When Facts Are Unavailable

When Facts Are Unavailable

A summary judgment motion can arrive before the opposing party has gathered the evidence needed to answer it. Unless a local rule or court order sets a different time, a party may file the motion at any time until 30 days after the close of all discovery, so nothing in the timing rule fixes an earliest date.¹ Rule 56(d) protects the nonmovant against that risk, and it works through a sworn paper rather than a bare request.

The rule applies when a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.² A lawyer's remark in a brief that discovery is unfinished is neither an affidavit nor a declaration, so it does not qualify. Each part of the showing limits the request. The facts must be essential, so the court has no reason to wait for facts that could not matter. The nonmovant must be unable to present them at that time, so a party that has already had its discovery stands differently from one that has barely begun. And the reasons must be specified and sworn, so the court can see what is missing, why it is missing, and what discovery would supply it. The same logic explains why a general confession of ignorance fails. "I don't yet know whether the facts are disputed" is not a sufficient response to summary judgment, though the right sworn request can buy the time to find out through discovery.³ The provision eases the nonmovant's burden without removing it: the opposing party meets its responsive burden by showing why it cannot present evidence in opposition at that time, and if the court finds those reasons valid, it may deny or postpone summary judgment.⁴

If the court accepts the showing, the rule offers three kinds of response. It may defer considering the motion or deny it, it may allow time to obtain affidavits or declarations or to take discovery, or it may issue any other appropriate order.⁵ Deferral holds the ruling until the record is complete, and time for affidavits or discovery supplies exactly what the sworn paper said was missing. Because the rule says the court may act, the choice is discretionary. Even when the motion fails, the exchange of information that precedes the ruling may help both parties shape their cases for trial.⁶

The Slaven problem shows the rule at work. The plaintiff's claim depends on whether jailors knew, or had reason to know, that her brother was suicidal. If the jailors deny knowing, how will she ever prove otherwise? The discovery rules answer the question, because they let her require the jailors to testify under oath in depositions or in answers to interrogatories. And if the city moves for summary judgment before she has taken that discovery, Massachusetts Rule 56(f), the counterpart of Federal Rule 56(d), lets her file an affidavit to obtain a continuance, a delay before she must respond, so that she can finish.⁷ A Massachusetts decision applying that rule adds the other half. A plaintiff unable to present by affidavit the facts essential to her opposition must file an affidavit stating the reasons for that inability, and a party must resort to the rule when it cannot present a sufficient affidavit because the movant possesses or controls the necessary facts.⁸ Her difficulty is therefore one of time and form. The facts sit with the defendants, but the rules give her both a way to pry them loose and a way to ask the court to wait.

That plaintiff is the litigant who gets hurt in practice. Decisions show a trend toward granting summary judgment before discovery is complete when the nonmovant never formally requested the extension.⁹

A movant's sworn account of its own state of mind raises a different problem, one that more time does not always solve. The party opposing summary judgment must show why a witness's credibility is in question. That typically means showing that the witness is a party, or that the issue of fact rests on the actor's state of mind or motive, so that the outcome ultimately turns on what that person says was in his mind at a given time. The court does not weigh credibility, which is the jury's role. It asks only whether there is reason to believe credibility may be determinative, and if so, it denies summary judgment.¹⁰ Discovery may let the nonmovant examine the movant under oath, as Slaven can the jailors. But when the issue still turns on whether the movant's account of its own mind is believed, that is a credibility question, and credibility belongs to the jury.

The two lines of authority answer different questions. Rule 56(d) asks whether the nonmovant can fairly be expected to have the facts yet, and whether discovery will reach them. The credibility rule asks whether the facts, once in hand, will turn on whom the jury believes.

Celotex shows why an early motion is tolerable. The action began in September 1980 and the motion followed in September 1981. The parties had conducted discovery, and the Court saw no serious claim that the nonmovant had been "railroaded" by a premature motion. It added that any problem with premature motions can be handled under Rule 56(f), which allows the motion to be denied, or the hearing continued, if the nonmoving party has not had an opportunity to make full discovery.¹¹ The burden of asking falls on the nonmovant. If it feels the motion is premature, before there has been sufficient opportunity to discover the facts needed to oppose it, it may move to defer consideration pending further discovery.¹²

Celotex cites the provision as Rule 56(f), the number it carried then, and the same provision now appears as Rule 56(d).¹³ Today's Rule 56(f) is a different provision, one that lets a court grant summary judgment without a motion by either party, and the unit on judgment independent of the motion takes it up.¹⁴