Federal summary-judgment timing: what Rule 56 actually sets, and what your district sets

Rule 56 is unusual among the timing rules: it sets one deadline and then hands the calendar to someone else.

The one national deadline

Rule 56(b):

Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.

Two things follow. The outer limit is 30 days after the close of all discovery, not 30 days before trial and not a fixed number of days after the case is filed. And the whole provision is a default — "unless a different time is set by local rule or the court orders otherwise."

In practice, a scheduling order under Rule 16(b) usually supplies a dispositive-motion deadline that arrives earlier than Rule 56(b)'s outer limit. Where it does, that order controls.

There is no floor in Rule 56(b). A motion may be filed "at any time" up to the deadline, including before discovery is complete — which is why Rule 56(d) exists.

What Rule 56 does not set

The federal rule contains no response deadline and no reply deadline. Those come from the district's local rules or the assigned judge's standing order, and they vary. Some districts set 21 days to respond; others set 14 or 28. Some require a pre-motion conference before a summary- judgment motion may be filed at all.

Rule 56 also doesn't require a separate statement of undisputed material facts. Many districts do, by local rule, and in those courts the format requirements are not optional. Rule 56(c)(1) assumes some structure — it requires a party asserting that a fact cannot be or is genuinely disputed to support the assertion by citing "particular parts of materials in the record" — but the mechanism for doing so is local.

The reliable move is to read three documents together: Rule 56, the district's local civil rules, and the assigned judge's individual practices.

Supporting and disputing a fact

Rule 56(a) states the standard: the court shall grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record its reasons for granting or denying.

Rule 56(c)(1) gives two routes for supporting a factual position — citing particular parts of materials in the record (depositions, documents, electronically stored information, affidavits or declarations, stipulations including those made for the motion only, admissions, interrogatory answers, or other materials), or showing that the materials cited don't establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Rule 56(c)(2) allows an objection that cited material "cannot be presented in a form that would be admissible in evidence" — the test is whether it could be presented admissibly, not whether the current form is admissible.

Rule 56(c)(3): the court need consider only the cited materials, but it may consider other materials in the record. That "need consider only" is why citation discipline matters — a fact buried in an uncited exhibit may simply not be seen.

Rule 56(c)(4): an affidavit or declaration must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

When you need discovery to respond — Rule 56(d)

Rule 56(d) is the provision for a nonmovant facing a motion filed before the record is ready:

• If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: defer considering the motion or deny it; allow time to obtain affidavits or declarations or to take discovery; or issue any other appropriate order.

The requirements are specific. It takes an affidavit or declaration, not an argument in a brief, and it must give specified reasons — what facts are needed, why they're essential, and why they can't be presented now.

What happens if a fact isn't properly addressed

Rule 56(e) lists four options when a party fails to properly support an assertion of fact, or fails to properly address another party's assertion as Rule 56(c) requires. The court may give an opportunity to properly support or address the fact; consider the fact undisputed for purposes of the motion; grant summary judgment if the motion and supporting materials show the movant is entitled to it; or issue any other appropriate order.

Note the second option's limit — undisputed for purposes of the motion — and the third's condition. Even with facts treated as undisputed, the court still has to find the movant entitled to judgment. Rule 56 doesn't authorize summary judgment as a sanction for a missing response.

Three powers the court has on its own

Judgment for the other side. Rule 56(f)(1): after giving notice and a reasonable time to respond, the court may grant summary judgment for a nonmovant. Filing the motion carries the risk of losing on it.

Grounds nobody raised. Rule 56(f)(2): the court may grant the motion on grounds not raised by a party, again after notice and a reasonable time to respond.

On its own initiative. Rule 56(f)(3): the court may consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

Partial relief — Rule 56(g)

If the court doesn't grant all the relief requested, it may enter an order stating any material fact — including an item of damages or other relief — that isn't genuinely in dispute, and treat that fact as established in the case.

A denied summary-judgment motion can still narrow the trial.

Bad-faith affidavits — Rule 56(h)

If the court is satisfied that an affidavit or declaration was submitted in bad faith or solely for delay, it may — after notice and a reasonable time to respond — order the submitting party to pay the other party's reasonable expenses, including attorney's fees, incurred as a result. The offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

A related timing trap in Rule 12

Rule 12(d) converts a motion. If, on a Rule 12(b)(6) or Rule 12(c) motion, matters outside the pleadings are presented to and not excluded by the court, "the motion must be treated as one for summary judgment under Rule 56," and all parties "must be given a reasonable opportunity to present all the material that is pertinent to the motion."

That conversion can put a party into summary-judgment posture without a Rule 56 motion ever having been filed — which is why the notice-and-opportunity requirement is written into the rule.

Where these rules live

• Rule 6 — Computing and Extending Time
• Rule 12 — Defenses and Objections
• Rule 16 — Pretrial Conferences; Scheduling; Management
• Rule 26 — Duty to Disclose; General Provisions Governing Discovery
• Rule 56 — Summary Judgment

Every district publishes its local civil rules, and most judges publish individual practices. Those set the response and reply dates Rule 56 leaves open. This page explains what the rules say. It isn't legal advice.