Concept
Supporting Factual Positions
Adjudication without a trial
Supporting Factual Positions
Rule 56(c)(1) puts a duty on both sides of the motion: a party asserting that a fact cannot be or is genuinely disputed must support the assertion.1 The movant makes such an assertion when it calls a fact beyond genuine dispute, and the opponent makes one when it calls the same fact genuinely disputed. A brief that merely announces either position proves nothing. Rule 56(c) gathers the procedures for supporting and opposing the motion, and paragraph (1) sets the baseline from which the other paragraphs work.2
The duty follows from the way the court decides. A trial exists to resolve factual disputes between the parties, usually before a jury, so when no genuine dispute exists a trial would be pointless and the court can apply the law to the facts itself.3 The motion asks that question in advance by previewing, usually in documents, the evidence the parties would present at trial. In a jury case the judge asks whether, if the case were tried tomorrow, the nonmovant would have a fair chance of a verdict.4 That inquiry requires evidence, not characterization. The party asserting a claim must come forward with evidence sufficient to support a finding in its favor,5 and if a lawyer’s statement that a fact was disputed or undisputed could settle the point, the judge would be choosing between competing descriptions of the proof.
The rule names two ways to meet the duty. One is to cite particular parts of materials in the record: depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.6 The other is to show 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.7 The first route builds a record by pointing to proof, and the second tests a record someone else has built. Either side may use either route, as a short exchange over one fact shows.
The two routes recur through the rest of the chapter, in the burdens each side carries and in the rulings that follow when support is missing. Citing the record comes first, because an attack on the other side’s showing presupposes a record that someone has cited. The exercise also pays off beyond the ruling: even when the court denies the motion, the exchange of information needed to decide it may help both parties shape their cases for trial.8
Citing the Record
Rule 56(c)(1)(A) lets a party support a factual position by citing “particular parts of materials in the record,” among them depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made only for the motion), admissions, interrogatory answers, and other materials.9 Two phrases carry the weight. The materials must come from the record, meaning the evidence the parties have actually generated, and the citation must point to a particular part of them.
Particularity matters because the judge rules on paper. The court need consider only the materials the parties cite, although it may consider others in the record.10 A party who gestures at “the discovery” leaves the judge to search the file and the opponent to guess what to answer. A party who names the deposition page and line, the affidavit paragraph, or the exhibit number lets the court check whether the material says what the brief claims, and lets the opponent answer that material specifically. Since only cited material is sure to be read, the burden of locating the proof falls on the party who needs it.
Each listed item puts someone’s knowledge before the judge without calling a witness. A deposition is testimony given before trial in answer to the lawyers’ questions. An affidavit or declaration is a witness’s written statement of facts, sworn to be true.11 Interrogatory answers are a party’s written responses to the other side’s written questions, and an admission is a party’s acknowledgment that a fact is true. A stipulation is the parties’ agreement on a fact, and the rule’s parenthetical allows an agreement that reaches only as far as the motion, so the parties can take a fact off the table for the ruling without conceding it for trial. These materials are not always admissible at trial in their own form, but they show that the party has evidence that would be. An affidavit from a witness demonstrates that the witness could come to court and give the same testimony.12
The pleading is missing from the list. A complaint or answer records what a party says it can prove, and the motion exists to look behind it. Under the traditional rules a challenge was decided on the face of the pleadings, and the attacking party could not “go behind the pleading.” Summary judgment answers the recognition that a pleading can present a legitimate-looking legal dispute when none exists.13 It follows that a party cannot create a dispute by repeating its allegations or defeat a showing by repeating its denials. The Supreme Court has quoted the rule’s former language on the point: a party opposing a properly supported motion “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.”14 A Massachusetts decision applying that language shows the principle at work. The plaintiff alleged that the city knew or should have known a prisoner was suicidal, and the officers’ affidavits stated facts within their personal knowledge showing that none of them knew. To avoid judgment, the plaintiff had to allege specific facts establishing a genuine, triable issue.15 The current text reaches the same place by listing the materials that count, and a party’s own pleading is not among them. A promise to produce evidence at trial fares no better. It creates no present dispute and defeats the purpose of previewing the trial evidence, because the opponent must offer affidavits or comparable evidence setting out specific facts now.16
The promissory-note case shows the rule working on both sides of one fact. P sues D on a note, and D’s answer denies signing.17 P moves for summary judgment and attaches X’s affidavit stating that X saw D sign.18 A proper citation tells the court where to look: the brief identifies X’s affidavit and the paragraph in which X describes the signing, and it attaches the note as a document. That is a particular part of listed record material offered for the fact that D signed, which is what clause (A) requires.
D’s response depends on what D can cite. The denial in the answer settles nothing, because D cannot avoid summary judgment by repeating a pleading’s denial.19 A sentence in counsel’s brief promising to prove forgery at trial settles no more; it promises evidence for later when the motion asks what the record shows now.20 D succeeds by pointing to record material that speaks to the signing: an affidavit or deposition testimony, even D’s own, asserting that the signature is a forgery or was obtained by duress.21 Once D’s affidavit denies the signing, the court must deny the motion even if P adds affidavits from twenty-six disinterested witnesses, because choosing among those accounts is the jury’s work.22 D has a second option, showing that P cannot produce admissible evidence of the signing, and that route is the subject of the next part.23
Attacking the Opponent’s Showing
Rule 56(c)(1)(B) gives the second way to support a factual position: a party may show “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.”25 Citing the record builds proof; this route works on the other side’s record. Its two clauses do different jobs. The first tests whether the papers a party cited can carry the weight placed on them. The second asks whether the opponent has any admissible evidence of the fact at all. A leading decision illustrates each clause, and comparing the two shows when each applies.
The first clause is symmetrical, because the rule speaks of both the absence and the presence of a genuine dispute. A movant who says no dispute exists can be answered by showing that the movant’s own materials do not establish that. A party who says a dispute exists can be answered by showing that its cited materials, read for what they actually say, create none. The attack in either direction targets the cited paper itself. The check suits a motion decided without witnesses, since the judge learns about the facts only what the cited materials show, and a party whose citations overstated their content would otherwise win on the strength of its own description.
In Adickes v. S. H. Kress & Co., a white teacher who was refused service at a Kress store while accompanied by Black students, and was then arrested for vagrancy, sued the store under 42 U.S.C. § 1983. She alleged that the store had conspired with the local police to deny her service. The district court granted the store’s motion for summary judgment, and the Supreme Court reversed. The store’s own materials contained “unexplained gaps”: the officers’ affidavits did not say whether either officer was in the store while she waited, and nothing the store submitted ruled out that a policeman was present and reached an understanding with an employee. That was a critical fact, because a jury could infer a meeting of the minds if a policeman had been there. The store had therefore not shown the absence of a genuine dispute.
In the rule’s terms, the store’s materials did not establish the absence of a genuine dispute, and that failure sufficed to defeat the motion although the teacher filed no opposing affidavits. A movant always bears the initial responsibility of informing the court of the basis for its motion and identifying the parts of the record that show no genuine dispute.26 Only against a properly supported motion must the opponent come forward with specific facts.27 Had the store filed affidavits from the officers denying that they were in the store, the teacher could no longer have rested on her complaint. She would have needed an affidavit from someone who saw a policeman there, or an explanation of why she could not yet obtain one.
The second clause carries the idea of Celotex Corp. v. Catrett. Catrett claimed that her husband’s death from asbestosis resulted from exposure to the products of numerous defendants, Celotex among them.28 After an opportunity for discovery, Celotex moved for summary judgment on the ground that she had produced no evidence that her husband had been exposed to its products, and Catrett responded by identifying three pieces of evidence she said would show exposure.29 Celotex had made no effort to adduce evidence, in the form of affidavits or otherwise, to support its motion. The court of appeals held the motion “fatally defective” for that reason and declined to consider Celotex’s argument that none of Catrett’s evidence would be admissible at trial.30 The Supreme Court reversed. The plain language of Rule 56(c), it said, mandates summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish an element essential to that party’s case and on which that party will bear the burden of proof at trial. A complete failure of proof on such an element renders every other fact immaterial.31
The movant’s burden is therefore not a duty to disprove the claim. It can be discharged by showing, that is, by pointing out to the district court, that the record contains no evidence to support the nonmoving party’s case.32 The Court tied the burden of production on the motion to the burden of proof that applies at trial, so a defendant could shift the burden of production with something less than a showing that the plaintiff could not possibly prevail.33 The rule takes this shape for a reason the Court tied to notice pleading. Motions to dismiss seldom isolate factually insufficient claims any more, and summary judgment has taken their place. Rule 56 must therefore be read with regard both for those whose claims have a factual basis and are entitled to a jury, and for those opposing claims that have none, who may show so before trial in the way the rule provides.34 The qualifier about adequate discovery protects the nonmovant, and a later section takes up Rule 56(d), which governs a motion that arrives before the needed facts are available.
Celotex did not overrule Adickes. The Court agreed that, on the showing before it in Adickes, the motion should have been denied, and it declined to read Adickes to require a movant to produce evidence disproving a fact on which the nonmovant bears the burden of proof.35 What separates the cases is the content of the movant’s papers. The store tried to establish a negative, that no policeman was present, with materials that left the point open. Celotex pointed to a record in which nothing, after an opportunity for discovery, supported an element Catrett had to prove. Celotex does not let a movant merely announce that the opponent has no evidence. The movant must inform the court of the basis for its motion and identify the portions of the record it relies on,36 though just what a movant must do to show an absence of evidence remains somewhat unclear.37
The Court’s analysis drew on rule text that has since changed. The version it quoted allowed summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, “together with the affidavits, if any,” showed no genuine issue of material fact.38 The current rule lists affidavits as one kind of record material among many,39 and clause (B) states the pointing-out route in the rule itself. The word admissible in clause (B) links it to Rule 56(c)(2), which lets a party object that cited material cannot be presented in a form that would be admissible in evidence.40 The next section takes up that objection.
Two errors recur. The first assumes that a movant must always attach affidavits disproving the opponent’s claim, which clause (B) and Celotex reject whenever the opponent bears the burden of proof at trial. The second assumes that an opponent who files nothing necessarily loses, which Adickes refutes whenever the movant’s own materials leave a critical fact open.