Rule 56.Summary judgment

Reporter’s Notes—2025 Amendment: Rule 56 is amended to refer to a “declaration,” an unsworn document signed subject to the penalties of perjury under these rules or applicable law. See 4 V.S.A. § 27b and V.R.C.P 43(h). This amendment is consistent with Federal Rule of Civil Procedure 56, on which it is based. See V.R.C.P. 56, Reporter’s Notes—2012 Amendment (Rule 56, as originally adopted and amended, was replaced in 2012 by rule based almost entirely on December 2010 amendments of Federal Rule 56 but omitted references to declarations). Under Rule 56(b)(6) as now amended, a declaration used to support or oppose a summary judgment motion must be based on personal knowledge.

Reporter’s Notes—2023 Amendment: Rule 56(b) is amended to allow a party to file for summary judgment “at any time until” 30 days after the close of all discovery. This restores language consistent with the federal rule and corrects an error in the 2022 amendment that required the party to file “within” the 30-day period. The amendment clarifies that a party may file a motion for summary judgment before as well as after the close of discovery.

Reporter’s Notes—2022 Amendment: Rule 56 is amended to clarify and spell out in detail the content of motions for summary judgment, oppositions to summary judgment motions, and motions in reply to opposition. The purpose is to separate out statements of often immaterial or nonresponsive additional facts and to discourage the not-uncommon practice of obfuscating the terms of a reply by adding a host of such additional facts. No substantive change is intended. Rule 56(b) is amended to provide in one place the filing times for the three principal procedural steps for which amended Rule 56 provides: The summary judgment motion, the opposition to the motion, and the moving party’s reply to the opposition. That provision, formerly Rule 56(c)(5), has been incorporated here for clarity. In addition, for completeness, a provision permitting a surreply in the court’s discretion has been adopted from V.R.C.P. 7(b)(4) as amended in June 2021. That rule applies generally to all motions including those for summary judgment. See Reporter’s Notes to June 2021 amendment of Rule7(b). Rules 56(c)(2) and (c)(3) have been added to make explicit the requirements that responses to the movant’s statement of undisputed facts are to be provided in numbered paragraphs corresponding to those of the movant’s statement, and that statements of additional facts—disputed or undisputed—are to be submitted in a separate statement, with numbered paragraphs. These provisions respond to prior concerns that nonmoving parties were causing confusion by incorporating additional material in their oppositions to the movant’s statement. The detail of the provisions requires paragraph-by-paragraph responses to the movant’s statement that must be preceded by paragraph-by-paragraph text of that statement. To facilitate preparation of responses, paragraphs (1) and (2), and paragraph (3) by implication, require a party, on request, to provide an opposing party with a copy of its statement in editable format to allow statements and responses to be incorporated in a single document.

Reporter’s Notes—2021 Amendment: V.R.C.P. 56(c)(5) is added to make clear that a reply to a memorandum in opposition to a motion for summary judgment, as provided in the simultaneous amendment to V.R.C.P. 7(b)(4), is available. See Reporter’s Notes to that amendment.

Reporter’s Notes—2012 Amendment: Rule 56, as originally adopted and amended, is replaced by a rule based almost entirely on the December 2010 amendments of Federal Rule 56. The new Vermont rule clarifies the substance and process for summary judgment and establishes uniformity with the current federal rule. The rule does not make significant changes in the standard for granting summary judgment or other aspects of present Vermont practice, except as noted below. Rule 56(a), taken from the federal rule, combines in briefer form the provisions of former V.R.C.P. 56(a) and (b) for a motion by any claimant or defendant. It incorporates the standard for granting summary judgment from former V.R.C.P. 56(c), substituting “dispute” for “issue” of material fact, as better reflecting “the focus of a summary judgment determination” (federal Advisory Committee’s Note) and leaving the basis for the decision to new subdivision (c). The provision for partial summary judgment is consistent with former V.R.C.P. 56(a), (e). Provisions of former subdivision (a) concerning the time of filing the motion and the need for supporting affidavits are addressed in new subdivisions (b) and (c). New subdivision (a) encourages the court to give reasons for its decision on the record. Rule 56(b) adopts the approach of the federal rule, requiring the motion to be filed within 30 days after the close of discovery in the absence of court order or a stipulation. The Vermont rule also specifies that opposition to the motion must be filed within 30 days after service of the motion. This is consistent with current Vermont practice, which uses stipulated scheduling orders to regulate timing of summary judgment motions, but changes former V.R.C.P. 56(a), (b), which permit a defending party to file at any time, and limits a claimant to any time “after the expiration of 20 days from the commencement of the action.” Rule 56(c) adopts the provisions of the federal rule, supplemented by the requirement of former V.R.C.P. 56(c)(2) that the parties file separate statements of facts that “shall consist of numbered paragraphs and shall contain specific citations to the record.” The rule is also consistent with the requirement of former V.R.C.P. 56(e) that an opposition “must set forth specific facts showing that there is a genuine issue for trial.” Rule 56(c)(1)(A), specifying the scope of the citable record, reflects modern practice in which motions for summary judgment are most often based on the discovery record, rather than affidavits alone. Cf. Johnson v. Harwood, 2008 VT 4, ¶ 10, 183 Vt. 157, 945 A.2d 875 (“Rule 56’s purposes are served equally well by sworn statements other than affidavits, provided that those statements meet the rule’s other requirements.”). Reference to the “record, including . . . . documents, electronically stored information, . . . . stipulations, . . . . or other materials” is broader than, but generally consistent with, former V.R.C.P. 56(c)(3), which describes the material to be considered in applying the “genuine issue” standard and with the provisions of former V.R.C.P. 56(e) for supplementation of affidavits, though it does not expressly state that “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Rules 56(c)(1)(B) and (c)(2) clarify that all asserted facts must be based on admissible evidence, a point only partially suggested by former V.R.C.P. 56(e) requiring that affidavits be made on personal knowledge and set forth such facts as would be admissible in evidence. This federal language is new to Vermont. The requirement of admissible evidence is consistent with the current practice, though not explicit in the current rule. E.g., Ross v. Times Mirror, Inc., 164 Vt. 13, 22-23, 665 A.2d 580, 585 (1995) (noting that hearsay statements in a deposition that are not supported by specific facts admissible in evidence are insufficient to defeat summary judgment motion). These new provisions together clarify that both the sufficiency of the evidence and the admissibility of the evidence may be put in issue — even if facts are undisputed. This follows current practice that a statement of undisputed facts is unnecessary where the moving party does not have burden of persuasion and is claiming there is no admissible evidence to support the nonmovant’s case. State v. Great Northeast Prods., Inc., 2008 VT 13, ¶ 8, 183 Vt. 579, 945 A.2d 897 (mem.). The statement in new Rule 56(c)(3) that the court need consider only the materials cited by a party is consistent with former V.R.C.P. 56(c)(2). See, e.g., Clayton v. Unsworth, 2010 VT 84, ¶ 28, 188 Vt. 432, 8 A.3d 1066 (rejecting argument that party had expert testimony “available,” because none of it was before the trial court in the statement of material facts); see Reporter’s Notes, V.R.C.P. 56 (noting that Rule 56 was specifically amended to make clear that facts that are omitted from such statements are not considered by the court). The language in paragraph (c)(3) that the court “may consider other material in the record” makes explicit the discretion of the trial court to make rulings in the interest of justice, regardless of whether facts are properly cited in the required statements. See new Rule 56(e). Rule 56(c)(4) is taken from the federal rule, with the reference to a “declaration” (an unsworn document executed subject to the penalties of perjury under 28 U.S.C. § 1746) omitted. The proposal is consistent with former V.R.C.P. 56(e) that provides, “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.” Rule 56(d) follows the federal rule, omitting the reference to a declaration. It is consistent with former V.R.C.P. 56(f), providing for unavailable affidavits: Rule 56(e) is taken from the federal rule. According to the federal Advisory Committee’s Note, the provision means that summary judgment can neither be granted nor denied by default under this rule. At most, facts are deemed admitted for purposes of the motion, and the merits of the motion must always be considered. The language of paragraph (e)(2) that the court may “consider the fact undisputed for purposes of the motion” varies the deemed-admitted proviso of former V.R.C.P. 56(c)(2). Under the current rule, a party’s failure to controvert facts in a counter-statement requires that the moving party’s undisputed facts be taken as true. Webb v. Leclair, 2007 VT 65, ¶¶ 1-7, 182 Vt. 559, 933 A.2d 177 (mem.); Openaire, Inc. v. L.K. Rossi Corp., 2007 VT 120, ¶¶ 11-16, 182 Vt. 636, 940 A.2d 724 (mem.); Gallipo v. City of Rutland, 2005 VT 83, ¶ 35, 178 Vt. 244, 882 A.2d 1177; Travelers Ins. Cos. v. Demarle, Inc., 2005 VT 53, ¶ 9, 178 Vt. 570, 878 A.2d 267 (mem.); Boulton v. CLD Consulting Eng’rs, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 834 A.2d 37; Richart v. Jackson, 171 Vt. 94, 97, 758 A.2d 319, 321 (2000). However under the new rule, the word “may” means the court may choose not to consider the fact as undisputed, for example if the court knows of record materials that show grounds for genuine dispute. The phrase, “for purposes of the motion,” clarifies that a party who failed to make a proper Rule 56 response or reply remains free to contest the fact in further proceedings. This would avoid such controversies as arose in Cassani v. Hale, 2010 VT 8, ¶ 20, 187 Vt. 336, 993 A.2d 422, as to whether an unopposed statement of undisputed material facts submitted for summary judgment is deemed admitted for all purposes including trial of any remaining issues even when the underlying motion for summary judgment is denied. Rule 56(e)(3) requiring decision on the merits of the motion is consistent with the Court’s interpretation of former V.R.C.P. 56(e). Under the former rule, the trial court may grant judgment “if appropriate” against a nonmovant who does not respond to a motion with “specific facts showing that there is a genuine issue for trial.” The Court has said “the failure to respond does not require an automatic summary judgment; rather, two requirements must be met: (1) the supporting materials must be both formally and substantively sufficient to show the absence of a fact question, and (2) summary judgment must be appropriate in the sense that the moving party is entitled to judgment as a matter of law.” Miller v. Merchants Bank, 138 Vt. 235, 238, 415 A.2d 196, 198 (1980) (citing Alpstetten Ass’n v. Kelly, 137 Vt. 508, 514-15, 408 A.2d 644, 647-48 (1979). Rule 56(f) is taken from the federal rule. Former V.R.C.P. 56(c)(3) allows summary judgment “if appropriate” for a nonmovant, but is silent as to summary judgment on the court’s own motion or on grounds not raised by a party. The new rule requires notice and time to respond before any such action. Rule 56(g), taken from the federal rule, is consistent with the former V.R.C.P. 56(d) providing for an order establishing uncontroverted material facts for purposes of trial. Rule 56(h) is taken from the federal rule, with the reference to a declaration omitted. Sanctions are made discretionary, and the requirement of notice and reference to other appropriate sanctions is new, but the rule is otherwise consistent with former V.R.C.P. 56(g).

Reporter’s Notes—2003 Amendment: Rule 56(c)(3) is amended to make clear that while entitlement to summary judgment is based on a review of the pleadings and other documents in the record, the relevant provisions of those documents must be referred to in the statement of material facts required by Rule 56(c)(2) in order for them to be considered by the court in ruling on the motion. The effect of the amendment is to put attorneys on notice that they must include in their Rule 56(c)(2) statements all of the facts that they have relied on in support of or in opposition to summary judgment, and that facts that are omitted from their statements will not be considered by the court in ruling on the motion.

Reporter’s Notes—1995 Amendment: Rule 56(c) is amended to add a new provision, designated as paragraph (2), comparable to Local Rule 5.C. of the United States District Court for the District of Vermont. The provisions of existing Rule 56(c) have been designated as paragraphs (1) and (3). The purpose of the new provision is to focus more directly the arguments on motions for summary judgment by requiring specifications by the parties as to the facts that they contend either are or are not in dispute. The rule seeks to change the present practice under which generalized claims as to whether material facts may be in dispute are frequently presented on motions for summary judgment. To assure that the required statements will assist the court without adding unduly to the length of the file, the statements must be set forth in numbered paragraphs with specific record references.

Reporter’s Notes—1984 Amendment: Rule 56(c) is amended to set a time limit on the response to a motion for summary judgment and to eliminate the reference to the hearing on the motion. There has been an apparent conflict between the requirement of Rule 78(b)(1) to submit a memorandum in opposition to a motion within 15 days and the authorization of this rule to submit opposing affidavits to a motion for summary judgment any time prior to the date of the hearing. See also Rule 6(d) (opposing affidavits to motions may be served 1 day before the hearing). Presumably, this rule also allowed a memorandum in opposition to be submitted any time prior to the day of the hearing since it would be difficult to prepare the memorandum without the affidavits. The trial judges have been unable to use their discretion under Rule 78(b)(2) to determine whether a hearing is necessary based on the papers filed because the papers weren’t filed until after the hearing was set. Further, the statement that the motion “shall be set for hearing” in the first sentence of subdivision (c) suggests that there must always be a hearing on a motion for summary judgment despite the wording of Rule 78(b)(2). The amendment deletes the first sentence of subdivision (c) allowing Rule 78 to govern the motion. The second sentence is amended to require the opposing party to submit affidavits and a memorandum in opposition within 30 days. This time limit is longer than the general time limit on response to a motion to enable the opposing party to obtain affidavits. The amendment will apply in District Court by virtue of the incorporation of this rule into D.C.C.R. 56.

Reporter’s Notes: This rule is nearly identical to Federal Rule 56. The rule, providing for all actions a comprehensive procedure for determining upon affidavits whether the pleadings present any issue of fact for trial, substantially broadens Vermont practice. Under former County Court Rule 9, a roughly comparable procedure was available to plaintiffs in “collection suits”—actions upon notes and similar matters. See Appliance Acceptance Corp. v. Raymond, 121 Vt. 153, 151 A.2d 316 (1959). See also former Chancery Rule 39 (summary foreclosure procedure). In other matters, however, Vermont followed the common-law rule barring “speaking demurrers,” that is, motions that challenged the sufficiency of the pleadings on the basis of facts outside the face of such pleadings. See Woodard v. Porter Hospital, 125 Vt. 264, 214 A.2d 67 (1965); Lapham Motors v. Rutland Ry. Corp., 119 Vt. 443, 128 A.2d 320 (1957). Rules 56(a) and (b) make clear that summary relief is available to either party in any action for all or part of the relief sought and set the time limits for the motion. Rule 56(c) is the heart of the rule, indicating that not only the pleadings and affidavits, but the responses to the various discovery devices, may be considered on motion for summary judgment, and providing that such judgment shall be rendered if the matters considered “show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Procedure under Rule 56 is not a trial of the underlying merits of the case on written affidavits. Rather, it resolves the question whether the party opposed to the motion can demonstrate that he has evidence sufficient to create an issue. If he can offer nothing in support of the allegations in his pleadings when the moving party has shown that his position is supported by evidence, then judgment should be entered without the time and expense of trial. The last two sentences of Rule 56(e) specifically so provide. Of course, the moving party need not offer affidavits. The motion can raise merely the legal sufficiency of the opponent’s case, serving the function of a motion to dismiss under Rule 12(b)(6) or a motion for judgment on the pleadings under Rule 12(c). Conversely, a motion made under one of those rules, if accompanied by matter outside the pleadings, may be treated as a motion under Rule 56. See Reporter’s Notes to Rule 12(b), (c). Rule 56(c) follows the Maine rule by providing for summary judgment against the moving party. That such a judgment may be granted is the better view under the federal rule even without specific provision. See 3 Barron & Holtzoff, Federal Practice and Procedure § 1239 (Wright ed. 1958). Rule 56(d) makes clear that summary judgment may be used to sort out those issues as to which there is no dispute in order to simplify trial. In this respect, procedure under Rule 56 serves as a kind of formalized pretrial and may be effectively used in conjunction with the pretrial conference. See 3 Barron & Holtzoff § 1241. Rule 56(e) contains provisions for the form of affidavits and provides that depositions and answers to interrogatories may be used to supplement or oppose them. Affidavits must be made on “personal knowledge” of the affiant, because the purpose of an affidavit is to demonstrate that admissible evidence of the fact exists. An affidavit of an attorney on information and belief does not comply with the rule. See Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827 (1950); 3 Barron & Holtzoff § 1237. As noted above, the last two sentences of the subdivision make clear that if the moving party files affidavits, his opponent may not rest upon the allegations of his pleadings, but must indicate by further submission the factual basis for his position.