South Carolina summary judgment: ten days out, and two days to oppose

South Carolina counts backwards from the hearing date, not forwards from service, and its response window is one of the shortest in the country.

The motion goes out ten days before the hearing. Opposing affidavits are due two days before it.

There is no statement-of-facts requirement, no page limit and no numbered-paragraph regime — which makes South Carolina's rule simpler than most, and puts all the pressure on the calendar.

The two deadlines

S.C. R. Civ. P. 56(c):

Motions and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party may serve opposing affidavits not later than two days before the hearing. 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Two days is very little. In practice the response has to be built as the motion is read — and if the evidence you need is not already in hand, Rule 56(f) below is the provision to reach for rather than the deadline itself.

The court decides on the full record: "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." And liability may be decided alone, interlocutorily, where damages remain in dispute.

When each side may move

Rule 56(a) — the claimant:

For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

Rule 56(b) — the defending party:

For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

Both sections permit a motion "with or without supporting affidavits" — affidavits are not a precondition to moving.

You cannot answer on the pleadings

Rule 56(e):

Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. 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 his pleading, but his 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 he does not so respond, summary judgment, if appropriate, shall be entered against him.

Four requirements for any affidavit:

That last one is the most commonly missed. Referring to a contract, a statement of account or a business record obliges you to put a sworn or certified copy in front of the court.

And the defense requirement: a denial in the answer is not a response. You "must set forth specific facts showing that there is a genuine issue for trial", and if you do not, "summary judgment, if appropriate, shall be entered against him."

Note the qualifier "if appropriate" — failing to respond does not hand the movant an automatic win; the court still has to be satisfied on the record.

If two days is not enough

Rule 56(f):

When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

The relief is affidavit-triggered: it must "appear from the affidavits of a party opposing the motion" that the facts cannot be presented, with the reasons stated. A request made only in a brief or at the hearing does not engage the rule.

The court has three options, and the first is the strongest: it "may refuse the application for judgment" outright, not merely postpone it.

Because a defendant may move at any time in South Carolina — including before any discovery — this is the right answer to an early motion, and it should be filed rather than argued.

Bad faith affidavits

Rule 56(g):

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

The fee award is mandatory once the court is satisfied — "shall forthwith order" — and contempt is available against the party or the attorney.

A denied motion still narrows the trial

Rule 56(d):

Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It may thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

Facts fixed at the hearing "shall be deemed established" at trial. A motion that fails outright can still be worth filing where the aim is to narrow what has to be proved.

Where this connects

South Carolina's Rule 12 practice and its answer requirements are covered in answering a South Carolina summons and responding to a South Carolina complaint.

If judgment has already been entered against you, note that South Carolina's Rule 60(b) has no catch-all ground — see setting aside a South Carolina default judgment.

How South Carolina compares

A short checklist

1. Find the hearing date. Both deadlines count backwards from it.
2. Start the response the day the motion arrives. Two days is the whole window.
3. Check that each affidavit shows personal knowledge, admissible facts and competence to testify.
4. Attach sworn or certified copies of every paper an affidavit refers to.
5. Do not rest on the pleadings. Set out specific facts showing a genuine issue for trial.
6. If the record is not there yet, file a Rule 56(f) affidavit stating the reasons — the court can refuse the motion outright.
7. Consider moving on liability alone where damages are genuinely disputed.
8. Even if you lose, use Rule 56(d) to fix what is not genuinely in controversy for trial.

Where these rules live

• S.C. R. Civ. P. 12 — Defenses and Objections
• S.C. R. Civ. P. 56 — Summary judgment
• S.C. R. Civ. P. 6 — Time

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