Louisiana summary judgment: sixty-five days before trial, and a closed list of what you may file

Louisiana runs summary judgment on statutory deadlines rather than local practice, and article 966 is unusually specific about all of them. It also does two things no other state's rule does.

It sets out an exhaustive list of the documents that may be filed — "the only documents" — so an exhibit outside the list cannot be used at all. And it codifies the burden-shifting rule that elsewhere lives in case law.

Every deadline, in one place

La. C.C.P. art. 966(B):

Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:

(1) Except for any document provided for under Subsubparagraph (A)(4)(b) of this Article, a motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313(A)(4) not less than sixty-five days prior to the trial. (2) Except for any document provided for under Subsubparagraph (A)(4)(b) of this Article, any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313(A)(4) not less than fifteen days prior to the hearing on the motion. (3) Any reply memorandum shall be filed and served in accordance with Article 1313(A)(4) not less than five days inclusive of legal holidays notwithstanding Article 5059(B)(3) prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.

And art. 966(C) fixes the hearing and the ruling:

(a) A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date. (b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing.

(3) The court shall render a judgment on the motion not less than twenty days prior to the trial.

Two traps. No additional documents may be filed with the reply — the reply is argument only. And the five days for the reply is inclusive of legal holidays, expressly overriding the general computation rule, so it does not stretch across a long weekend the way other deadlines do.

Art. 966(B)(4) gives one small allowance: if a deadline "falls on a legal holiday, the motion, opposition, or reply is timely if it is filed and served no later than the next day that is not a legal holiday."

Late documents are simply not considered

Art. 966(B)(5):

The court shall not reconsider or revise the granting of a motion for partial summary judgment on motion of a party who failed to meet the deadlines imposed by this Paragraph, nor shall the court consider any documents filed after those deadlines.

That is an absolute exclusion — "nor shall the court consider any documents filed after those deadlines." There is no discretion to accept a late exhibit, and no route back for a party who missed the window and lost a partial summary judgment.

Extension requires both the court and the agreement of all the parties.

The closed list of documents

Art. 966(A)(4)(a):

The only documents that may be filed or referenced in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, certified copies of public documents or public records, certified copies of insurance policies, authentic acts, private acts duly acknowledged, promissory notes and assignments thereof, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.

"The only documents." Read the list against your exhibits before filing:

Notice how much of the list turns on certification or authentication. An uncertified medical record, an uncertified insurance policy, or a plain unacknowledged private document is not on the list. Neither is an unsworn expert report, a photograph, or correspondence.

Art. 966(A)(4)(b) lets you use something already in the record without refiling it:

Any document listed in Subsubparagraph (a) of this Subparagraph previously filed into the record of the cause may be specifically referenced and considered in support of or in opposition to a motion for summary judgment by listing with the motion or opposition the document by title and date of filing. The party shall concurrently with the filing of the motion or opposition furnish to the court and the opposing party a copy of the entire document with the pertinent part designated and the filing information.

Three conditions: list it by title and date of filing, furnish a copy of the entire document, and designate the pertinent part.

The burden, in the statute

Art. 966(D)(1):

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Most states leave this to case law. Louisiana writes it into the article:

• The burden starts with the mover.
• A mover who will not bear the burden at trial need not negate every element — only point out the absence of factual support for one or more essential elements.
• The burden then shifts to the adverse party to produce factual support establishing a genuine issue.

For a defendant, that is the whole strategy: identify the element the plaintiff cannot support, and say so.

Objections must be made in the papers

Art. 966(D)(2):

The court shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment but shall not consider any document that is excluded pursuant to a timely filed objection. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing whether the court sustains or overrules the objections raised.

Objections go in the opposition or the reply, not in a separate filing and not at the hearing. And the court must rule on each one, on the record, before ruling on the motion.

Art. 966(D)(3) handles experts:

If a timely objection is made to an expert's qualifications or methodologies in support of or in opposition to a motion for summary judgment, any motion in accordance with Article 1425(F) to determine whether the expert is qualified or the expert's methodologies are reliable shall be filed, heard, and decided prior to the hearing on the motion for summary judgment.

The expert question gets decided first, in a separate proceeding, before the summary judgment hearing.

The consequence that reaches trial

Art. 966(G) has no counterpart anywhere else, and it matters enormously in a comparative fault state:

When the court renders judgment in accordance with the provisions of this Article that a party or nonparty is not negligent, is not at fault, or did not cause in whole or in part the injury or harm alleged, that party or nonparty shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or nonparty, except that evidence may be admitted to establish the fault of a principal when the party or nonparty acted pursuant to a mandate or procuration. During the course of the trial, no party or person shall refer directly or indirectly to any such fault, nor shall that party or nonparty's fault be submitted to the jury or included on the jury verdict form except where evidence is admitted of the acts of the party or nonparty for purposes of establishing the fault of the party or nonparty's principal.

A party dismissed on summary judgment is removed from the fault allocation entirely. Their fault cannot be argued, cannot be referred to, and cannot go on the verdict form. Remaining defendants therefore have a direct stake in opposing a co-defendant's motion — an empty chair they might have blamed disappears.

The article adds that this "does not apply if the trial or appellate court's judgment rendered in accordance with this Article is reversed", and that a reversal "is applicable to all parties."

Scope, and the appellate limit

Art. 966(E) permits a judgment "dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties."

Art. 966(F) confines it: "A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." No judgment on grounds nobody raised — the opposite of the federal approach.

Art. 966(H) protects the respondent on appeal:

On review, an appellate court shall not reverse a trial court's denial of a motion for summary judgment and grant a summary judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument.

When each side may move

Art. 966(A)(1): "A party may move for a summary judgment for all or part of the relief for which he has prayed. A plaintiff's motion may be filed at any time after the answer has been filed. A defendant's motion may be filed at any time."

And art. 966(A)(3) adds the qualifier that governs early motions: judgment shall be granted "After an opportunity for adequate discovery."

Article 966(A)(2) states the policy directly: the procedure "is favored and shall be construed to accomplish these ends."

Where this connects

Louisiana raises threshold objections by exception rather than by motion to dismiss, and the deadlines differ sharply by type. See Louisiana exceptions and answering a Louisiana petition.

How Louisiana compares

A short checklist

1. Work backwards from the trial date. Sixty-five days is the first and hardest deadline.
2. Check every exhibit against the closed list in art. 966(A)(4)(a) before filing. Certification and authentication do most of the work there.
3. If you are relying on something already in the record, list it by title and date, furnish the whole document, and designate the pertinent part.
4. File nothing late. The court is forbidden to consider it.
5. Put your objections in the opposition or reply. There is no other place for them.
6. If an expert is challenged, expect that to be decided first under art. 1425(F).
7. Remember the reply carries no documents.
8. If you are a co-defendant, read art. 966(G) before staying silent on another defendant's motion — a dismissal removes them from the fault allocation for good.
9. As mover without the trial burden, point out the missing element rather than trying to disprove the whole claim.

Where these rules live

• La. C.C.P. art. 966 — Motion For Summary Judgment; Procedure
• La. C.C.P. art. 967 — Same; Affidavits
• La. C.C.P. art. 927 — Objections Raised By Peremptory Exception
• La. C.C.P. art. 1001 — Delay For Answering

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