and a reasonable time to respond--may 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 or subjected to other appropriate sanctions.
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 2010, revision of the Federal Rules of Civil Procedure Fed.R.Civ.P. 56. 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 and to improve the
procedures for presenting and deciding summary-judgment motions .
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.