West Virginia summary judgment: 30 days after discovery closes, and the procedures hide inside (c)
West Virginia procedure · Last verified August 17, 2026
West Virginia rewrote Rule 56 on the modern federal model but kept the older "case not fully adjudicated" paragraph, and it put both in the same subdivision. The result is that the provisions telling you how to support a fact — the ones lettered (c)(1) through (c)(4) in the federal rule — sit underneath a paragraph about partial adjudication. If you read (c) and stop at the first sentence, you will miss them.
The filing window
Rule 56(b) supplies the one date in the rule:
Unless a different time is set by court order, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
Same figure as Vermont, and keyed the same way — to the close of discovery rather than to the trial date. A scheduling order displaces it, and usually does.
What Rule 56 does not contain is a response deadline or a reply deadline. Neither appears anywhere in the rule. So the briefing schedule in a West Virginia case comes from the court's scheduling order or the circuit court's own practice, not from Rule 56. Confirm it rather than importing a number from another state — Montana gives 21 days to respond, Vermont 30, and West Virginia gives none on the face of the rule.
The standard
Rule 56(a) states the test:
The court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
West Virginia keeps "no genuine issue as to any material fact" where the current federal rule says "no genuine dispute." The older phrase runs through the rest of the rule too, so match it in your briefing.
A note on the opening words of Rule 56(a). As published, the subdivision begins "A party for summary judgment, identifying each claim or defense" — the words that would ordinarily follow "A party" appear to be missing, and the federal provision this tracks reads "may move for summary judgment." Nothing turns on it for practice: the operative sentence quoted above states the test, and the rest of the rule assumes throughout that a party may move. It is noted here only so that a reader who spots the gap knows it is in the published text rather than a transcription slip.
Subdivision (c) does two jobs
Rule 56(c) opens with the partial-adjudication paragraph carried over from the older rule. If judgment is not rendered on the whole case, the court
shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall 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.
Those specified facts bind at trial: "Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly."
Then, under the same letter, come the modern procedures.
Supporting a factual position — Rule 56(c)(1). A party asserting that a material fact cannot be disputed, or is genuinely in issue, shall support the assertion by
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine issue, or that an adverse party cannot produce admissible evidence to support the fact.
Route (B) is the underused one: you can defeat an assertion by showing the opponent's own materials do not carry it, without putting in contrary evidence.
Objection — Rule 56(c)(2). "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."
How far the court will look — Rule 56(c)(3). "The court need consider only the cited materials, but it may consider other materials in the record."
Affidavits — Rule 56(c)(4). One "shall 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."
West Virginia requires no separate statement of undisputed facts. There is no analogue to Wyoming's Rule 56.1; the citations live in the brief and the affidavits.
Failing to address a fact
Rule 56(e) supplies the consequence, and it is a menu:
If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), 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.
The court may give you a second chance under (1). It may equally go straight to (2) and (3).
When you cannot answer yet
Rule 56(d):
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.
Because Rule 56(b) permits a motion at any time up to 30 days after discovery closes, a motion filed early in the case is entirely proper — and Rule 56(d) is the answer to it.
Judgment nobody moved for
Rule 56(f) lets the court act beyond the motion after 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.
And Rule 56(g) handles the partial win: where the court "does not grant all the relief requested by the motion, it may enter an order stating any material fact—including an item of damages or other relief—that is not genuinely in issue and treating the fact as established in the case."
Bad-faith affidavits
Rule 56(h) is discretionary and procedurally protected. If satisfied that an affidavit or declaration "is submitted in bad faith or solely for delay," the court — "after notice and a reasonable time to respond" — "may order the submitting party to pay the other party the reasonable expenses, including attorney fees, it incurred as a result," and "[a]n offending party or attorney may also be held in contempt or subjected to other appropriate sanctions."