Concept

When Facts Are Unavailable

Summary judgment motions

When Facts Are Unavailable

A nonmovant who cannot yet answer a summary judgment motion has a rule written for it. Rule 56(d) applies when the nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, and it lets the court respond with anything from a short pause to outright denial.¹ The rule is a safety valve on the duty described in the earlier sections. When the movant's papers show that no genuine dispute of material fact exists, the burden shifts to the opposing party to introduce outside evidence rebutting that conclusion. If it introduces none, the movant's evidence is taken as true, and in most cases summary judgment follows.² That duty assumes the nonmovant has evidence within reach. Rule 56(d) serves the nonmovant whose evidence, for now, is not.

Two features of summary judgment practice put nonmovants in that position. The first is timing. Rule 56(b) lets a party move at any time until 30 days after the close of all discovery, unless a local rule or court order sets a different time, so a motion can arrive before the opponent has taken a single deposition.³ A nonmovant that believes the motion came before it had a sufficient opportunity to discover the facts needed to oppose it may move to defer consideration pending further discovery.⁴ The second is control of the evidence. The facts that decide a claim often sit with the movant, and a motion built on affidavits from the movant's own employees asks the nonmovant to contradict sworn accounts of facts it cannot yet reach.⁵ Without a safety valve, the duty to produce evidence would penalize the nonmovant for something it could not have done.

Hypothetical Illustration

An employee sues a manufacturer, alleging that it fired the employee for reporting safety violations. Six weeks after the complaint, before anyone has been deposed, the manufacturer moves for summary judgment and files affidavits from the plant manager and a human-resources director swearing that the decision rested solely on attendance records. The reasons for the firing, and the records behind them, belong to the manufacturer. The employee has not yet deposed either manager or requested the documents, and so cannot contradict their accounts. Rule 56(d) is addressed to this employee, but it conditions relief on a sworn explanation of what facts are needed and why they are out of reach. An employee who files nothing leaves the court free to rule on the record as it stands.

Celotex Corp. v. Catrett shows how the safety valve fits the early-filing window. The parties there had conducted discovery, and the Court saw no serious claim that the nonmovant had been “railroaded” by a premature motion.⁶ Any potential problem with premature motions, the Court added, can be adequately dealt with under Rule 56(f), the provision now numbered Rule 56(d), which allows the court to deny the motion or continue the hearing if the nonmoving party has not had an opportunity to make full discovery.⁷ Two questions follow. What must the nonmovant put in its affidavit or declaration? And what may the court do once the showing is made? The next two subsections take them in that order.

Showing Why Facts Are Unavailable

Rule 56(d) makes relief depend on a showing with three parts, each visible in its text. The nonmovant must make the showing by affidavit or declaration, a signed statement of facts rather than an argument in a brief. It must give “specified reasons” why it cannot respond fully now. And what it cannot present must be “facts essential to justify its opposition.”⁸ The signed statement ties the account to someone who answers for its accuracy. The specified reasons tell the court what stands in the way. The requirement of essential facts tells the court why the missing material matters to the motion at all.

The showing does more than explain a delay, because it is how a nonmovant with no evidence to offer meets its burden. To ease that burden, the rule lets the opposing party meet its responsive burden by showing why it is unable at that time to present evidence in opposition, and if the court finds those reasons valid, it may deny or postpone summary judgment.⁹ The court can judge validity only from specifics. A judge told which witnesses remain undeposed and which records the movant holds can ask whether the evidence exists, whether it bears on the motion, and whether more time is likely to produce it. Only the nonmovant knows what it lacks, so the rule gives it the work of identifying the gap and explaining it. And because Rule 56(b) lets the movant file early,¹⁰ a bare request for more time would ask the court to postpone a ruling the movant was entitled to seek, on no stated ground.

The commonest mistake is to offer uncertainty in place of a showing. A response that the nonmovant does not yet know whether the facts are disputed does not defeat a supported motion, although the same response can buy time to find out by taking discovery.¹¹ The first half holds because the motion asks what the record shows now, and an admission of ignorance adds nothing to the record. The second half holds because the rule turns ignorance into a request the court can grant, but only when the nonmovant states under oath what it is missing and why.

Slaven v. City of Salem, a Massachusetts decision applying the state counterpart of Rule 56(d), shows the rule at work. Slaven's claim required her to show that the jailors holding her brother knew, or had reason to know, of his suicidal tendencies. The city won summary judgment on affidavits from police officers, and on appeal she argued that the judge erred because the affidavits rested on facts known only to the officers, who were interested parties. The court answered that a plaintiff who cannot present by affidavit the facts essential to her opposition must file an affidavit stating the reasons for that inability. A party must resort to the state counterpart of Rule 56(d), it said, when the necessary facts or evidence are possessed or controlled by the moving party.¹²

Slaven started at a disadvantage, since the city had ready access to its own employees, who were unlikely to speak candidly with her after she sued. But the discovery rules let her require them to testify under oath in depositions or in answers to interrogatories, and the continuance provision expressly let her file an affidavit to obtain a delay while she completed that discovery.¹³ She chose a different plan. She argued that she could prove the city's knowledge by cross-examining the officers and, on their denial, thereby establishing the affirmative, and the court firmly rejected that contention.¹⁴ Her sympathetic position did not supply the sworn statement of need that the rule requires.

Hypothetical Illustration

A shipper sues a carrier over a lost pallet of machine parts. A few weeks after the complaint, the carrier moves for summary judgment on an affidavit from its dispatcher swearing that the pallet was delivered and signed for. The shipper's lawyer files a declaration stating that the signed delivery log and the truck's tracking records are in the carrier's possession, that requests for both were served on March 1 and remain unanswered, and that the dispatcher and the dock employee named in the log have been noticed for deposition. The declaration adds that these records and witnesses are expected to show whether anyone at the consignee's dock actually signed on the stated date, which decides whether delivery occurred. The court has what it needs to find the reasons valid and postpone its ruling. Had the lawyer filed only a brief voicing the hope that discovery would show nondelivery, the court would have had nothing sworn, no named source, and no reason to expect more time to change the record. The dispatcher's affidavit would then stand uncontradicted, and the motion would likely be granted.

Each sentence of the declaration answers a term of the rule. The log, the tracking data, and the two employees are the facts the shipper cannot yet present. The unanswered requests and pending deposition notices are the specified reasons. The dispute over who signed on the delivery date shows that the facts are essential, because they decide the point on which the motion depends.¹⁵ The version built on hope fails on all three counts, since counsel's prediction is unsworn, names no missing fact, and gives the court nothing whose importance it could assess.

Exam Analysis Steps

Because the rule asks for a sworn and particular account, a declaration is best tested one statement at a time. The steps are these:

Confirm that the statement comes by affidavit or declaration, since counsel's argument in a brief is not a showing under the rule.
Identify the particular facts the nonmovant says it needs, such as named witnesses or specific records, and reject a general statement that it does not yet know whether the facts are disputed.
Ask whether those facts are essential to the opposition, meaning that they bear on an issue on which the motion depends.
Find the reasons the facts are out of reach now, such as records held by the movant or witnesses not yet deposed, and check that the reasons are specified rather than assumed.
Compare those reasons with the opportunity for discovery the nonmovant has already had.

The last step matters because the relief Celotex described goes to a nonmoving party that has not had an opportunity to make full discovery.¹⁶ The Court found no “railroading” where the parties had already conducted discovery.¹⁷ A declaration that asks for time but says nothing about what discovery the nonmovant has already pursued leaves the court unable to tell which situation it faces. A nonmovant with months of open discovery that never sought the testimony or records it now calls essential invites the inference that it never looked. One facing a motion filed weeks after the complaint, with document requests outstanding and depositions noticed, is in the position the rule exists to protect.

A nonmovant that never invokes the rule takes a risk. There appears to be a trend toward granting summary judgment before discovery is complete when the nonmovant fails formally to request a Rule 56 extension.¹⁸ If the movant's papers are sufficient, the burden shifts, and a nonmovant that offers no outside evidence sees the movant's evidence taken as true.¹⁹ An exam stem that says discovery is still open and the nonmovant needs more time therefore turns on one detail: whether it describes a sworn statement specifying what is missing and why. If it does, the court has grounds to defer or deny the motion. If the nonmovant filed only a brief, or nothing, the court may rule on the record it has.

Deferral, Denial, or More Time

Once the nonmovant makes the sworn showing, Rule 56(d) gives the court three kinds of response. It may defer considering the motion or deny it.²² It may allow time to obtain affidavits or declarations or to take discovery.²³ Or it may issue any other appropriate order.²⁴ The menu exists because the gaps a declaration reveals differ in kind. A missing deposition calls for time, a missing set of records may call for an order to produce them, and a motion filed before the nonmovant could gather anything may call for a pause. The choice belongs to the court, and it reaches the choice only after finding the stated reasons valid.²⁵ The same tool appears when a court converts a pleading challenge into a summary judgment motion, as a later section explains: the court can always delay the hearing until the respondent has had time to prepare, which mitigates any possible prejudice.²⁶

Deferral and denial both leave the movant without a judgment for now, but they act on the motion differently. A court that defers keeps the motion pending and rules after the nonmovant has had a chance to fill the gap, so the same motion is decided later on a fuller record. A court that denies the motion rules against the movant on the present record, and the ground is that the nonmovant cannot yet respond, not a finding that a genuine dispute exists. Celotex describes the same alternatives, since the motion may be denied or the hearing continued.²⁷ Even a motion that fails may do some good. If summary judgment is ultimately denied, the exchange of information that occurs so the court can rule may help both parties shape their cases for trial.²⁸

Time is the remedy that gives a pause its content. A pause helps only if the nonmovant can do something during it, and the rule names what: obtaining affidavits or declarations from people who know the facts, or taking discovery.²⁹ The discovery rules already supply the tools, depositions and interrogatories among them, and a showing under Rule 56(d) buys the time to use them. An admission that the nonmovant does not yet know whether the facts are disputed cannot defeat the motion, but it can buy time in which to find out.³⁰ The residual category, any other appropriate order, lets the court tailor relief to the gap, for instance by directing the movant to produce identified records.³¹

The relief is real in the courts of appeals. In Littlejohn v. Shell Oil Co., a court of appeals vacated a summary judgment so that additional discovery could be taken. But relief depends on a request, because there appears to be a trend toward granting judgment before discovery is complete when the nonmovant never formally asks for the extension.³²

The relief has two limits, and each follows from what extra time is for. Time helps only when something can be found with it. The first limit arises when the contested issue is the movant's own state of mind. A determination that rests on the state of mind or motive of the actor ultimately turns on that person's credibility about what was in his mind at a given time. A court will not weigh credibility itself, since that is the jury's role, but it denies summary judgment when it has reason to believe that credibility may be determinative.³³ Deferral would leave the same question unanswered, so the motion is denied outright. How readily courts accept this argument varies from system to system and even from judge to judge, depending in part on their concern that summary judgment not impinge on jury trial rights. Some states give express discretion to deny the motion when the only proof of a material fact is an affidavit from the sole witness to that fact.³⁴

Slaven shows the other side of that line. The court rejected her plan to prove the city's knowledge by cross-examining the officers and, when they denied it, establishing the affirmative.³⁵ The key to her situation was the substantive standard, which reached what the jailors had reason to know and not only what they admitted knowing. That standard defined what she had to find, and the discovery rules gave her the means to look. The two approaches fit together once you ask where the missing fact lives. If the element can be proved from sources discovery can reach, the nonmovant must use the time to reach them. If the element is nothing but the movant's actual purpose, and the court follows the credibility approach, the movant's own credibility is the issue.

The second limit arises when the nonmovant has already had its chance. Relief under the rule goes to a nonmoving party that has not had an opportunity to make full discovery.³⁶ A nonmovant that has had that opportunity, has searched, and has found nothing has no missing fact to name and no reason to give why more time would help. Its only argument is that a jury might disbelieve the movant's witnesses, and the burden already rests on it to produce outside evidence.³⁷

Hypothetical Illustration

A franchisee sues a franchisor for ending its franchise, and the governing law makes the franchisor's actual reason for the termination decisive. The franchisor moves for summary judgment on an executive's affidavit swearing that a sales shortfall was the only reason. The franchisee has deposed the executive and obtained the termination file, and nothing in the paper record speaks to why the executive acted. The only source on the executive's purpose is the executive. A court that follows the credibility approach denies the motion, because the question is what was in the executive's mind, which the factfinder must weigh.

Now change the facts. A buyer sues a freight company, alleging that a pallet of machine parts was never delivered. The company moves for summary judgment with a signed delivery receipt and the dock supervisor's affidavit. The buyer has deposed the supervisor and the driver and has received the tracking data and the dock logs, and nothing contradicts the receipt. The buyer asks for more time, saying only that a jury might not believe the supervisor. The court grants the motion. Delivery is an external event recorded in documents and perceived by witnesses, the search has been made, and a hope of impeachment at trial is not evidence.

The franchisee and the buyer have both finished discovery, and neither has produced a contradicting document, yet they end in opposite places because of where the missing fact lives. The franchisee's fact exists only in the movant's head, so no search could have reached it. The buyer's fact is an event the documents and witnesses could have shown, so the silence of the search is an answer. An exam stem that says discovery is open and the nonmovant needs more time therefore calls for three checks: what the declaration specified, how much opportunity the nonmovant has already had, and whether the missing fact lies in reachable files and witnesses or in the movant's own state of mind.

Exam Analysis Steps

Because the court's choice depends on what the nonmovant is missing and whether time can supply it, the response is best diagnosed in order. The steps are these:

Confirm that the nonmovant made the sworn, specific showing, since without it the court need not offer any of the responses.
Locate the missing facts, asking whether they sit in documents or with witnesses that discovery can reach or in the movant's own state of mind.
If the facts are reachable, match the response to the gap: defer or deny the motion when it is premature, allow a defined period for affidavits or discovery, or enter a tailored order such as one directing production of identified records.
If the issue rests on the movant's state of mind and credibility may be determinative, deny the motion, and check the jurisdiction's approach, since courts vary.
If the nonmovant has already had the opportunity for full discovery and found nothing, expect the motion to be granted, because the hope that a jury will disbelieve the movant's witnesses is not evidence.