Who Moves and When

Rule 56(b) answers the timing question with a default that gives way to local rules and court orders: "[u]nless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery."¹ Three rules sit inside that sentence. A party may move; the motion may be filed at any point up to a deadline measured from the end of discovery; and a local rule or court order can replace that deadline. Because the rule sets no earliest date, one question remains: what protects an opponent who is served early? The sections below take up the filing window, then the identity of the movant and the effect of cross-motions, and last the way a motion's timing can cut off a plaintiff's right to dismiss by notice.

The Filing Window

The window has no opening date. The motion "may be made at any time,"² and the rule text sets only a closing date, 30 days after all discovery ends.³ A closing date keyed to discovery suits a motion built from the record. The movant supports its position by citing particular materials such as depositions, documents, affidavits or declarations, stipulations, admissions, and interrogatory answers,⁴ and a deadline that runs from the close of all discovery lets the movant draw on everything discovery produced.

A wide window also fits what the motion can do. Its main purpose is to avoid useless trials and reach a final determination on the merits, but it can also simplify or prepare for trial. A ruling on only some issues or claims removes them from trial, and even a denied motion prompts an exchange of information that helps both parties shape their cases.⁵

The 30-day period is only a default. Federal judges manage their cases through conferences with counsel, and an early scheduling conference commonly sets deadlines for the stages of the case, including the filing of summary judgment motions.⁶ The first inquiry is therefore the court's local rules and the scheduling order in the case. The default governs where they are silent, and a different time set by either one displaces it.

Both results can flip once a scheduling order is in place. An order allowing summary judgment motions for 60 days after the close of discovery makes the July 20 filing timely. An order requiring such motions before discovery closes makes the June 20 filing late. A student who counts 30 days without first asking whether a local rule or order says otherwise has answered the wrong question.

Because the rule allows a motion at any time, a defendant may move before discovery is complete, and the danger falls on the nonmovant, who may not yet have the evidence needed to show a genuine dispute. The rule's answer is a procedure for the nonmovant: one who believes the motion came before there was sufficient opportunity to discover the facts needed to oppose it may move to defer consideration pending further discovery under Rule 56(d).⁷ A later section develops that rule. For now, a nonmovant should not assume that unfinished discovery will speak for itself. Decisions show a trend in which a nonmovant's failure formally to request a Rule 56 extension may result in summary judgment before discovery is complete.⁸

Movants and Cross-Motions

Either side may move. Plaintiffs and defendants alike may seek summary judgment if they believe no genuine dispute exists about any material fact and the law entitles them to judgment as a matter of law.¹⁰ The movant must identify each claim or defense, or the part of each, on which it seeks judgment,¹¹ so a plaintiff may move on its own claim or on a defense pleaded against it, and a defendant on the plaintiff's claim or on its own defense.

Whoever moves carries the initial showing. The court grants the motion if the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.¹² Once the movant's papers make that showing, the burden shifts to the opposing party to introduce outside evidence rebutting it.¹³

Cross-motions put each party in both roles: movant on its own motion and opponent on the other's. Each motion therefore rests on its own movant's showing, and on each the court views the facts and draws reasonable inferences in the light most favorable to the party opposing it.¹⁴ The same record is thus read in one direction on the plaintiff's motion and in the other on the defendant's. A party's claim that the facts are undisputed is a claim about its own version of them, so filing two motions concedes nothing. If the versions conflict on a material fact, the court may deny both.

Hypothetical Illustration

A buyer and a seller each move for summary judgment in a contract suit, and each declares that the facts are undisputed and the law is on its side. The buyer relies on the written delivery date. The seller relies on an email that, in the seller's account, extended that date, and the buyer's affidavit denies that the email was ever agreed to. The two motions settle nothing about the email. The record holds sworn accounts on each side of a material fact, and the court denies both motions. In a second suit, the parties stipulate to every fact, including the signed agreement and the delivery date, and disagree only over whether late delivery excuses payment. The court still rules on each motion separately, but the dispute is purely legal, so it can grant one motion and deny the other.

Timing and Dismissal by Notice

The timing of a summary judgment motion also affects a plaintiff's ability to leave the case. A plaintiff may dismiss without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, or by stipulation of all the parties.¹⁶ The cutoff is whichever event comes first, and service of the motion alone is enough to end the right. Because a summary judgment motion may be made at any time, an early motion can close off the plaintiff's easiest exit before the defendant has answered.

After the cutoff, the plaintiff needs a stipulation or a court order. On a motion for dismissal by order, the court asks whether dismissal would cause the defendant plain legal prejudice, beyond the tactical advantage any plaintiff seeks by dismissing, and it may consider the plaintiff's reasons. The court can condition dismissal on payment of the defendant's costs and other terms that mitigate the prejudice, and the dismissal is without prejudice to a new action on the same claims unless the court says otherwise.¹⁷ The rule on dismissal speaks of service of the motion, while the summary judgment deadline speaks of filing, so the two events should not be run together.