(a) By a Claiming Party. A party claiming relief may move, with or without supporting declarations, 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 declarations, for summary judgment on all or part of the claim.
(c) Serving the Motion; Proceedings.
(1) Time for Service. The motion and supporting documents must be filed at least 90 days before the day set for trial and 45 days before the day set for the hearing unless otherwise ordered. An opposing party has 30 days after service of a brief to serve and file an answer brief and supporting documents. The moving party has 14 days to serve and file a reply brief.
(2) Length of Brief.
(A) Page Limit. A principal brief or answer brief may not exceed 38 pages and a reply brief may not exceed 12 pages. Footnotes must be included in the page count.
(B) Typeface. The typeface must be 12 point or larger with no more than 16 characters per inch. The text must be double-spaced, except quotations may be single-spaced and indented.
(C) Request to Exceed Volume Limitations. Upon written application and good cause shown, the court may enlarge the page volume limits provided in this rule. The application may not exceed two pages and must be filed no later than seven days prior to the deadline for filing the brief.
(3) Judgment. The judgment sought shall be rendered if the pleadings, the discovery and disclosure materials on file, and any declarations 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) Declarations; Further Testimony.
(1) In General. A supporting or opposing declaration must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the declarant is competent to testify on the matters stated. If a document or part of a document is referred to in a declaration, a sworn or certified copy must be attached to or served with the declaration. The court may permit a declaration to be supplemented or opposed by depositions, answers to interrogatories, or additional declarations.
(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 declarations 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 Declarations Are Unavailable. If a party opposing the motion shows by declaration 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 declarations to be obtained, depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
(g) Declaration Submitted in Bad Faith. If satisfied that a declaration 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.
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.
Subdivision (c) was amended, effective March 1, 2019, to establish a deadline for serving a motion, a deadline for a reply brief and length limits for principal, answer, and reply briefs.
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).
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.
Rule 56 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
SOURCES: Joint Procedure Committee Minutes of January 30, 2020, page 25; April 27, 2018, pages 4-6; January 25, 2018, pages 4-6; September 28, 2017, pages 17-19; 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.
CONSIDERED: N.D.C.C. ch. 31-15.
CROSS REFERENCE: N.D.R.Civ.P. 11. (Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions).