Judgment Independent of the Motion

Until now the court has been a respondent. A party chose the claim or defense, picked the grounds, and filed the papers; the court ruled on what it was asked. Rule 56(f) lets the judge step out of that role on one condition, which governs everything the subdivision allows: the court must first give “notice and a reasonable time to respond.”¹ Once it has done so, the court may take any of three steps that no party requested:

grant summary judgment for a nonmovant;²
grant the motion on grounds not raised by a party; or³
consider summary judgment on its own after identifying for the parties the material facts that may not be genuinely in dispute.⁴

Each power rests on a simple fact about the record: it can show more than the movant asked the court to see. The court need consider only the materials the parties cite, but it may consider others in the record,⁵ and what it finds there may favor a party who never moved, or favor the movant for a reason the movant never gave. A judge who could only deny the motion would send the parties to a trial the record shows to be useless, and avoiding useless trials is the main purpose of summary judgment.⁶

The notice condition answers the danger these powers create. Under the ordinary procedure, the burden shifts to the opposing party to introduce outside evidence only after the movant's papers show that no genuine dispute of material fact exists, and the opposing party may also meet that burden by showing why it cannot present evidence at that time.⁷ A party facing judgment on a ground nobody argued, or in a case where nobody moved, has not yet been called on for evidence. Notice tells it what the court is weighing. A reasonable time lets it do what any opponent of a motion may do: introduce evidence that rebuts the court's conclusion, or explain why it cannot yet. Without both, the judgment would arrive as a surprise the party had no chance to meet. The question to ask in every scenario below is the same: did the party facing judgment receive notice and a fair chance to show a genuine dispute?

Judgment for the Nonmovant

Rule 56(f)(1) permits judgment for a nonmovant, and Rule 56(f)(2) permits the court to grant a motion on grounds no party raised.⁸ The first power changes who wins; the second changes why. Both let the court act on its own reading of the record rather than on the movant's request, so both carry the notice condition.

The standard does not change. Rule 56(a) directs the court to grant summary judgment when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, and it says the court should state its reasons on the record.⁹ Subdivision (f) lets the court apply that test to a party who never filed. The party that did file now faces judgment and carries the burden any opponent carries: showing that a genuine dispute exists.¹⁰ Two tempting answers are therefore wrong. One holds that a court cannot rule for a party who filed nothing; Rule 56(f)(1) rejects it. The other holds that an undisputed record lets the court rule at once; the notice condition rejects that.

Hypothetical Illustration

Berlin sues Porter for malicious prosecution, alleging that Porter's earlier suit against him ended in his favor, and moves for summary judgment on that element. The parties agree on the underlying facts: the earlier case was continued without a finding. They disagree about whether that disposition counts as “favorable termination.”¹¹ Assume the court concludes, as a matter of law, that it does not. Rather than deny Berlin's motion and enter judgment for Porter in the same order, the court issues a notice stating that it is considering judgment for Porter on the termination element, identifying the agreed facts on which it relies, and setting a date for Berlin's response. Berlin files a brief arguing the law but offers nothing that contradicts the agreed facts. The court denies his motion and grants judgment for Porter.

The notice does two jobs here. By naming the ground and the agreed facts, it tells Berlin what to answer. By setting a date, it gives him time to contest those facts with evidence, if he has any, or to show why he needs more time to find it.¹² A single order that denied his motion and entered judgment for Porter would have given him neither.

The second power keeps the movant as the winner and changes the reason. A movant may press a weak argument while the record reveals a strong one the movant overlooked, and Rule 56(f)(2) lets the court grant the motion on the stronger ground. Notice matters even more here, because the opponent answered only the arguments in the movant's brief and had no reason to address a ground no one raised.

When both sides move, the court rules on each motion separately, and the filing of cross-motions does not concede that no genuine factual issue remains for trial.¹³ Each movant must carry its own showing, so a court that finds the competing records in conflict may deny both. Cross-motions fit best the case in which the parties agree on the facts and disagree about their legal effect.¹⁴ If Berlin and Porter each moved on the termination question, the single legal issue would be whether a continuance without a finding is a favorable termination, and the court would apply the law to the agreed facts and rule on each motion.

Court-Initiated Summary Judgment

Rule 56(f)(3) allows the court to “consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.”¹⁶ The powers in the previous subsection operate while someone's motion is pending; this one reaches the case in which no party has moved at all and the judge raises the question. The rule describes a first step rather than a ruling. The court identifies the facts it regards as possibly undisputed, and the parties then answer, within the notice and reasonable time that subdivision (f) requires.¹⁷

The power rests on the same reasoning as the others. If the record would support judgment on a party's motion, forbidding the court to act because no one filed would only delay a result the record already supports, and entering judgment avoids a useless trial.¹⁸ The cost is surprise, and it is sharper here than anywhere else in Rule 56, because the court itself has taken the initiative. With no motion there is no movant's showing, so no burden to produce evidence has shifted to anyone.¹⁹ The party who may lose has had no reason to gather affidavits or cite the record on the point the court has in mind.

The two safeguards in the rule answer different parts of that problem. Identification tells the party what to answer: the court names the facts it regards as possibly undisputed, and the party need not guess which of the case's many facts are in play. A reasonable time tells the party when it can answer, and the time must suffice for the party to introduce evidence rebutting the court's view or to show why it cannot yet present that evidence.²⁰

Celotex Corp. v. Catrett shows how closely fairness tracks a party's opportunity to gather evidence. The Supreme Court found no serious claim that the respondent had been “railroaded” by a premature motion, because the parties had conducted discovery. It added that any problem with premature motions can be handled under the provision it called Rule 56(f), which allows a motion to be denied, or the hearing continued, if the nonmoving party has not had an opportunity to make full discovery.²¹ The same concern governs judgment the court initiates. Fairness depends on the party's having had a chance to develop its evidence, and the relief for a party that lacks discovery is the one described earlier under When Facts Are Unavailable.

Pretrial case management offers a tempting shortcut around that procedure. Rule 16 gives a judge authority to manage the case before trial, including authority to eliminate claims and defenses and to address when summary adjudication is appropriate, and a judge managing a crowded docket may treat a conference as the occasion to dispose of a weak claim. That authority does not replace Rule 56's procedure. At a minimum, the court must notify the party against whom judgment may be entered that it is considering summary judgment, and it must let discovery advance far enough for that party to explore the evidence and determine what additional evidence is likely to turn up.²² The structure explains why. Rule 16 governs how the court manages a case; Rule 56 governs when the court may end a claim on the merits without a trial. If a case-management label could stand in for Rule 56's protections, any court-initiated judgment could escape them by being announced at a conference. And a judgment under Rule 56 requires a finding that no genuine dispute exists as to any material fact and that the party is entitled to judgment as a matter of law;²³ a judge's impression that a claim looks weak is not that finding.

The path that satisfies the rule runs through an order that precedes any ruling, and the party's answer to that order decides whether judgment follows.

Hypothetical Illustration

After discovery closes in a suit on an unpaid invoice, the judge reviews the record and issues an order stating that she is considering summary judgment for the supplier. The order identifies as facts that may not be genuinely in dispute that the full order was delivered and that the invoice remains unpaid, and it sets a date three weeks out for responses. The buyer responds with a declaration from its receiving clerk, who states from her own count that a third of the goods never arrived. That declaration contradicts an identified fact on a point that matters, so the court cannot treat delivery as undisputed and does not enter judgment on that basis. Had the buyer filed nothing, or only a brief repeating its denial, the record would have stayed as the judge described it, and the court could have entered judgment for the supplier if the law entitled the supplier to it.²⁵

The ordinary standard governs the end of that process. Identification opens an inquiry and invites a response; judgment follows only if the record then shows no genuine dispute as to any material fact and the law entitles the favored party to judgment.²⁶ The party facing judgment answers with the materials it would use against any motion, citing particular parts of the record such as affidavits or declarations, depositions, and documents.²⁷ A party that does not yet hold such evidence can show why it cannot present evidence at that time.²⁸ And if the court ends by declining to enter judgment, the exchange has still done work: the information the parties produced for the court's ruling may help both shape their cases for trial.²⁹

Exam Analysis Steps

Because the validity of a court-initiated judgment turns on what happened before the ruling, organize an answer as a review of the court's procedure followed by a check of the usual standard:

Confirm that no party moved for the relief the court is considering, which places the court's action under Rule 56(f)(3).
Ask whether the court identified the specific material facts that may not be genuinely in dispute, as opposed to announcing a general intention to dispose of the claim.
Ask whether the party facing judgment received notice that the court was considering summary judgment and a reasonable time to respond.
Ask whether discovery had advanced far enough for that party to explore the evidence and learn what more it might find.
If the party responded, ask whether its cited record materials show a genuine dispute; if it did not, ask whether the identified facts show entitlement to judgment as a matter of law.

The second step is the one students most often skip. A judge's remark at a conference that a claim looks weak identifies no fact, so a judgment that follows such a remark fails the checklist at step two however strong the claim was.