How To Respond to a Motion for Summary Judgment
| Background: | The defendant in your civil case moved for summary judgment (under Rule 56) |
| Problem: | You're unsure of how to put forth a well-formulated response |
| Solution: | You follow this guide for responding in opposition to the defendant's motion |
I. Definitions
II. Legal Citations
...
(c) PROCEDURES.
(B) showing 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.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
(c) Motion and Proceedings Thereon. The motion must state with particularity the grounds upon which it is based and the substantial matters of law to be argued and must specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies.
The movant must serve the motion at least 20 days before the time fixed for the hearing, and must also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court.
The adverse party must identify, by notice served pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or delivered, electronically filed, or sent by e-mail no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party must serve a copy on the movant pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or by delivery, electronic filing, or sending by e-mail no later than 5:00 p.m. 2 business days prior to the day of hearing.
The judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
III. Samples
| # | Comments | ₧ | |
|---|---|---|---|
| 1 |  | TBD case. USFLMD. Pro Se Filing. 2023. (Title VII/etc.). Filing Date. Wrong Case Number. |  |
| ...more samples coming soon... | |||
| hitting the like button will raise this on TBD's priority list | |||
| 2 | | DOAH. Attorney Filing. 2003. (School Administrators). Opportunity to be Heard. | |
IV. Templates
| # | Link | Comments | ₧ |
|---|---|---|---|
| 1 |  | Replace all of the placeholder tags with real information (eg "[plfName]" becomes "John Doe"). |  |
V. Application
Time to Respond
- Check the local rules of your court/tribunal in order to know when your responsive document will be due.
-
For Example: at USFLMD, you'll have 21 days to respond (see Local Rule 3.01)
- (calculate days via Rule 6 Fed. R. Civ. P.)
Scope/Purview
- According to Rule 56(c)(1)(A), your court's review will be bound by the entire record:
“particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or...” - Rule 56(c)(1)(A) Fed. R. Civ. P.
- Thus - in laymen's terms - everything goes
Legal Standard of Review
- Altogether, a methodical review of a Rule 56 motion for summary judgment encompasses the following 3-part test:
- Checking if the movant has satisfied its initial burden (of proving the non-existence of any competing evidence) [see "Part A" below];
- Checking if the nonmovant has satisfied its conditional burden (of supplying evidence to rebut the movant’s motion) [see "Part B" below]; and
- Construing all evidence/inferences in favor of the nonmovant [see "Part C" below]
- If either party fails to meet its burden then the Court must rule in favor of that party’s opponent.
Part A | Movant's Burden
- According to the courts, the movant has the burden of proving that there is an absence of rebuttable evidence:
“As this court and other appellate courts have repeatedly held, the burden of proving the absence of a genuine issue of material fact is upon the moving party.” - Holl v. Talcott, 191 So.2d 40 (Fla. 1966)
“Rather, as the Court confirms, a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record.” - Celotex v. Catrett, 477 U.S. 317 (1986)
- If the movant fails to meet this burden of proof, then the court must deny his/her motion:
“the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact.” - Celotex v. Catrett, 477 U.S. 317 (1986)
Part B | Nonmovant's Burden
- According to the courts, the nonmovant has a burden of production:
“Accordingly, the nonmoving party may defeat a motion for summary judgment that asserts that the nonmoving party has no evidence by calling the court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party.” - Celotex v. Catrett, 477 U.S. 317 (1986)
Part C | Cannot Weigh Evidence
- In the event the Court receives two competing sets of material fact, it cannot weigh the evidence:
“At the summary judgment stage, the trial judge's function is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” - Anderson v. Liberty Lobby, 477 U.S. 242 (1986)
- Instead, the Court has to allocate all presumptions in favor of the nonmovant; then rule accordingly:
“As explained above, at the summary judgment stage of the action, the court must construe all evidence and inferences in the light most favorable to the nonmoving party.” - Allen v. Tyson, 121 F.3d 642 (11th Cir. 1997)
VI. Quick Commentary
- Critical Note: File this document on time!
- Within 14 Days of the defendant's motion
- see Local Rule 3.01(c) USFLMD (21-day deadline at USFLMD)
- Within 14 Days of the defendant's motion
- Download as many sample documents as you'd like
- Model your language after the language that lawyers use
- Use the free-hand template (see Part IV - above) to write your Response
- Save the final version as a PDF file.
- File the final version in court
VII. Additional Notes
- Estimated Time ≈ 4-16 hours
VII. Additional Resources
- TBD's Interactive Reading List on Summary Judgment (Free; Earn Book Points!):
- Interactive Reading List (100+ Decisions)
- Law Reviews/Journals on Summary Judgment
- Federal Summary Judgment Doctrine: A Critical Analysis, 83 Yale L.J 745 (1974)
- Second Thoughts About Summary Judgment, 100 Yale L.J. 73, 76 (1990)
- Thoughts on Directed Verdicts and Summary Judgments, 45 U. Chi. L. Rev. 1977
- Rule 11d (FL, Broward County, Division 13)
VIII. Bibliography
X. Conclusion
...POINTS & THINGS...
Please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
