The Summary Judgment Standard

Rule 56(a) gives every summary judgment motion the same test: the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."¹ The movant must make both showings, and once it does, "shall" directs the court to grant the motion. The rule also tells the court to state its reasons on the record, whether it grants or denies.²

The test follows from what a trial is for. A trial exists mainly to resolve factual disputes between the parties, usually before a jury. When the court can determine that no genuine dispute exists as to any material fact, a jury has nothing left to resolve, a trial would be pointless, and the court can apply the law to the facts itself.³ That reasoning is why Rule 56 looks beyond the pleadings. Under older practice a challenge was decided on the face of the pleadings, which courts presumed were made in good faith, so any pleading sufficient in law forced a trial. When the facts underlying a dispute can be established conclusively without trial, proceeding as if they were disputed wastes the court's time.⁴

The device's main purpose is to avoid useless trials while still reaching a final determination on the merits.⁵ Settlement by contract and arbitration also end disputes without a court trial, but both depend on the parties' agreement;⁶ summary judgment needs only one party's motion and the court's ruling.

The standard that governs that ruling has two parts, and its qualifiers do separate work. A dispute is genuine when the evidence presents a real conflict that a fact-finder would have to resolve, and a fact is material when it matters to the outcome under the governing law. The second part asks whether that law, applied to the settled facts, entitles the movant to judgment. Taken together, the parts ask whether the evidence is legally insufficient to support a verdict for the opposing party.⁷

Because the motion seeks judgment "as a matter of law," the analysis starts with the law. The substantive law governing the claim or defense identifies which facts are material, so a student who cannot state that law cannot work the motion.⁸ The steps below put each question after the answer it depends on.

The sections below follow the order of Rule 56(a)'s wording instead: genuine dispute, material fact, entitlement to judgment. A reader who meets materiality second should still apply it first, because there is no point testing the evidence on a fact that cannot change the result.

No Genuine Dispute

Rule 56(a) bars summary judgment only when a genuine dispute exists, and Anderson v. Liberty Lobby, Inc. defines the word. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.⁹ The test asks what a jury could do with the record, and it does not ask which side the judge thinks is right.

The judge therefore decides only whether the case needs a trial, and makes no findings of fact. The question is whether genuine factual issues exist that only a finder of fact can resolve, because they may reasonably be resolved in favor of either party.¹⁰

A scintilla of evidence does not meet the test. Courts once held that a scintilla supporting the party with the burden of proof obliged the judge to leave the case to the jury; the better rule asks whether the record holds evidence on which a jury could properly find a verdict for that party.¹¹ As the Court put it, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff."¹²

The standard mirrors the one for a directed verdict under Rule 50(a). The court must direct a verdict if, under the governing law, there can be only one reasonable conclusion, and it may not if reasonable minds could differ about the import of the evidence.¹³ The inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law.¹⁴ Only the timing differs, since summary judgment asks the question before trial and a directed verdict asks it during trial.

In practice the question reaches the nonmovant through burden shifting. When the movant's papers show that no genuine dispute exists, the burden shifts to the opposing party to introduce outside evidence rebutting that showing, and if the opponent introduces none, the movant's evidence is taken as true and summary judgment usually follows.¹⁵ The evidence that counts must be admissible, because Rule 56 exists to avoid unnecessary trials and could not do so if courts considered evidence that could never be admitted at trial.¹⁶

The two examples turn on one difference. Dana has sworn testimony on the disputed fact and Passenger has only an allegation, so a reasonable jury could find for Dana but could not find for Passenger.

The court also reads the record generously for the nonmovant. It believes the nonmovant's evidence and draws justifiable inferences in the nonmovant's favor. A movant's evidence is taken as true only when the opponent offers nothing to contradict it.²⁰ Tolan v. Cotton shows the rule at work. A police sergeant shot Robert Tolan on his parents' front porch, and the courts below granted the sergeant summary judgment on a qualified immunity defense. The court of appeals described the porch as dimly lit, Tolan's mother as agitated, and Tolan as shouting, yet the record held contrary testimony on each point, including testimony that floodlights lit the scene and that Tolan was not screaming. The Supreme Court held that by failing to credit that evidence the court of appeals had weighed the evidence and resolved disputes in favor of the moving party, and it vacated the decision.

Tolan arose on a qualified immunity defense, but it applied a rule that governs every motion under Rule 56. A court that adopts the movant's version of a contested fact has decided the dispute while calling it settled, and the nonmovant loses a jury trial without anyone having announced a finding. The D.C. Circuit has applied the same rule to a nonmovant's own uncorroborated testimony in Robinson v. Pezzat: the lack of corroboration goes to credibility, and credibility is for the jury.

Credibility produces the hardest cases, because a movant's proof often comes from witnesses a jury might doubt. The court will not weigh or assess any witness's credibility, since that is the jury's role. It decides only whether there is reason to believe that credibility may be determinative, and if so, it denies the motion.²¹ A bare assertion that a jury might not believe the movant's witness gives the court no such reason. The opponent needs something concrete, such as evidence about the witness's motive or state of mind.

The last variable is the standard of proof that governs at trial, because what a reasonable jury could find depends on how much proof the law requires. In Anderson, a defamation case, the Court held that what counts as sufficient evidence to present a genuine issue is conditioned by the evidentiary burdens the parties carry at trial and by the nature of the claim.²² In an ordinary civil case the judge asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.²³ Where the plaintiff must prove actual malice by clear and convincing evidence, as Anderson's libel plaintiff did, the burden is heavier, and the same evidence that sends a negligence claim to the jury can fall short, because a jury required to be convinced to that degree cannot reasonably reach that conclusion on a thin record.

Material Facts

A genuine dispute stops summary judgment only if it concerns a material fact. Anderson placed the test in the governing law. The Court explained that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment," and that "[f]actual disputes that are irrelevant or unnecessary will not be counted."²⁵ A movant can therefore win despite a real conflict about what happened, if the conflict cannot change the result.

Only the substantive law can say which facts those are. A claim or defense is a set of elements, and materiality sorts factual disputes by how they relate to those elements.²⁶ A fact is material when resolving it one way rather than the other could change the result on an element. To test a disputed fact, resolve it each way and ask whether the court's conclusion on any element changes; if both answers lead to the same judgment, a trial to choose between them would decide nothing.

Materiality is also separate from genuineness. It does not evaluate the evidence behind a dispute, and any heightened proof requirement that the substantive law imposes belongs to the genuineness inquiry instead.²⁷

Slaven v. City of Salem shows the two screens at work. A prisoner died by suicide in custody, and his sister sued the city, arguing that it negligently caused his death.²⁸ On her theory, the city had a duty to take away his belt only if it knew or should have known of his suicidal tendencies; if it neither knew nor should have known, it had no such duty.²⁹

The city's affidavits denied that anyone knew or should have known he was suicidal. The sister offered no facts contesting them, and she argued instead that she could prove the city's knowledge at trial by cross-examining the officers and then, once they denied it, establishing the affirmative. The court rejected that argument: a plaintiff must show that she can produce the evidence needed to reach the jury.³⁰

The record did disagree about whether the prisoner wore a belt when arrested, but the court held that dispute immaterial, because the belt could not help establish negligence without a preliminary finding that the city knew or should have known he was a suicide risk.³¹ The belt dispute was real and immaterial; the knowledge question was material and not genuinely disputed. On either version of the belt, the city wins. Under a regulation like the one in Dezort v. Village of Hinsdale, which required the jailor to take the belt before confinement, the same fact would have mattered.³²

A dispute about what the law is differs from a dispute about what happened. Rule 56 turns on genuine disputes of material fact and on entitlement to judgment as a matter of law, and applying the law is the court's job.³⁴ Suppose the lower courts have split on whether a jailor owes a custodial duty of care, and the plaintiff argues that the split itself requires a trial. A trial would add nothing, because no testimony can show what the governing rule is. The Slaven court, which had never addressed what duty prison officials owe a person in their custody, resolved the question and adopted the Restatement standard instead of sending the case to a jury.³⁵

One narrow exception exists. A judge occasionally denies summary judgment and sends the parties to trial because a fuller record may clarify the correct legal analysis, and the Supreme Court approved that deferral in Kennedy v. Silas Mason Co. It reasoned that good judicial administration favors withholding decision on the ultimate questions until a record gives a more solid basis for it, because a ruling on the present record might later prove to lack the thoroughness that judgment on so important a question should have.³⁶ The exception depends on what a fuller record would add. The difficulty of a legal question, by itself, does not qualify.

Entitlement to Judgment

Rule 56(a) joins two requirements with the word "and": the movant must show that no genuine dispute exists as to any material fact, and it must also show that it "is entitled to judgment as a matter of law."³⁸ The first requirement concerns what the record shows, and the second concerns what the law makes of it. A movant can satisfy the first and still lose on the second.

The second requirement exists because agreement about the facts removes only the jury's role as fact-finder. Applying the law to settled facts is the court's task,³⁹ and the court must still confirm that the law attaches the movant's claimed consequence to those facts. Summary judgment thus tests the legal sufficiency of a party's position on established facts, where a pleading motion tests only the allegations.⁴⁰

A lawsuit in which the parties never disagree about what happened shows the second requirement most clearly. Berlin sues Porter for malicious prosecution, alleging that Porter brought a criminal action against him without probable cause or proper purpose and that it ended in his favor. Porter knows that the criminal case was "continued without a finding" rather than dismissed, and if that disposition is not "favorable termination," Berlin cannot win.⁴¹ The parties agree on the history and disagree about what it means, so Porter moves for summary judgment on evidence of the continuance. Berlin admits the continuance, offers nothing contrary, and argues that it satisfies the element. The motion presents a single legal question. If a continuance suffices, the court denies the motion and the case proceeds; if it does not, Porter is entitled to judgment as a matter of law.⁴² Parties in this position often stipulate to the facts and file cross-motions, each arguing that the law entitles it to judgment.⁴³

Berlin can also defeat the motion on the facts. If he submitted evidence that two charges were pending and the one he relies on was dismissed, or that the continuance only postponed a hearing and the case was dismissed afterward, he would show a genuine dispute of material fact about whether the earlier proceeding ended in his favor.⁴⁴ The judge would then deny the motion without answering the legal question, and a jury would resolve the fact. One motion can fail on either ground. In the legal version the judge has answered the question against the movant and no dispute remains to be tried, and in the factual version the judge has answered nothing and the dispute goes to the jury.

Negligence tests this requirement at its most delicate. If a jury had to decide every negligence question, a plaintiff's motion on negligence would always fail. But some cases permit the answer "as a matter of law," because a reasonable jury could not differ, and the court must decide whether the case before it is one of them.⁴⁵ Two undisputed fact patterns fall on opposite sides of that line. Suppose discovery shows no dispute that the defendant, driving drunk and blindfolded down Main Street, struck the plaintiff. The only question is whether a jury could legitimately find the defendant not negligent, and the plaintiff would in all probability be granted summary judgment.⁴⁶

Now suppose a truck owned by C Corp. and driven by its employee E strikes a pedestrian, P. It is undisputed that P was crossing with the light and that the truck's brakes failed, and P moves for summary judgment against C Corp. on negligence. The motion should be denied. Brake failure does not by itself prove negligence, because such failures sometimes happen without anyone's fault, and even evidence from E's deposition that C Corp. maintained the truck poorly would leave open whether E was acting within the scope of his employment.⁴⁷ The difference lies in how much room remains for reasonable disagreement. No reasonable jury could call driving blindfolded and drunk careful, so nothing is left for a jury to decide. An innocent mechanical cause leaves room to disagree about carelessness, and that room is what a jury is for.

A rule of law can also turn uncontradicted evidence into a judgment. A plaintiff claims that a drug caused her injury but offers no expert testimony on causation, while the defendant submits affidavits from five scientists describing two dozen studies that found no association between the drug and the injury. The plaintiff must show that causation is more probable than not, and all the evidence points the other way, so the court would presumably grant summary judgment for the defendant. The court does not prefer the scientists to the plaintiff; nothing in the record contradicts them. If the parties' documents included conflicting evidence on causation, the court would deny the motion and require a trial on the facts.⁴⁸

The rule's direction to state reasons on the record matters most here, because a denial can mean two different things.⁴⁹ A ruling that a continuance suffices as favorable termination, or that a jury could find carelessness behind a brake failure, tells the parties and a reviewing court that the law does not compel the result. A ruling that the record holds conflicting evidence on a material fact tells them that a trial must resolve the fact.