Ohio summary judgment: leave is required once the case is set for trial

Ohio's summary-judgment rule leaves the calendar to the local court and Civ.R. 6(C). What it adds is a permission requirement that catches people who assume they can move at any time.

Leave is required once the case is set

Both subdivisions end with the same sentence.

Civ.R. 56(A) — for a party seeking affirmative relief: a party may move at any time after the expiration of the time permitted for a responsive motion or pleading by the adverse party, or after service of a motion for summary judgment by the adverse party. Then:

If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court.

Civ.R. 56(B) — for a defending party: may move at any time, with or without supporting affidavits — and the identical leave sentence follows.

So the trigger is not a number of days before trial, as in California, or a discovery cutoff, as federally. It is the act of the case being set for pretrial or trial. Once that happens, the motion needs permission regardless of how much time remains.

The briefing schedule comes from Civ.R. 6(C)

Civ.R. 56(C): "The motion together with all affidavits and other materials in support shall be served in accordance with Civ.R. 5. Responsive arguments, together with all affidavits and other materials in opposition, and a movant's reply arguments may be served as provided by Civ.R. 6(C)."

Ohio therefore has no summary-judgment-specific notice period. Civ.R. 6(C) supplies the general motion timing, and local rules routinely supplement it — which makes the county's local rules essential reading here.

The standard is stated twice, and the second time is stricter

Civ.R. 56(C) first states the familiar formulation: judgment is rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence and written stipulations of fact — timely filed in the action — show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.

Then two sentences that narrow it:

No evidence or stipulation may be considered except as stated in this rule.

A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

Two features worth separating.

A closed list of materials. "No evidence or stipulation may be considered except as stated in this rule" is a real limitation. Ohio courts have treated material outside the listed categories — unsworn documents, unauthenticated exhibits — as not properly before the court unless incorporated by affidavit.

"Reasonable minds can come to but one conclusion." Ohio states the standard in terms of the conclusion rather than the absence of a dispute, and requires the evidence to be construed most strongly in the non-movant's favor.

Affidavits and the response

Civ.R. 56(E) sets affidavit requirements — personal knowledge, facts admissible in evidence, affirmative showing that the affiant is competent to testify — and contains the response obligation: when a motion is made and supported as the rule provides, an adverse party may not rest upon the mere allegations or denials of the pleadings, but must set forth specific facts showing there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered.

Civ.R. 56(F) is the continuance provision: where it appears from the affidavits of a party opposing the motion that the party cannot for sufficient reasons stated present facts essential to justify the party's opposition, the court may refuse the application for judgment, order a continuance to permit affidavits to be obtained or discovery to be had, or make such other order as is just.

Civ.R. 56(G) allows expenses and reasonable attorney's fees against a party presenting affidavits in bad faith or solely for delay, and permits contempt.

Partial relief

Civ.R. 56(D): where judgment is not rendered on the whole case and a trial is necessary, the court at the hearing, by examining the pleadings and evidence and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It then makes an order specifying the uncontroverted facts, and those facts are deemed established at trial.

That is close to Georgia's § 9-11-56(d), and it likewise contemplates the judge actively narrowing the case at the hearing.

How Ohio compares

A short checklist

1. Check the docket for a trial or pretrial setting before filing — after that, you need leave.
2. Read Civ.R. 6(C) and the county's local rules for the response and reply dates; Civ.R. 56 doesn't supply them.
3. Get your evidence into a listed category. Civ.R. 56(C) excludes anything else, so attach documents to an affidavit that authenticates them.
4. Respond with specific facts — Civ.R. 56(E) forecloses resting on the pleadings.
5. If you need discovery to oppose, Civ.R. 56(F) requires affidavits stating sufficient reasons.
6. If the motion is denied in part, expect a Civ.R. 56(D) order fixing what is no longer in controversy.

Where these rules live

• Ohio Civ.R. 6 — Time
• Ohio Civ.R. 12 — Defenses and Objections
• Ohio Civ.R. 55 — Default
• Ohio Civ.R. 56 — Summary Judgment
• Ohio Civ.R. 59 — New Trials
• Ohio Civ.R. 60 — Relief from Judgment or Order

Each court of common pleas publishes its own local rules governing motion practice. This page explains what the rules say. It isn't legal advice.