Partial Summary Judgment

Summary judgment does not have to end a lawsuit to be worth seeking. Rule 56(a) lets a movant identify each claim or defense, "or the part of each claim or defense," on which it wants judgment, and the court must grant the motion as to that part if the movant shows no genuine dispute as to any material fact and entitlement to judgment as a matter of law.¹ Rule 56(g) then covers the movant who wins less than it asked for: the court may record the material facts that are not genuinely in dispute and treat them as established in the case.² The first provision lets the court decide the settled parts of a case. The second fixes settled facts even when the court grants less than the movant requested.

Judgment on Part of a Claim

A partial summary judgment is a summary judgment limited to certain issues that disposes of only a portion of the whole case; it is also termed summary adjudication.³ The portion may be a single claim, counterclaim, or defense, or a piece of one, such as the existence of liability or the amount of damages owed if liability is established at trial.⁴ A court may therefore grant judgment on one or fewer than all claims or parties, or on part of a claim, and leave the rest for trial.⁵

The standard does not change when the target shrinks. For the part it names, the movant must show that no genuine dispute exists as to any material fact and that the law entitles it to judgment, and a dispute elsewhere in the case does not defeat that showing. A motion that names a definite target gives the court something definite to rule on, and the rule directs the court to state on the record its reasons for granting or denying the motion.⁶

The reason for the rule lies in what a trial is for. A trial exists to resolve factual disputes, so when the court finds no genuine dispute as to any material fact, a trial would be pointless, and the court can apply the law to the facts without a jury.⁷ That logic runs part by part. A part with no genuine factual dispute needs no jury, and a part that is genuinely disputed still does, so the court decides the first and leaves the second for trial.⁸

The liability-only judgment is the standard application. When a plaintiff sues for breach of contract and no genuine dispute exists about whether a breach occurred, the court might grant partial summary judgment on liability and then probably try only the remaining issue, damages.⁹ The two questions split so often because damages, especially if they include pain and suffering, emotional distress, or punitive damages, almost always remain genuinely disputed even when liability does not, and a trial must ascertain them.¹⁰ In the Slaven example, the undisputed facts at best establish the city of Salem's liability, so Slaven may obtain partial summary judgment on liability but must still prove her damages.¹¹

A motion can also resolve individual claims in a multi-claim lawsuit, or the claims by or against one party, and leave the others for trial.¹³ Carnegie's suit against Astor shows how that works.

A motion aimed at part of a case still fails as to that part when a genuine dispute remains on it, and a credibility question can supply the dispute. The court will not weigh the actual credibility of any witness, because that is the jury's role. It asks only whether there is reason to believe that credibility may be determinative, and if so, it denies summary judgment.¹⁶ The opponent must therefore introduce facts showing why a witness's credibility is in question, typically that the witness is a party and so not disinterested, or that the issue rests on a person's state of mind or motive.¹⁷ A genuine dispute defeats the motion only as to the part it touches, so the motion is never all-or-nothing.

Orders Establishing Facts

Rule 56(g) applies when the court does not grant all the relief a motion requests, whether it denies the motion outright or grants it only in part. The court then may enter an order stating any material fact, including an item of damages or other relief, that is not genuinely in dispute, and the order treats that fact as established in the case.¹⁹ The order preserves work the court has already done. To rule on the motion, the judge searched the record and found that some facts cannot genuinely be contested, and an established fact drops out of the trial instead of being proved again.

Rule 56(a) and Rule 56(g) operate at different levels. Rule 56(a) yields a judgment that disposes of a claim, a defense, or a part of one. Rule 56(g) yields an order that fixes individual facts, and it can do so even when those facts dispose of nothing. The verbs differ as well: the court shall grant a motion on the targeted part once the showing is made, but it only may enter a Rule 56(g) order.²⁰ Because the order reaches only facts not genuinely in dispute, the same genuineness inquiry that governs the motion decides which facts qualify, and a fact whose resolution may turn on a witness's credibility stays open for trial.²¹

The order does not dispose of any claim or defense. It fixes only the facts it states, and everything else stays open for trial.²³