Failure to Support a Fact

Rule 56(e) tells the court what it may do when a party fails to properly support an assertion of fact, or fails to properly address another party’s assertion of fact, as Rule 56(c) requires.¹ The sentence covers two different failures. A party fails to support when it calls a fact disputed or undisputed and cites nothing to back the claim. A party fails to address when the other side has supported a fact and the party never answers it. Rule 56(c) supplies the measure of “properly.” A party must cite particular parts of the record—depositions, documents, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials—² or show that the materials the other side cited do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence for the fact.³ Paper that ignores Rule 56(c)’s admissibility requirements fails the test too. The opposing party may object that cited material cannot be presented in a form that would be admissible,⁴ and an affidavit or declaration must rest on personal knowledge, set out admissible facts, and show that the declarant is competent to testify.⁵

Rule 56(e) exists because the court need consider only the cited materials.⁶ A party who leaves a fact unsupported leaves the court nothing it must read, and a duty to cite that carried no consequence would be advisory. A rule that made every defect fatal would misfire as well. Rule 56(a) ties judgment to a substantive showing—no genuine dispute as to any material fact, and entitlement to judgment as a matter of law—and not to the neatness of the papers.⁷ A misplaced page reference should not end a claim that the evidence would have saved.

Rule 56(e) resolves the tension with a ladder of responses, each a power the court may use rather than a duty it must perform.⁸ From least to most consequential, the court may allow the party to repair the paper, treat the unsupported or unanswered fact as undisputed for the motion, grant judgment, or issue another order suited to the circumstances. The judge chooses the rung according to the kind of failure and what the record already shows. The sections below take the rungs in turn, beginning with the one that keeps a drafting error from deciding the motion.

Opportunity to Cure

The mildest response is an invitation to fix the paper: the court may “give an opportunity to properly support or address the fact.”⁹ The word may makes the option the judge’s, and a party with a defective filing cannot demand a second chance. The provision sets no deadline, so the court decides how much time to allow. Either side can use the option, because the rule’s trigger is the failure of “a party”:¹⁰ the defective paper may be a movant’s citation that leads nowhere or an opponent’s response that never answers the movant’s fact.

Most failures of support are technical: a page cite that points nowhere, an exhibit left out of the filing, a declaration that never says how the declarant knows what it asserts. A judge who treated each of these as final would decide the motion on the quality of the drafting, although the question the motion asks is whether the record shows a genuine dispute. A chance to repair keeps the ruling tied to the evidence.

The same logic governs admissibility objections. Rule 56(c)(2) lets a party object that cited material cannot be presented in a form that would be admissible in evidence.¹¹ The objection works much like an objection at trial, adjusted for the pretrial setting, and the burden falls on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.¹² The cure option lets a court give the proponent the chance to do so. A proponent who cannot, the advisory note adds, will see the court disregard its evidence.¹³

The option repairs how evidence is presented; it cannot supply evidence a party lacks. A declarant who watched the spill but forgot to say so can fix the declaration by stating what the declarant saw and from where. A declarant who was never on the premises and knows of the spill only from a coworker’s account cannot cure anything by adding a sentence, because a declaration must actually be made on personal knowledge and set out facts that would be admissible.¹⁴ The first defect is one of form. The second shows that the proof is missing.

Because the option is the court’s to give, a party should file complete support the first time and repair a noticed defect without waiting for an invitation. When the court offers no chance, or the party fails to use one, the next responses come into play.

Facts Treated as Undisputed

The next response puts the cost of the failure on the party who failed: the court may “consider the fact undisputed for purposes of the motion.”¹⁶ Three features of that clause matter. It speaks of “the fact,” so the consequence attaches to the particular assertion that went unsupported or unanswered, and a party can lose one fact while keeping the rest. The phrase “for purposes of the motion” confines the effect to the ruling now being made. And may leaves the choice to the judge. What counts as proper support or a proper answer is again measured by Rule 56(c)(1): citation to particular parts of the record, or a showing that the other side’s materials do not establish the absence or presence of a genuine dispute or that it cannot produce admissible evidence.¹⁷

The reason is plain: silence adds nothing to the record. Once the movant’s papers show that no genuine dispute of material fact exists, the burden shifts to the opponent to introduce outside evidence rebutting that conclusion. If the opponent introduces none, the movant’s evidence is taken as true, and in most cases summary judgment follows.¹⁸

The Massachusetts counterpart states the consequence in directive terms: “If he does not so respond, summary judgment, if appropriate, shall be entered against him.”¹⁹ The federal rule is permissive where that one is directive, but the logic carries over. Commentary on the Massachusetts rule quotes Farley for the point that “[t]he party failing to file an opposing affidavit in such a situation cannot rely on the hope that the judge may draw ‘contradictory inferences’ in his favor from the apparently undisputed facts alleged in the affidavit of the moving party.”²⁰

Silence helps the movant only as far as the movant’s papers reach. The opponent’s burden to introduce outside evidence arises only if the movant’s papers show that no genuine dispute exists,²¹ so an opponent’s failure to respond cannot supply a fact the movant never established. The next subsection develops that limit.

Hypothetical Illustration

A supplier sues a contractor for an unpaid invoice and moves for summary judgment. Its warehouse manager’s affidavit states, from the manager’s own observation, that the materials reached the job site on June 4. The contractor’s opposition brief objects that the invoice is inflated and says nothing about the delivery, and it cites no declaration, deposition, or document on that point. The contractor has not addressed the supplier’s fact, so the court may treat the June 4 delivery as undisputed for purposes of the motion. Had the contractor attached a foreman’s declaration stating, from the foreman’s own observation, that the foreman was at the site all day on June 4 and no delivery truck arrived, the contractor would have answered the fact with evidence. That declaration conflicts with the manager’s affidavit on a point that bears on the claim, so the court could not treat the delivery as undisputed, and the question would stay open for a jury.

The fact that moved the result in the hypothetical is the contractor’s evidence. A brief that argues about delivery describes what might be proved; a declaration on personal knowledge puts a witness’s account in the record. A nonmovant who wants the court to doubt the movant’s witness must likewise introduce facts showing why the witness’s credibility is in question, because the court will not weigh credibility itself and asks only whether credibility may be determinative.²² A contractor who merely called the manager unreliable would not have answered the fact.

The rule reaches responses that were filed but defective. A declaration must be made on personal knowledge, set out admissible facts, and show the declarant’s competence,²³ and cited material that cannot be presented in admissible form falls to a proper objection.²⁴ The proponent bears the burden of showing admissibility, and if it cannot, the court will not consider the evidence.²⁵ On the fact in question, a party with an unusable response ends up where a silent party does.

The court’s discretion runs in both directions. The court need consider only the cited materials, but it may consider other materials in the record.²⁶ A judge who notices contradicting deposition testimony elsewhere in the file may decline to treat a fact as undisputed, but a nonmovant who cited nothing cannot demand that the judge go looking. The nonmovant should cite the contradicting evidence, because the court’s power to find it uncited is a permission, not a duty.

Treating a fact as undisputed does not grant judgment. Rule 56(a) joins two requirements: no genuine dispute as to any material fact, and entitlement to judgment as a matter of law.²⁷ A ruling under Rule 56(e)(2) can satisfy only the first. That requirement exists because the main purpose of a trial is to resolve factual disputes, so when none is genuine there is nothing for a jury to decide.²⁸ The second requirement still stands, and undisputed facts do not by themselves show that the law favors the movant.

The order of the rule is therefore a ladder. A court may first allow a party to repair a defective paper, may then treat the unsupported or unanswered fact as undisputed for the motion, and may finally enter judgment when the movant’s materials and the facts so treated show entitlement to it. The next subsection takes up that last step.

Grant or Other Order

The third response lets the court act on the result: it may “grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it.”³⁰ Three phrases carry the rule. “The motion and supporting materials” are what must show entitlement, so the movant’s own papers bear the weight. The facts “considered undisputed” join that showing; they do not replace it. And may makes the grant a permission, although Rule 56(a) directs the court to grant summary judgment whenever the movant shows no genuine dispute as to any material fact and entitlement to judgment as a matter of law.³¹

The grant is a separate step because deeming a fact undisputed answers only half of Rule 56(a). When no genuine dispute remains, resolving the action becomes a matter of applying the relevant law to the facts, a task the court can perform without a jury.³² That application is the second half of the standard, and the court must perform it even when every fact is established. A court that has deemed all of the movant’s facts undisputed must still ask what the governing law does with them, and it may find that the law does not require judgment for the movant.

The movant’s papers carry the motion; the opponent’s silence cannot. The burden to introduce outside evidence shifts to the opponent only if the movant’s papers show that no genuine dispute exists,³³ and Rule 56(e)(3) asks whether the motion and supporting materials show entitlement.³⁴ A fact the movant supported and the opponent left unanswered can be accepted as undisputed, so silence turns a supported assertion into an established one. Silence cannot create support the movant never offered. Reading the opponent’s failure to respond as a concession of the whole motion is a common error; the failure concedes only what the movant supported.

Hypothetical Illustration

A landlord sues a tenant for unpaid rent and moves for summary judgment. Assume the claim requires proof of a lease, the tenant’s occupancy, and nonpayment of the rent due. The landlord’s manager swears, from personal knowledge, to the lease terms and to the tenant’s occupancy through the period in question. Her declaration says nothing about payment, and the tenant files no response. The court may treat the lease and the occupancy as undisputed, but nothing in the landlord’s materials shows nonpayment, and the tenant’s silence cannot supply it, so the court cannot grant the motion. Change one fact: the manager, who keeps the rent ledger, also swears that no rent has been received since March. Now a supported, unanswered assertion covers the missing element, the court may treat nonpayment as undisputed, and judgment follows if the law entitles a landlord to unpaid rent under the lease.

The two versions of the motion differ only in the landlord’s papers. The tenant filed nothing in either one. That is the sense in which the movant’s burden is never relieved: the opponent’s failure to respond decides the motion only after the movant’s papers have done their own work.

The last option in Rule 56(e) is “any other appropriate order,” and it exists because the failures the rule addresses range from a missing page citation to a gap no amendment can fill. A rule offering only grant or denial would force results that fit poorly. Rule 56(a) lets a motion target a claim or defense, or only part of one, so the court may grant judgment on the part the record resolves and leave the rest for trial.³⁵ Judgment on certain issues or claims eliminates them from the trial process, which is one way the device simplifies the trial that remains.³⁶

Denial can also be the right order. A judge may deny the motion because a fuller record may clarify the correct legal analysis, and the Supreme Court has approved deferring decision where it is “good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings.”³⁷ Even a denied motion has value, because the exchange of information needed to decide it may help both parties shape their cases for trial.³⁸

Whatever order the court enters, Rule 56(a) says it should state on the record its reasons for granting or denying the motion.³⁹ The reasons let the parties and a reviewing court tell a denial for a gap in the movant’s showing from a denial for a genuine factual dispute.

Exam Analysis Steps

Because a grant depends on the movant’s papers and not on the opponent’s silence, the analysis runs best from the movant’s side first:

Identify the facts the movant supported by citing particular record materials.
Determine whether the opponent properly addressed each of those facts. If it did not, decide whether the court should allow a cure or treat the fact as undisputed for purposes of the motion.
Ask whether the movant’s own materials, together with the facts so treated, cover every element of the claim or defense on which the movant seeks judgment.
Apply the governing law to those facts and ask whether it entitles the movant to judgment.
If both answers are yes, grant the motion under Rule 56(e)(3). If either is no, deny the motion in whole or in part, or enter another appropriate order, and state the reasons on the record.

The opponent’s silence matters at the second step. The third step is the one most often skipped, and a motion that fails there is denied however little the opponent filed.