Rule 79.Summary Judgment

This is the rule Rule 29(d) sends a motion to when matters outside the pleadings are presented. The standard is the familiar one; the procedure has some family-specific features worth knowing.

Standard and timing

The court must grant summary judgment if the movant shows there is no genuine dispute as to any material fact and entitlement to judgment as a matter of law, and should state its reasons on the record.

A claimant may move only after a responsive pleading is due, or after the other side files a Rule 29(a)(6) motion or its own summary judgment motion. Any other party may move at any time after commencement. No motion may be filed later than the dispositive motion deadline the court or a local rule sets -- or, absent one, 90 days before trial.

Briefing

A response and supporting materials are due within 30 days after service; a reply within 15 days after the response. On timely request the court must set oral argument unless it determines the motion should be denied or the motion is uncontested.

The statements of fact

The movant files a separate statement -- not part of the memorandum -- setting out the specific facts relied on in concise, numbered sections, each citing the specific part of the record supporting it. The opposing party files a statement in the same form specifying which numbered sections are disputed and the facts establishing a genuine dispute. The parties may also or instead file a joint statement of undisputed facts, which may provide that a stipulation is not binding for any purpose other than the motion -- so agreeing something is undisputed for summary judgment does not concede it for trial.

Evidentiary objections go in the response or reply, or concisely in the opposing statement of facts -- not in a separate motion to strike.

When the opposing party needs discovery

Section (d) creates a named procedure. A party who cannot present essential evidence files a request titled "Request for Rule 79(d) Relief and for Expedited Hearing," supported by an affidavit addressing what evidence is beyond the party's control, where it is, what it is believed to show, how it will be obtained, how long that will take, and a Rule 9(c) certificate.

Two features matter. The request does not by itself extend the response deadline -- so a party must generally keep briefing while it is pending. And the court must hold an expedited hearing within 7 days, in person or by telephone, or set the earliest date its calendar allows. The movant need not respond at all unless it chooses to.

Failing to oppose, and judgment beyond the motion

An opposing party may not rely merely on allegations or denials of its own pleading and must set forth specific facts showing a genuine issue for trial; otherwise summary judgment shall be entered if appropriate. After notice and a reasonable time to respond, the court may grant judgment for a nonmoving party, on grounds not raised, or on its own. Where it grants less than everything, it may identify material facts not genuinely in dispute and treat them as established. An affidavit submitted in bad faith or solely for delay can draw expenses, fees, or other sanctions.