RULE 56. SUMMARY JUDGMENT
For Claimant By a Claiming
Party. A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a
declaratory judgment may, at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for summary judgment by the
adverse party, move with or without supporting affidavits for a summary judgment in the
party's favor upon all or any part thereof.
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.
For Defending Party By a Defending
Party. A party against whom a claim, counterclaim, or cross-claim
is asserted or a declaratory
judgment is sought may move, at any time, with or without supporting affidavits for a
summary judgment in the party's favor as to all or any part thereof.
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.
Motion and Proceedings Thereon
Serving the Motion; Proceedings. The motion and supporting papers must be served at least
34 days before the motion may
be heard. The adverse party shall have 30 days after service of a brief within which to serve
and file an answer brief and supporting papers. Judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in
character, may be rendered on the issue of liability alone although there is a genuine issue
as to the amount of damages. Summary judgment, when appropriate, may be rendered against
the moving party.
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.
Case Not Fully Adjudicated on Motion
Case Not Fully Adjudicated on the Motion. If on motion under this rule judgment is not rendered upon
the whole case or for all the
relief asked and a trial is necessary, the court at the hearing of the motion, by examining the
pleadings and the evidence before it and by interrogating counsel, shall if practicable
ascertain what material facts exist without substantial controversy and what material facts
are actually and in good faith controverted. It shall thereupon make an order specifying the
facts that appear without substantial controversy, including the extent to which the amount
of damages or other relief is not in controversy, and directing such further proceedings in the
action as are just. Upon the trial of the action the facts so specified shall be deemed
established, and the trial shall be conducted accordingly.
(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.
Form of Affidavits-Further Testimony-Defense
Required Affidavits; Further
Testimony. Supporting and opposing affidavits must be made on
personal knowledge, set forth such
facts as would be admissible in evidence, and show affirmatively that the affiant is competent
to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof
referred to in an affidavit must be attached thereto or served therewith. The court may permit
affidavits to be supplemented or opposed by depositions, answers to interrogatories, or
further affidavits. If a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or denials of the adverse
party's pleading, but the adverse party's response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a genuine issue for trial. If the
adverse party does not so respond, summary judgment, if appropriate, must be entered
against the adverse party.
(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.
Should it appear from
the affidavits of a party
opposing the motion that the party cannot for reasons stated present by affidavit facts
essential to justify the party's opposition, the court may refuse the application for judgment
or may order a continuance to permit affidavits to be obtained or depositions to be taken or
discovery to be had or may make such other order as is just.
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.
Affidavits Made in Bad Faith Affidavit
Submitted in Bad Faith. Should it appear to the satisfaction of the court at any time
that any of the affidavits
presented pursuant to this rule are presented in bad faith or solely for the purpose of delay,
the court shall forthwith order the party employing them to pay to the other party the amount
of the reasonable expenses which the filing of the affidavits caused the other party to incur,
including reasonable attorney's fees, and any offending party or attorney may be adjudged
guilty of contempt.
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;
Rule Fed.R.Civ.P. 56 ,
Affected: Superseded: Section
28-0911, 28-1606, NDRC 1943.