RULE 56. SUMMARY JUDGMENT
1 (a) By a Claiming Party. A party claiming relief may move, with or without
2 supporting affidavits, for summary judgment on all or part of the claim. The
3 motion may be filed at any time after:
4 (1) 21 days have passed from commencement of the action; or
5 (2) the opposing party serves a motion for summary judgment.
6 (b) By a Defending Party. A party against whom relief is sought may move
7 at any time, with or without supporting affidavits, for summary judgment on all or
8 part of the claim.
9 (c) Serving the Motion; Proceedings. The motion and supporting papers
10 must be served at least 34 days before the day set for the hearing. An opposing
must have has 30 days after service of a brief to
serve and file an answer
12 brief and supporting papers. The moving party has 14 days to serve and file a
13 reply. The judgment sought shall be rendered if the pleadings, the discovery and
14 disclosure materials on file, and any affidavits show that there is no genuine issue
15 as to any material fact and that the moving party is entitled to judgment as a matter
16 of law. Summary judgment, when appropriate, may be rendered against the
17 moving party.
18 (d) Case Not Fully Adjudicated on the Motion.
19 (1) Establishing Facts. If summary judgment is not rendered on the whole
20 action, the court shall, to the extent practicable, determine what material facts are
21 not genuinely at issue. The court shall so determine by examining the pleadings
22 and evidence before it and by interrogating the attorneys. It shall then issue an
23 order specifying what facts, including items of damages or other relief, are not
24 genuinely at issue. The facts so specified must be treated as established in the
26 (2) Establishing Liability. An interlocutory summary judgment may be
27 rendered on liability alone, even if there is a genuine issue on the amount of
29 (e) Affidavits; Further Testimony.
30 (1) In General. A supporting or opposing affidavit must be made on
31 personal knowledge, set out facts that would be admissible in evidence, and show
32 that the affiant is competent to testify on the matters stated. If a paper or part of a
33 paper is referred to in an affidavit, a sworn or certified copy must be attached to or
34 served with the affidavit. The court may permit an affidavit to be supplemented or
35 opposed by depositions, answers to interrogatories, or additional affidavits.
36 (2) Opposing Party's Obligation to Respond. When a motion for summary
37 judgment is properly made and supported, an opposing party may not rely merely
38 on allegations or denials in its own pleading; rather, its response must, by
39 affidavits or as otherwise provided in this rule, set out specific facts showing a
40 genuine issue for trial. If the opposing party does not so respond, summary
41 judgment shall, if appropriate, be entered against that party.
42 (f) When Affidavits Are Unavailable. If a party opposing the motion shows
43 by affidavit that, for specified reasons, it cannot present facts essential to justify its
44 opposition, the court may:
45 (1) deny the motion;
46 (2) order a continuance to enable affidavits to be obtained, depositions to be
47 taken, or other discovery to be undertaken; or
48 (3) issue any other just order.
49 (g) Affidavit Submitted in Bad Faith. If satisfied that an affidavit under this
50 rule is submitted in bad faith or solely for delay, the court must order the
51 submitting party to pay the other party the reasonable expenses, including
52 attorney's fees, it incurred as a result. An offending party or attorney may also be
53 held in contempt.
54 EXPLANATORY NOTE
55 Rule 56 was amended, effective March 1, 1990; March 1, 1996; March 1,
56 1997; March 1, 2011;_____________________.
57 Under subdivision (e) a party resisting a motion for summary judgment has
58 the responsibility to draw the court's attention to the page and line of a deposition
59 or other document containing the competent admissible evidence raising a material
60 factual issue, or from which the trier of fact may draw an inference creating a
61 material factual issue. First National Bank v. Clark, 332 N.W.2d 264 (N.D. 1983).
62 Paragraph (a)(1) was amended, effective March 1, 2011, to increase the time to
63 move for summary judgment from 20 to 21 days after commencement of the
65 Subdivision (c) was amended, effective_______________, to establish a
66 deadline for a reply brief.
67 Rule 56 was amended, effective March 1, 2011, in response to the
68 December 1, 2007, revision of the Federal Rules of Civil Procedure. The language
69 and organization of the rule were changed to make the rule more easily understood
70 and to make style and terminology consistent throughout the rules.
71 SOURCES: Joint Procedure Committee Minutes of ________________;
72 April 29-30, 2010, page 15; September 24-25, 2009, pages 23-24; April 25, 1996,
73 pages 11-12; April 27-28, 1995, page 21; April 20, 1989, page 2; December 3,
74 1987, page 11; November 29, 1984, page 19; November 29-30, 1979, page 17;
75 Fed.R.Civ.P. 56.