Burdens on the Motion

Rule 56 puts the work of the motion on the party who files it. The court shall grant summary judgment if the movant shows that no genuine dispute exists as to any material fact and that the movant is entitled to judgment as a matter of law.¹ The movant may make that showing by citing particular parts of the record, including depositions, documents, affidavits or declarations, stipulations, admissions, and interrogatory answers,² or by 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 How much a given movant must bring to the court depends on who would carry the burden of proof at trial.

Two duties travel under the name “burden of proof,” and summary judgment opinions move between them without warning. The burden of proof at trial, also called the burden of persuasion, rests on the party who must prove an element of its claim or defense.⁴ The burden of production on the motion is the duty to come forward with evidence at a given stage, and it passes between the parties as the motion unfolds. What each party must produce depends on the trial burden: in Celotex Corp. v. Catrett, every member of the Court conditioned the burden of production on the burden of proof the movant would bear at trial.⁵ The trial standard of proof also governs how the court reads the evidence, so a claim that requires clear and convincing proof is tested against that standard when the court asks whether a genuine dispute exists.⁶

The motion earns its place because the main purpose of a trial is to resolve factual disputes, a task that a jury usually performs in actions at law. If the court can determine that no genuine dispute exists, a trial would be pointless, and the court may apply the law to the facts without a jury.⁷ The motion's chief aim is to avoid useless trials while reaching a final determination on the merits.⁸ The burden rules decide when the court can make that determination on paper. The sections below take up the movant who would carry the burden at trial, then the movant who would not (and who may disprove an element or show that the record lacks evidence of it), and last the party who opposes the motion.

Movant With the Trial Burden

A movant who would bear the burden of proof at trial on a claim or defense must present undisputed facts supporting each and every element of it.⁹ A plaintiff moving on its own claim is one example, and a defendant moving on an affirmative defense is another, because a party who moves for summary judgment on its own claim or defense must establish each element as a matter of law.¹⁰ This is a proof-of-the-elements motion.¹¹

The rule follows from what the movant would have to do at the trial it hopes to avoid. A party who must prove every element loses if it leaves one unproved, so it cannot win early on less than it would need to prove later.

Sophie's strict product liability claims against United Fibreboard show the demand. If Sophie moves for summary judgment, she must establish the material facts behind each element: United's manufacture of the product to which the deceased was exposed, proximate causation, product defect, and damages.¹² Suppose her papers establish manufacture and damages and say nothing about defect or causation. The motion fails, and it fails whether or not United responds, because only an affirmative showing on every element shifts the burden of production to the opponent.¹³

A defendant faces the same demand when it moves on a defense it must prove. Suppose the city in Slaven v. City of Salem had pleaded that the statute of limitations barred the plaintiff's action. To prove that defense at trial, the city would have to show when Slaven knew or should have known the facts giving her a claim, the length of the limitations period, and the date the complaint was filed (or served, depending on how the statute is tolled). It would carry the same burden on a summary judgment motion based on the defense.¹⁴

The yardstick comes from the directed verdict. The movant must support its motion with credible evidence, drawn from any of the materials Rule 56(c) specifies, that would entitle it to a directed verdict if no one controverted it at trial.¹⁵ A directed verdict is a ruling in which the trial judge takes the case from the jury because the evidence will support only one result, and its modern federal form is judgment as a matter of law.¹⁶ The test asks the court to imagine the opponent adding nothing at trial and then to decide whether the movant's own evidence would compel a verdict. That picture explains why the evidence must reach every element: an element left unaddressed is one that a jury could still find against the movant.

Once the movant makes that showing, the burden of production shifts. The opponent must either produce evidentiary materials demonstrating a genuine issue for trial or submit an affidavit requesting additional time for discovery.¹⁷ If the opponent introduces no outside evidence, the court takes the movant's evidence as true, and in most cases grants the motion.¹⁸

A movant that relies on witnesses invites one familiar reply: a jury might not believe them. Federal courts generally hold that an unsupported allegation that credibility is in dispute does not defeat the motion.¹⁹ The opponent must introduce facts showing why a witness's credibility is in question. That typically means evidence that the witness is not disinterested, as a party is not, or that the issue turns on the actor's state of mind or motive, so that the answer depends on that person's credibility about what was in his mind at a given time.²⁰ The court does not weigh credibility itself, because that is the jury's role. It asks only whether credibility may be determinative, and if it may, the court denies the motion.²¹

The seller's two replies differ in what they put before the court. That a jury might disbelieve a witness is true in every case, while the affiant's status as the plaintiff is a fact about this witness.

Disproving an Element

A movant who would not bear the burden of proof at trial, typically a defendant, has two alternatives.²³ It may present undisputed facts negating an essential element of the opponent's claim, which means proving that the element does not exist; this is a disproof-of-an-element motion.²⁴ Or it may demonstrate that the record contains no evidence by which the opponent could establish the element, the subject of the next subsection.²⁵ A disproof motion rests on materials Rule 56(c)(1)(A) lists, such as affidavits, depositions, and documents, and it must still satisfy Rule 56(a) by showing that no genuine dispute exists and that the movant is entitled to judgment.²⁶

Disproof succeeds because a claim fails when any essential element fails. The defendant needs to defeat only one element, while a party moving on its own claim must establish every one.²⁷ Which elements are essential is a question of substantive law. A city that moves to disprove an element of a plaintiff's tort claim must look to the tort law governing the claim to learn what the plaintiff has to prove.²⁸

Slaven v. City of Salem shows the technique. After her brother, a prisoner, died, the plaintiff sued the city, alleging that it “knew or had reason to know from observations of the prisoner that he was a suicidal risk.” The city moved for summary judgment with affidavits from the police officers, each of whom averred to facts within his personal knowledge showing that none of them knew, or should have known, that the prisoner was suicidal.²⁹ The affidavits had the form Rule 56(c)(4) requires of an affidavit used to support a motion: made on personal knowledge, setting out facts that would be admissible in evidence, and showing that the affiant is competent to testify on the matters stated.³⁰ They therefore did what disproof requires. They placed admissible testimony from the people who held the information before the court, and they aimed it at the element that decided the claim.

The affidavits shifted the work to the plaintiff. To avoid summary judgment she had to allege specific facts establishing a genuine, triable issue, and she alleged none that contested the affiants' assertions.³¹ She argued that she could prove the city's knowledge by cross-examining the officers at trial. The court rejected that argument: a party opposing the motion must indicate that she can produce the requisite quantum of evidence to reach the jury.³² Her deposition testimony that her brother wore a belt did create a dispute, but not a material one, because the belt could not help establish negligence without a preliminary finding that the city knew or should have known that he was a suicidal risk.³³ By negating the knowledge element, the city made that dispute irrelevant to the outcome.

Disproof asks the movant to prove that something does not exist, and the movant needs witnesses or documents that can speak to the point. The Slaven officers could swear to what each of them knew. A movant that cannot reach such witnesses will find this alternative costly, and it may prefer the second, which requires no affidavits negating the opponent's claim.³⁴

Absence of Evidence

The second alternative for a movant who would not carry the trial burden is to show that the record contains no evidence from which the opponent could establish an essential element of its claim.³⁸ Rule 56(c)(1)(B) supplies the textual basis, because it lets a party support a factual position by showing that an adverse party cannot produce admissible evidence to support the fact.³⁹ The leading decision is Celotex Corp. v. Catrett, which holds that the plain language of Rule 56(c) mandates summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish an element essential to that party's case and on which that party will bear the burden of proof at trial.⁴⁰ This subsection asks what a movant must actually bring to the court on this route, and where Celotex stops.

Mrs. Catrett sued fifteen corporations that made or distributed asbestos products, alleging that her husband's death resulted from his exposure to them. Celotex moved for summary judgment on the ground that she had failed to produce evidence that any Celotex product proximately caused the injury. It pointed in particular to her interrogatory answers, which, in response to questions asking for exactly this information, identified no witness who could testify about her husband's exposure to Celotex's products.⁴¹

The court of appeals' majority held that the motion was “fatally defective” because Celotex “made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion.” It read Rule 56(e) and Adickes v. S.H. Kress & Co. to mean that the party opposing the motion 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, and it therefore declined to consider Celotex's argument that none of the evidence the plaintiff produced would have been admissible at trial.⁴²

The Supreme Court found no such requirement in the rule. A movant always bears the initial responsibility of informing the district court of the basis for its motion and identifying the portions of the record that it believes demonstrate the absence of a genuine issue of material fact. But Rule 56(c) refers to “the affidavits, if any,” and the Court found no express or implied requirement that the movant support its motion with affidavits or similar materials negating the opponent's claim.⁴³ Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the movant may rely solely on the pleadings, depositions, answers to interrogatories, and admissions on file, and the nonmovant must then go beyond the pleadings and designate specific facts showing a genuine issue for trial.⁴⁴

The court of appeals had leaned on language in Adickes. The Court answered that the language does not mean that the movant must produce evidence showing the absence of a genuine issue of material fact, even on an issue on which the nonmovant bears the burden of proof. The movant may instead discharge its burden by “showing,” that is, pointing out to the district court, that there is an absence of evidence to support the nonmoving party's case.⁴⁵ Taken together, the separate opinions rejected the holding of Adickes that summary judgment is available only on a movant's conclusive proof that the nonmovant cannot prevail at trial. A defendant may shift the burden of production with something less than a showing that under no circumstances could the plaintiff prevail.⁴⁶

Two features of the doctrine explain why it works. First, a complete failure of proof on an essential element necessarily renders all other facts immaterial, so no genuine issue of material fact remains.⁴⁷ Second, the standard for summary judgment mirrors the standard for a directed verdict, so a plaintiff who would lack enough evidence to survive a directed verdict at trial can be screened out after discovery and before trial.⁴⁸

The phrase “after adequate time for discovery” protects the opponent from a motion filed before it could gather proof. A premature motion can be handled under Rule 56(f), now Rule 56(d), which allows the court to deny the motion, or to continue the hearing on it, if the nonmoving party has not had an opportunity to make full discovery.⁴⁹

Justice White's concurrence marks the limits of the holding. He agreed that a movant may rely on depositions, answers to interrogatories, and the like to show that the plaintiff has no evidence, but he insisted that the movant discharge the burden the rules place on it: it is not enough to move for summary judgment without supporting the motion in any way, or with a conclusory assertion that the plaintiff has no evidence.⁵⁰ He noted that Celotex did not dispute that, if the plaintiff had named a witness to support her claim, summary judgment should not be granted without Celotex somehow showing that the named witness's possible testimony raises no genuine issue of material fact. Celotex asserted that the plaintiff had failed on request to produce any basis for her case, and the plaintiff insisted that she had revealed enough to defeat the motion.⁵¹

The Supreme Court did not settle that disagreement. The court of appeals had declined to address the adequacy of the plaintiff's showing in opposition,⁵² or whether that showing, if reduced to admissible evidence, would carry her burden of proof at trial.⁵³ The Supreme Court, thinking the court of appeals better suited to make those determinations in the first instance, left them there.⁵⁴

Hypothetical Illustration

A tenant sues a landlord for carbon monoxide poisoning and must prove that the landlord had notice of the faulty furnace. Eighteen months into the case, the landlord moves for summary judgment in a single sentence stating that the tenant has no evidence of notice. The tenant's interrogatory answers, which the landlord has held for a year, name the building superintendent as the person who received her written complaint, and the landlord has neither deposed him nor addressed his account. The court denies the motion, because the record contains a named witness and a movant who rests on the absence of evidence must deal with the evidence the record does contain.⁵⁵ Suppose instead that the landlord's motion, filed after discovery closed, set out interrogatory answers identifying no one who was told about the furnace and deposition excerpts in which the tenant admitted that she never complained. That motion shows an absence of evidence on the element, and the tenant would have to designate specific facts showing a genuine dispute.⁵⁶

The opinions together leave the movant's burden between two poles: it is lighter than conclusive proof that the opponent cannot win, and heavier than a bare announcement that the opponent has nothing. Exactly what more the movant must show remains a bit unclear.⁵⁷ Once the movant makes the showing, the burden of production passes to the nonmovant, who must introduce evidence from outside the pleadings.⁵⁸ Two errors follow from misreading the cases: assuming that a movant must always file affidavits disproving the claim, and assuming that the words “no evidence” suffice without pointing to the record.

The route also belongs to a particular movant. A movant-defendant may point out the absence of evidence on an essential element of the plaintiff's claim, after which the burden shifts to the plaintiff to produce evidence raising a genuine fact issue, but a party moving on its own claim or defense must establish each element as a matter of law.⁵⁹ A missing item of proof can end a claim only for the party who needs it, which is why the route works only on an element the opponent must prove at trial.

Exam Analysis Steps

This route works only when the opponent carries the burden at trial and the record has had time to develop, so a court tests the movant's papers in sequence. The steps are these:

Identify which party would bear the burden of proof at trial on the element at issue, since the absence-of-evidence route is open only to a movant whose opponent bears that burden.
Confirm that the nonmovant has had adequate time for discovery on the element, because a premature motion is answered with a request for more time.
Find the parts of the record, such as interrogatory answers, depositions, and admissions, that the motion identifies as showing nothing supports the element, and make sure the motion does more than assert that no evidence exists.
Search the record for evidence the nonmovant has named or produced on the element, such as a witness, and ask whether the motion explains why that evidence is inadequate.
If the motion passes those checks, require the nonmovant to designate specific facts showing a genuine dispute on the element, and grant the motion if it cannot.

Opposing the Motion

The opposing party's duty depends on what the movant has shown, and it takes the form of evidence. Rule 56 lets a party support or dispute a fact by citing materials in the record, and it lets the other side object that the cited material cannot be presented in a form that would be admissible.⁶² This section follows the opponent in the order events unfold: when the duty begins, what the response must contain, what falls short, and how the court measures the response.

The duty to produce arises second. A movant who carries the trial burden must first make an affirmative showing, and that showing shifts the burden of production to the opponent.⁶³ A movant whose papers show that no genuine dispute exists likewise shifts the burden to the opponent to introduce outside evidence rebutting that conclusion, and if the opponent introduces none, the court takes the movant's evidence as true and in most cases grants the motion.⁶⁴ A movant whose own showing falls short places nothing on the opponent, because the rule directs summary judgment on the movant's showing that no genuine dispute exists and that it is entitled to judgment.⁶⁵

Burden shifting turns summary judgment into a pretrial filter akin to the directed verdict at trial: if the plaintiff will not have enough evidence to survive a directed verdict, the court can find that out after discovery and before trial.⁶⁶ The approach also lets the motion pierce the pleadings and allows the court to assess the sufficiency of the evidence.⁶⁷ The motion previews, usually in documentary form, the evidence the parties would offer at trial, and the court asks, in Judge Posner's words about jury cases, “whether the state of the evidence is such that, if the case were tried tomorrow, the [non-moving party] would have a fair chance of obtaining a verdict.”⁶⁸

A response that rests on the pleadings fails. Celotex, reading the rule then in force, required the nonmoving party to go beyond the pleadings and, by affidavits or by depositions, answers to interrogatories, and admissions on file, to designate “specific facts showing that there is a genuine issue for trial.”⁶⁹ The Massachusetts rule applied in Slaven says much the same: an adverse party “may not rest upon the mere allegations or denials of his pleading,” and must set forth specific facts, or summary judgment, if appropriate, shall be entered against him.⁷⁰ Rule 56(c)(1)(A) lists the materials a party may cite, and a party's own pleading is not among them.⁷¹ The opponent must show admissible evidence that could persuade a reasonable jury to find for it on the disputed issue.⁷²

The opponent need not resolve the dispute conclusively in its favor. Anderson v. Liberty Lobby, Inc., discussing First National Bank of Arizona v. Cities Service Co., says that all that is required is sufficient evidence supporting the claimed factual dispute to require a jury or judge to resolve the parties' differing versions of the truth at trial.⁷³ But a plaintiff who relies on allegations of conspiracy cannot reach a jury without “any significant probative evidence tending to support the complaint.”⁷⁴ Evidence that is merely colorable, or not significantly probative, does not require a trial, and summary judgment may be granted despite it.⁷⁵

Doubt without evidence fares no better. In Matsushita Electric Industrial Co. v. Zenith Radio Corp., the Court said that a nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” The abstract possibility that the movant's witnesses are mistaken, or that a trial might turn up something, points to no fact that a jury could weigh for the nonmovant.

Several familiar responses fail for the same reason, since each offers something other than evidence of a present fact:

The allegations or denials of the party's own pleading.⁷⁶
A promise that evidence will turn up at trial, since the motion asks what the evidence would show if the case were tried tomorrow.⁷⁷
The hope of drawing the missing fact out of the movant's witnesses on cross-examination at trial.⁷⁸
A conclusion with no stated basis, such as an affidavit that an accident would probably not have occurred without the driver's failure to stop, from a passenger who concedes that amnesia leaves her unable to say whether he stopped.⁷⁹
A bare assertion that the movant's witnesses might not be believed.⁸⁰

The Slaven plaintiff fell into the first and third categories. She had the allegation in her complaint and a plan for cross-examining the officers at trial, and the court held that neither showed that she could produce the quantum of evidence needed to reach the jury.⁸¹

The Slaven plaintiff and Ortega each faced a movant with sworn denials, and the records they built explain the different results. The Slaven plaintiff had a pleading and a plan for trial. Ortega put in the record facts that she perceived and could repeat from the stand, in the form Rule 56(c)(4) requires of an affidavit used to oppose a motion.⁸³

When the movant attacks the response, the opponent has several answers. The movant may argue that the cited materials do not establish a dispute, or it may object that the cited material cannot be presented in a form that would be admissible in evidence.⁸⁴ The opponent meets the objection by showing that the material can be presented in admissible form, for example through an affidavit or declaration made on personal knowledge, setting out facts that would be admissible, and showing that the affiant is competent to testify on the matters stated.⁸⁵ Where the first showing was thin, an affidavit of that kind also supplies new evidence.

When the needed facts exist but the opponent cannot yet present them, it may meet its responsive burden by showing why it cannot present evidence in opposition at that time. If the court finds the reasons valid, it may deny or postpone summary judgment.⁸⁶ The showing takes the form of an affidavit. Slaven explains that a party unable to present facts essential to her opposition must file an affidavit stating the reasons for her inability, and that she must use that route when the necessary facts or evidence are possessed or controlled by the moving party.⁸⁷ The request is the opponent's alternative to producing evidence, and the opponent must actually make it.⁸⁸

The court judges the opponent's showing against the standard of proof that will govern at trial. In a libel suit requiring proof of actual malice, the defendant prevails on summary judgment unless there is sufficient evidence to establish a genuine dispute about a material fact under the clear and convincing evidence standard, rather than the more general preponderance standard.⁸⁹ The same affidavit can therefore defeat a motion on one claim and fall short on another.

When the opponent's materials do show a genuine dispute, the motion fails. The main purpose of a trial is to resolve factual disputes between the parties, and a genuine dispute leaves that task undone.⁹⁰ A motion that fails still serves a purpose, because the exchange of information needed to rule on it may help both parties shape their cases for trial.⁹¹

Exam Analysis Steps

Because each stage of the opponent's task depends on the one before it, the analysis runs in sequence, beginning with the movant's papers. The steps are these:

Decide whether the movant's own materials, taken as true, appear to show that no genuine dispute exists on the fact in issue, since the opponent has no duty to respond to a motion that does not.
Identify the element and the specific facts the movant has put in issue, along with the standard of proof that will govern that element at trial.
Look in the opponent's response for specific facts drawn from admissible record materials, such as affidavits on personal knowledge, deposition testimony, and documents, rather than pleading allegations, promises, or conclusions.
Ask whether those facts would allow a reasonable jury, applying the trial standard of proof, to find for the opponent.
If the opponent offers no such facts but shows by affidavit why it cannot yet present them, consider denying or deferring the motion under Rule 56(d).

Of the five steps, the first does the work that students most often skip. The opponent's duty is conditional, so an analysis that begins by asking whether the opponent produced enough skips the prior question: do the movant's own papers appear to show that no dispute exists? A motion built on thin affidavits fails at that step whatever the opponent does. A motion that clears it puts the weight of the case on the opponent's record, and the plaintiff's record in Slaven held no contrary facts.