May 2008

FJC Weighs Changes to Summary Judgment Rule

By Thomas E. Zehnle, Litigation News Associate Editor

Moving parties in all federal courts may soon have to file a statement of uncontested material facts

The Federal Judicial Center has been examining the various approaches taken by federal district courts to summary judgment practice to assess the effect of proposed amendments to Rule 56 of the Federal Rules of Civil Procedure. The most significant of the proposed changes would provide that all districts must require the moving party to file, in separately numbered paragraphs, a statement of uncontested material facts that entitles that party to summary judgment.

Under the current proposal, “the drafting [of these separate statements] would require a concise statement of the key facts,” notes Jeffrey J. Greenbaum, Newark, NJ, who is a member of the Section of Litigation’s Federal Practice Task Force.

Greenbaum believes that, all too often, usually for tactical reasons, one side in civil litigation will file a motion for summary judgment that attempts to inundate the adversary with elaborate statements of fact. These factual statements—especially in those districts in which the non-moving party is required to address the statement on a fact-by-fact basis—require substantial time, effort, and money to answer, he says.

“The requirement causes lawyers to focus on whether they in fact have a legitimate basis to seek summary judgment, and by encouraging careful analysis of facts may avoid the preparation and filing of motions that should not succeed, resulting in a savings to clients and the preservation of scarce judicial resources,” says Sheldon M. Finkelstein, Newark, NJ, Codirector of the Section’s Division V (Substantive Areas of Litigation). The proposed rule “would also tend to reduce the number of motions that may be filed for tactical reasons.”

The commentary to the proposed amendment to Rule 56 makes clear that the intent of a separate statement is to identify only those facts that are critical to the case. Greenbaum notes that it would be inappropriate to include facts that have little or no relevance to the core issues.

Greenbaum is quick to acknowledge that some disagree with the proposal, but says the variations may have more to do with the status of one’s local practice than anything else. The Federal Judicial Center acknowledges that those districts where there is no requirement to file or respond to a separate statement will be most affected by the proposed amendment, and Greenbaum expects most of the resistance to the proposed changes will come from those districts.

According to the Federal Judicial Center, the federal district courts have generally adopted three different approaches to summary judgment practice. Local Civil Rule 56.1 of the U.S. District Court for the Southern District of New York, for example, is typical of the first approach. It provides that the moving party must attach “to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.” The respondent must answer each paragraph, and is permitted to submit additional numbered paragraphs asserting facts necessary to its opposition.

The second approach requires the moving party to submit a statement of undisputed facts, but does not require the non-moving party to specifically address each fact asserted by the movant. Under the third approach, by contrast, the moving party need not submit a statement of uncontested material facts. The Federal Judicial Center notes that this third approach may be because the district court has no local rule governing summary judgment practice, or because its existing rules do not specify the manner in which such motions are to be presented.

Litigants and courts in districts that currently follow the third approach stand to be most affected by the proposed change. Greenbaum, however, notes that the “local rules have taken over and we need a national rule to govern summary judgment practice.” Still, he understands that for those federal practitioners located in districts that take the third approach, they may well view a required fact-by-fact response to a movant’s fact-by-fact statement “as just make-work for lawyers and not really focusing the issues for the court to decide.”

The concern of these dissenters is exactly why the proposal requires statement of facts to be concise, says Greenbaum. Even in the most complex civil actions, the critical facts of the dispute can be condensed to a manageable amount, he adds.

Ultimately, the goal of the amendment is not to change the standards or burden of proof for summary judgment motions, but simply to have a consistent procedure that applies on a nationwide basis, Greenbaum says.

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