Civil Procedure II

Summary Judgment

A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. 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. . . .

Rule 56(a).

The movant has the burden of production, meaning it must produce material facts not in dispute establishing that there is no genuine dispute as to a material fact. The burden of production then shifts to the non-moving party to establish that there is a genuine dispute of material fact. Summary judgment must be entered when the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex.

All reasonable inferences must be drawn and conflicting evidence resolved in favor of the nonmovant. Liberty Lobby. However, if two things point equally to the same thing, no inference can be drawn and the party with the burden of proof loses.

Unless a local rule or court order says otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. Rule 56(b).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

  1. 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
  2. showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Rule 56(c).

Federal courts allow admissible affidavits to support summary judgment motions. Virginia courts do not.

Summary judgment is generally not appropriate in mixed question of law and fact.