by Hon. Jennifer C. Boal
Summary judgment motions are a useful tool in any litigant’s arsenal. However, too often, they are used improvidently or are laden with technical defects. I offer some observations from the bench hopefully to help hone practitioners’ decisions whether to file such motions, and, if they do, to highlight some techniques for successful ones.
Whether to file a summary judgment motion. Successful summary judgment motions may narrow the issues for trial or resolve a case entirely. They are also time consuming and expensive. They have the potential to delay a case for months. Too often, lawyers perfunctorily file motions for summary judgment without fully analyzing whether it is appropriate to do so. The substantive claims in many cases, such as employment discrimination cases, are ill suited to summary judgment because each side may present a different version of the facts. Before expending the resources to draft a summary judgment motion, carefully consider whether such a motion is likely to be successful and whether the resources are better spent preparing for trial. A poorly thought-out summary judgment motion may affect both counsel’s credibility with the judge as well as the judge’s view of the case. The best summary judgment motion may be none at all.
Know the lay of the land. Understanding the legal framework for summary judgment motions is crucial to a litigant’s success. In federal court, Rule 56(a) of the Federal Rules of Civil Procedure sets the standard: “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.” Fed.R.Civ.P. 56(a). Rule 56(c) outlines the procedures for summary judgment motions including that each fact must be supported by citation to a particular part of the record.
In the District of Massachusetts, Local Rule 56.1 requires the filing of a concise statement of material facts, as to which the moving party contends there is no issue to be tried, with page references to admissible evidence. L.R. 56.1. Failure to include such a statement may alone constitute grounds for the denial of a motion. Id. An opposing party must include a similar statement with page references to contradictory evidence. Material facts will be deemed admitted unless properly opposed. Id. The First Circuit has repeatedly emphasized the importance of local rules in this context and found that such rules are meant to ease the district court’s task and to prevent the parties from unfairly shifting the burdens of litigation to the court. See, e.g., Caban Hernandez v. Phillip Morris USA, Inc., 486 F.3d 1, 7-8 (1st Cir. 2007).
In addition, many judges in the District of Massachusetts have standing orders with respect to summary judgment motions. Such orders are available through the District’s website under each judge’s individual page. Among other requirements, for example, my standing order directs the parties to file one combined statement of material undisputed facts and provides instructions with respect to exhibits.
Timing of summary judgment motions. Courts may set a deadline for the filing of summary judgment motions that is frequently after the close of fact discovery. See also Fed.R.Civ.P. 56(b). Nevertheless, some practitioners file for various reasons before the conclusion of such discovery. Such motions may invite a Rule 56(d) motion by the opposing party, which must show that it cannot present facts essential to justify its opposition. Successful Rule 56(d) motions typically cite, as the reason for the litigants’ inability to present facts in opposition, to the need for further discovery. In that case, the moving party may have wasted time and money as a result of prematurely moving for summary judgment. For these reasons, think carefully about the timing of summary judgment motions.
Pitfalls of the L.R. 56.1 statement. A well-crafted 56.1 statement is the key to a summary judgment motion’s success. Many lawyers successfully navigate the L.R. 56.1 requirements. Others, however, make material errors with respect to drafting and supporting such statements. Litigants should keep the following in mind:
- Be concise with respect to the entire 56.1 statement and each statement of fact therein. There is typically no need to provide a narrative of the whole case. Each statement should be precise, supported by page citations, and set forth material facts to which the movant shows there is no genuine dispute. Page citations must be accurate. Make sure the judge is able to easily locate the cited reference.
- Do not present a fact as undisputed unless it is indeed undisputed. Citing to one side’s interrogatory answers may not win the day where the other side will likely point to contradictory testimony.
- 56.1 statements should not be argumentative. Argumentative statements often cause motions to strike which in turn cause further delay. Rather, the parties should typically present and oppose facts. A proper response is “disputed” with citations to the record or “undisputed.” The response is not usually the place to argue about the law, discovery in the case, or an opposing lawyer’s conduct. For that reason, a party opposing summary judgment generally may not create a genuine issue of fact by stating that he is without sufficient information to admit or deny a statement. Such deficiency typically should be addressed either by a Rule 56(d) motion or through motions concerning the adequacy of discovery filed before the summary judgment deadline.
- Statements of fact and responses thereto must be properly substantiated. Disputing a statement but failing to provide citations to contradictory evidence may well result in the admission of that fact. For example, responding to a statement of fact by merely stating that it is deliberately misleading without a citation is typically insufficient.
- Do not submit unnecessary statements of fact. Occasionally a responding party attempts to bury the other side by submitting hundreds of statements of fact. If those statements of fact are not linked in that party’s memorandum to the claims in the case, then a court may well disregard them. A court does not have to hunt for evidence with respect to a particular claim. Endicott Constr. Corp. v. E.Amanti & Sons, No. 14-cv-12807-LTS, 2017 WL 3028877, at *15 n.166 (D. Mass. July 14, 2017).
- Affidavits or declarations in support of a summary judgment pleading must set out facts that would be admissible at trial and show that the witness is competent to testify on the matters stated. Fed.R.Civ.P. 56(c)(4). An affidavit or declaration will not be disregarded merely because it is self-serving. But be aware of the sham affidavit rule. A party may not create a genuine issue of fact simply by contradicting a previous sworn statement without explaining the contradiction or attempting to resolve the disparity.
- Documents in support of L.R. 56.1 statements must be authenticated. However, the proponent need not rule out all possibilities inconsistent with authenticity. Affidavits or declarations attesting to authenticity are frequently sufficient. If a party disputes the admissibility of a document cited in support of a statement of fact, it must explain why. If an argument is undeveloped, a court may find the argument to be waived.
Summary judgment motions should be used wisely and with proficiency. When executed correctly, they are a valuable litigation tool that promotes a just resolution of the issues presented.
Hon. Jennifer C. Boal currently serves as a United States Magistrate Judge in Boston, Massachusetts, and has served in that capacity since 2010. She was the Chief Magistrate Judge from 2014 to 2017. Prior to her selection as a federal judge, she served in the United States Attorney’s Office for the District of Massachusetts, as well as the United States Attorney’s Office for the Eastern District of New York. For the last eight years of her career at the Department of Justice, she was the Chief of the Civil Division in the U.S. Attorney’s Office for the District of Massachusetts.
