Vermont summary judgment: 30 days to oppose, and you must reproduce every paragraph you answer

Vermont rewrote Rule 56 on the modern federal model, so the standard and the vocabulary will look familiar. Two things are not federal, and both are formatting requirements that a busy practice tends to discover the hard way: every numbered paragraph you answer must be reproduced before your answer, and on request you have to give the other side an editable file.

The window is measured from the close of discovery

Rule 56(b) sets all three clocks in one place:

A party may file a motion for summary judgment at any time until 30 days after the close of all discovery, unless a different time is set by stipulation or court order. An adverse party may file its opposition to the motion within 30 days after the service of the motion. The moving party may file a reply memorandum within 14 days after service of the opposition. The court may also allow a surreply memorandum.

Three numbers worth holding onto:

Note what the outer limit is keyed to. It is not a number of days before trial, and it is not the discovery cutoff itself — it is 30 days after the close of all discovery. A stipulation or a scheduling order can move it, and often does.

The standard in Rule 56(a) is the familiar one: the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Vermont adds a direction to the judge — "The court should state on the record the reasons for granting or denying the motion."

The statement of undisputed material facts

Rule 56(c)(1) requires the moving party to file a separate statement, and it spells out what can support a fact:

A moving party asserting that a fact cannot genuinely be disputed must support the assertion by filing a separate and concise statement of undisputed material facts consisting of numbered paragraphs with specific citations to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other admissible materials.

Then comes the sentence that has no federal counterpart:

Upon request, the party must provide each adverse party with a copy of the statement in an editable format that allows entry of responses to be incorporated into a single document.

That is a working requirement, not a courtesy. The point is that the response is meant to be built inside the movant's own document, which is why the next subdivision requires reproduction.

Reproduce the paragraph, then answer it

Rule 56(c)(2) governs the opposition, and it is exacting about form:

A nonmoving party responding to a statement of undisputed material facts and asserting that a fact is genuinely disputed, that the materials cited do not establish the absence of a genuine dispute, or that the moving party cannot produce admissible evidence to support the fact, must file a paragraph-by- paragraph response, with specific citations to particular parts of materials in the record that the responding party asserts demonstrate a dispute, including depositions, documents, electronically stored information, affidavits, declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other admissible materials.

And then, plainly:

The responding party must reproduce each numbered paragraph of the moving party's statement before including the response thereto.

A response that answers "Paragraphs 4, 7 and 12 are disputed" does not comply. Additional facts go in their own section — the party "may file a separate and concise statement of additional material facts in numbered paragraphs, with specific citations to particular parts of admissible materials in the record" — and the editable-copy obligation applies to those too.

Rule 56(c)(3) puts the same duty on the movant's reply. A moving party may reply to disputed facts and to the nonmovant's additional facts, and in both cases "[e]ach numbered paragraph to which there is a reply must be reproduced before the reply thereto." A surreply, if allowed, comes "in the same format."

What the court will and will not read

Rule 56(c)(5) is short and it differs from the stricter approach some states take:

The court need consider only the materials cited in the required statements of fact, but it may consider other materials in the record.

Contrast Maine, where Rule 56(h)(4) says the court "shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts." Vermont's judge may look further. That is not a reason to cite loosely — the burden is still yours — but it means an omission is not automatically fatal in Vermont the way it can be elsewhere.

Rule 56(c)(4) preserves the admissibility objection: "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Affidavits and declarations must, under Rule 56(c)(6), "be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated."

What happens if you get the form wrong

Rule 56(e) is the consequence provision, and it is a menu rather than an automatic loss. If a party fails to properly support an assertion of fact, or fails to properly address another party's assertion, the court may

(1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order.

Option (1) exists, and Vermont judges use it. But options (2) and (3) sit right beside it, so a defective response is a risk you are choosing to run rather than a formality the court will fix.

When you are not ready to oppose

Rule 56(d) is the continuance route. If a nonmovant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition," the court may

(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations, or to take discovery; or (3) issue any other appropriate order.

"Specified reasons" is doing the work. An affidavit that says discovery is incomplete, without saying what you expect to find and why you cannot get it yet, is the usual reason these fail.

The court can grant judgment nobody asked for

Rule 56(f) lets the court act beyond the motion, on notice:

After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

So moving is not risk-free: a weak motion can end in judgment against the movant. Where the court grants less than everything asked, Rule 56(g) lets it enter an order "stating any material fact—including an item of damages or other relief—that is not genuinely in dispute and treating the fact as established in the case."

Bad-faith affidavits

Rule 56(h) supplies the sanction. If the court is satisfied that an affidavit or declaration "is 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 the reasonable expenses, including attorney's fees, it incurred as a result." Beyond fees, "[a]n offending party or attorney may also be held in contempt or subjected to other appropriate sanctions."

Related

• Rule 56 — Summary judgment
• Responding to a Vermont complaint
• Vermont motion to dismiss
• Setting aside a Vermont default judgment