Alabama summary judgment: a narrative summary, ten days out, and two days to oppose

Alabama's Rule 56 is built around a hearing date rather than a service date, and the periods it allows are among the shortest in the country.

The motion goes out ten days before the hearing. The opposition is due two days before it. And in district court both figures shrink again.

The two deadlines

Ala. R. Civ. P. 56(c)(2):

TIME. The motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing, except that a court may conduct a hearing on less than ten (10) days' notice with the consent of the parties concerned. Subject to subparagraph (f) of this rule, any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing.

Two features to note. The ten days covers "all supporting materials, including any briefs" — a brief filed later than the motion does not comply. And a shortened period requires consent, not just the court's preference.

Two days to oppose is very little. In practice the response has to be built while the motion is being read, not after.

District court cuts both in half

Rule 56(dc):

District court rule. Rule 56 applies in the district courts except that the references to thirty (30) days and ten (10) days are reduced to fourteen (14) days and seven (7) days, respectively.

The same halving appears in Alabama's default rules, where set-aside deadlines differ by court. Knowing which court you are in is the first question in any Alabama deadline. See setting aside an Alabama default.

Who may move, and when

Rule 56(a) — the claimant:

For claimant. 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 thirty (30) 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.

Rule 56(b) — the defending party:

For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.

A defendant may move at any time. A claimant must wait thirty days from commencement — unless the other side moves first, which opens the door immediately.

The narrative summary

This is Alabama's distinctive requirement, and a motion without it is incomplete.

Rule 56(c)(1):

FORM OF MOTION AND STATEMENT IN OPPOSITION THERETO. The motion shall be supported by a narrative summary of what the movant contends to be the undisputed material facts; that narrative summary may be set forth in the motion or may be attached as an exhibit. The narrative summary shall be supported by specific references to pleadings, portions of discovery materials, or affidavits and may include citations to legal authority. Any supporting documents that are not on file shall be attached as exhibits. If the opposing party contends that material facts are in dispute, that party shall file and serve a statement in opposition supported in the same manner as is provided herein for a summary of undisputed material facts.

Alabama's version is a narrative, not the numbered-paragraph statement several states require. But the support obligation is the same: specific references, not a general gesture at the record.

The opposing party's obligation mirrors it exactly — "supported in the same manner." A response that argues without a supported statement in opposition has not met the rule.

The standard

Rule 56(c)(3):

JUDGMENT. The judgment sought 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 the moving 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.

Liability can be decided even where damages remain in dispute — and such a judgment is interlocutory.

You cannot rest on the pleadings

Rule 56(e):

Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall 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 shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When 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, shall be entered against him.

Three obligations for an affidavit: personal knowledge, admissible facts, and an affirmative showing that the affiant is competent to testify. Plus the attachment rule — sworn or certified copies of anything the affidavit refers to.

And the defense requirement: a denial in the answer is not a response to a supported motion.

If two days is not enough

Rule 56(f):

When evidentiary matter is 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 deny the motion for summary 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.

This is the route where the motion arrives before you have the evidence, and Rule 56(c)(2) expressly makes the two-day opposition deadline "subject to subparagraph (f)."

The relief is affidavit-triggered. The court needs an affidavit stating the reasons you cannot present the facts — a request in a brief does not engage the rule. The court may deny the motion outright, not only continue it.

Bad faith affidavits

Rule 56(g):

Affidavits made 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 him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

The fee award is mandatory once the court is satisfied — "shall forthwith order" — and contempt reaches the party or the attorney.

A denied motion still narrows the trial

Rule 56(d):

Case not fully adjudicated on 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.

Facts fixed at the hearing "shall be deemed established" at trial. So even a losing motion can be worth filing where the goal is to narrow what has to be proved.

Where this connects

A Rule 12(b)(6) motion converts into this rule if outside material is presented and not excluded — and Alabama gives only ten days to answer after a denied Rule 12 motion. See the Alabama motion to dismiss.

How Alabama compares

A short checklist

1. Find the hearing date first. Every deadline in this rule counts backwards from it.
2. Check which court you are in. District court cuts 30 days to 14 and 10 days to 7.
3. Serve everything ten days out — motion, exhibits and briefs together.
4. Write the narrative summary and support it with specific references, not general citations to the file.
5. Attach any document not already on file.
6. If you oppose, file a statement in opposition supported the same way. Argument alone is not a response.
7. Two days is the opposition deadline. Start drafting the day the motion arrives.
8. If you need discovery, file an affidavit under Rule 56(f) — it is the express exception to the two-day rule, and the court can deny the motion outright.
9. Even if you lose, use Rule 56(d) to fix what is not genuinely in controversy for trial.

Where these rules live

• Ala. R. Civ. P. 12 — Defenses and Objections
• Ala. R. Civ. P. 56 — Summary judgment
• Ala. R. Civ. P. 6 — Time

This page explains what the rules say. It isn't legal advice, and what makes a factual issue genuine or material is developed in case law this site doesn't cover.