Arizona summary judgment: thirty days to respond, and a separate statement of facts with a page limit

Arizona's Rule 56 is one of the most prescriptive summary judgment rules in the country. The standard is the familiar one, but almost everything around it is specified: when you may move, how long the papers may be, what form the facts must take, and what you must file if you need more discovery first.

A response that ignores the form requirements can fail on the form alone.

Thirty days, then fifteen

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

Opposition and reply. An opposing party must file its response and any supporting materials within 30 days after the motion is served. The moving party must serve any reply memorandum and supporting materials 15 days after the response is served.

Thirty days is generous compared with most states, but it is the whole of it — Arizona does not add mailing days to a period measured from service of the motion itself.

When you may move, and by when you must

Rule 56(b):

(1) Claimant. A claimant may move for summary judgment only after:

(A) the date when a responsive pleading is due from the party against whom summary judgment is sought; or (B) the filing of a Rule 12(b)(6) motion to dismiss or a summary judgment motion by the party against whom summary judgment is sought.

(2) Other parties. Any other party may move for summary judgment at any time after the action is commenced.

(3) Filing deadline. A summary judgment motion may not be filed later than the dispositive motion deadline set by the court or local rule, or absent such a deadline, 90 days before the date set for trial.

A defendant may move at any time after the action is commenced. A claimant must wait for the answer to come due — or for the defendant to file a Rule 12(b)(6) or summary judgment motion first, which opens the door early.

The back stop is the dispositive motion deadline, or 90 days before trial if the court has not set one.

The standard

Rule 56(a):

Motion for summary judgment or partial summary judgment. A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

Two practical points beyond the familiar standard. The motion must identify each claim or defense, or the part of one, on which judgment is sought — a motion aimed at "the complaint" does not comply. And the court "should state on the record the reasons" either way, which matters on appeal.

The separate statement of facts

This is where Arizona motions are won and lost. Rule 56(c)(3)(A):

Moving party's statement. The moving party must set forth, in a statement separate from the supporting memorandum, the specific material facts relied on in support of the motion. The separate statement must:

(i) state each fact concisely in separately numbered paragraphs; (ii) cite only the specific, admissible parts of the record where support for each fact may be found; (iii) state only facts that are cited in the moving party's memorandum; (iv) not make legal argument; and (v) in Tier 1 and 2 cases, not exceed 11 pages, exclusive of attachments, unless the court orders otherwise.

Five requirements, and three of them are commonly violated: the statement must contain only facts actually cited in the memorandum, must not make legal argument, and in Tier 1 and 2 cases must not exceed 11 pages.

Rule 56(c)(3)(B) governs the response:

Opposing party's statement. An opposing party must file a statement in the form prescribed by Rule 56(c)(3)(A). This statement must:

(i) identify the numbered paragraphs in the moving party's statement that are disputed, citing for each disputed material fact the specific, admissible parts of the record that establish the dispute; (ii) state concisely in separately numbered paragraphs those facts cited in the nonmoving party's memorandum that establish a genuine dispute or otherwise preclude summary judgment in favor of the moving party, citing as support for each such fact only specific, admissible parts of the record; and (iii) in Tier 1 and 2 cases, not exceed 17 pages, exclusive of attachments, unless the court orders otherwise.

The opponent's job is paragraph-by-paragraph. You must identify the numbered paragraphs that are disputed and cite the record for each dispute. Responding in narrative form, without engaging the numbering, is the single most common failure.

Rule 56(c)(3)(C) closes the loop:

No Reply Statement. The moving party may not file a Reply Statement of Fact. But if the nonmoving party raises new facts in their response, the moving party may attach admissible evidence to the reply memorandum to show that the new facts raised in response do not create a material issue of fact, as permitted by Rule 56(c)(2).

There is no reply statement of facts. New evidence on reply is permitted only to answer new facts raised in the response.

The joint statement

Rule 56(c)(3)(D) offers an alternative worth considering in a document-heavy case:

Joint Statement; Conference. In addition or as an alternative to submitting separate statements under Rule 56(c)(3)(A) and (B), the parties may file a joint statement in the form prescribed by this rule, setting forth those facts that are undisputed, including those established by the pleadings or previously admitted under Rule 36. The joint statement may provide that any stipulation of fact is not binding for any purpose other than the summary judgment motion. The joint statement does not count against the page limits in Rule 56(c)(3)(A)(v) or Rule 56(c)(3)(B)(iii). If a party requests a conference to determine if a joint statement of any length is possible, the parties must confer in good faith under Rule 7.1(h) no later than 7 calendar days after the request is made.

Three incentives are built in. The joint statement does not count against the page limits. A stipulation can be made non-binding outside the motion. And a requested conference must happen within 7 calendar days.

Affidavits and evidence

Rule 56(c)(5):

Affidavits. An affidavit used to support or oppose a motion 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 an affidavit refers to a document or part of a document, a properly authenticated copy must be attached to or served with the affidavit.

The last sentence catches people: referring to a document obliges you to attach a properly authenticated copy.

Rule 56(c)(6) permits supplementation "by other materials that would be admissible in evidence, including deposition excerpts, interrogatory responses, admissions, and additional affidavits."

Rule 56(c)(4) allows evidentiary objections in either the statement of facts or the memorandum, but "Any objection must be stated concisely and must identify the legal basis for the objection."

If you need discovery before you can respond

Arizona formalises this more than any other state. Rule 56(d)(1):

Requirements. If an opposing party cannot present evidence essential to justify its opposition, it may file a request for relief and expedited hearing. The request must be titled: "Request for Rule 56(d) Relief and for Expedited Hearing." The request must be accompanied by:

(A) a supporting affidavit establishing specific and adequate grounds for the request and addressing, if applicable, the following:

(i) the particular evidence beyond the party's control; (ii) the location of the evidence; (iii) what the party believes the evidence will reveal; (iv) the methods to be used to obtain it; (v) an estimate of the amount of time the additional discovery will require; and (B) a good faith consultation certificate complying with Rule 7.1 (h).

Note the exact required title — the rule prescribes the words. The affidavit must address five specific matters, and a good faith consultation certificate must accompany the request, which under Rule 7.1(h) means a conference in person or by telephone, not by letter or email.

This is the answer to a motion filed early against a party who has not yet had discovery. It is not enough to say more time is needed; the rule tells you exactly what to put in the affidavit.

Oral argument

Rule 56(c)(1):

Hearings. On timely request by any party, the court must set oral argument, unless it determines that the motion should be denied or the motion is uncontested. The court may set oral argument even if not requested.

A timely request compels argument, with two exceptions: the court may skip it if the motion will be denied anyway, or if it is uncontested.

Related Arizona deadlines

A Rule 12(b)(6) motion converts to summary judgment if outside material is presented and not excluded, so the two rules connect directly. See the Arizona motion to dismiss.

Arizona also front-loads disclosure rather than waiting for requests, which shapes what record exists when a motion is filed. See Arizona's mandatory disclosure.

How Arizona compares

A short checklist

1. Diarise 30 days from service of the motion, and 15 for any reply.
2. File a separate statement of facts. It is not optional, and it is not part of the memorandum.
3. Number every fact and cite the record specifically. Only admissible parts count.
4. Keep legal argument out of the statement, and keep it inside the page limit.
5. Respond paragraph by paragraph. Identify which numbered facts you dispute and cite the record for each.
6. Do not plan a reply statement of facts — there is no such filing.
7. Consider a joint statement. It does not count against the page limits.
8. Attach authenticated copies of any document an affidavit refers to.
9. If you need discovery, file the request with its exact title, the five-point affidavit, and a good faith consultation certificate.
10. Request oral argument in time if you want it — the court must then set it.

Where these rules live

• Ariz. R. Civ. P. 7.1 — Motions in General
• Ariz. R. Civ. P. 12 — Defenses and Objections
• Ariz. R. Civ. P. 56 — Summary judgment

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