Delaware summary judgment: cross motions are treated as a stipulation to decide the case

Filing your own summary judgment motion against one already on file is, in most places, a routine defensive move. In Delaware it can decide the case.

Rule 56(h) provides that where both sides have moved and neither has argued that a material fact issue exists, the Court "shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motions."

You have not asked the Court to find no issue of fact. You have agreed to have the case decided on the papers.

The cross-motion rule

Del. Super. Ct. Civ. R. 56(h):

Cross motions. Where the parties have filed cross motions for summary judgment and have not presented argument to the Court that there is an issue of fact material to the disposition of either motion, the Court shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motions.

Three consequences follow, and each one is a drafting decision.

The trial disappears. A stipulation for decision on the merits is not a ruling that there is nothing to try. It is a decision of the case.

The record closes at the motion papers. Whatever you did not put in is not before the Court. There is no later opportunity to supplement.

Preserving a fact issue takes an express argument. The escape is to "present argument to the Court that there is an issue of fact material to the disposition of either motion" — either motion, so pointing to a dispute that defeats only your opponent's motion is enough. But it has to be argued, not merely implied by denying their statement of facts.

A cross motion filed without that argument, purely to mirror the other side, therefore does something quite different from what was intended.

When each side may move

Rule 56(a) and (b) set very different windows.

(a) For claimant. A party seeking to recover upon a claim, counterclaim, or crossclaim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment and at any time prior to the marking of the case for trial, move, with or without supporting affidavits, for a summary judgment in the party's favor upon all or any part thereof, subject to provisions of Rule 56(bb).

(b) For defending party. A party against whom a claim, counterclaim or crossclaim 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, subject to the provisions of Rule 56(bb).

The claimant's outer limit is the one to diary, and it is not a day count. It is an event — "prior to the marking of the case for trial". Once the case is marked, the window has closed.

Rule 56(bb) supplies the way back in:

The limitation of time for the filing of motions for summary judgments in accordance with Rule 56(a) and Rule 56(b) shall not prohibit the filing of a motion for summary judgment by any party when, as a result of a pretrial conference, in the opinion of the Court, the filing of such motion is desirable. This Rule shall not affect in any way the provisions of Rule 12(b) and Rule 12(c) with respect to motions for summary judgment.

A pretrial conference can reopen it, but only where the Court forms the opinion that a motion is desirable. That is not something a party can create unilaterally.

The second sentence preserves the conversion route — a Rule 12(b)(6) or Rule 12(c) motion that draws in outside material becomes a Rule 56 motion regardless of these limits. See the Delaware motion to dismiss.

Ten days, and affidavits up to the day before

Rule 56(c):

Motion and proceedings thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. 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.

Delaware sets no separate deadline for a written response — only for affidavits, and those may arrive the day before the hearing. A movant should not treat silence at day five as the end of the matter.

The subdivision also permits an interlocutory summary judgment "on the issue of liability alone although there is a genuine issue as to the amount of damages."

Responding: allegations are not enough

Rule 56(e) sets the form of affidavits and the consequence of a thin response:

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 the adverse party.

Affidavits must be "made on personal knowledge", set out facts "as would be admissible in evidence", and show affirmatively that the affiant is competent to testify. Sworn or certified copies of anything referred to must be attached or served with the affidavit.

Two qualifiers protect a responding party. The consequence applies only where the motion is "made and supported as provided in this Rule", and judgment enters only "if appropriate" — silence is not an automatic loss where the movant has not carried its own burden.

Rule 56(f) is the route where you cannot yet answer: on a showing by affidavit that the party "cannot for reasons stated present by affidavit facts essential to justify the party's opposition", the Court may refuse the application, order a continuance for affidavits, depositions or discovery, "or make such other order as is just."

Affidavits filed in bad faith

Rule 56(g) is unusually firm:

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

The expense award is mandatory — the Court "shall forthwith order" it — and it is available "at any time", not only on the motion. Contempt sits on top of it, and reaches the attorney as well as the party.

Partial adjudication

Rule 56(d) handles what is left when the motion does not dispose of everything. The Court, "by examining the pleadings and the evidence before it and by interrogating counsel", shall if practicable ascertain what facts exist without substantial controversy and make an order specifying them.

The effect is durable: "Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly."

So a partly successful motion still narrows the trial, and a party that loses ground at this stage does not get it back later.

How Delaware compares

A short checklist

1. Before filing a cross motion, decide whether you want the case decided on these papers. Rule 56(h) treats it that way by default.
2. If a fact issue exists, argue it expressly — on either motion — or the stipulation applies.
3. Put everything in the motion papers. The record closes there.
4. If you are the claimant, move before the case is marked for trial.
5. Watch for opposing affidavits the day before the hearing. There is no earlier cutoff.
6. Respond with specific facts, not denials — but check first whether the motion was properly supported.
7. Use Rule 56(f) if discovery is incomplete, by affidavit stating why.

Where these rules live

• Del. Super. Ct. Civ. R. 56 — Summary judgment
• Del. Super. Ct. Civ. R. 12 — Defenses and objections
• Del. Super. Ct. Civ. R. 26 — General provisions governing discovery

This page explains what the rules say. It isn't legal advice.