The Summary Judgment Standard

The Summary Judgment Standard

Rule 56(a) gives the court one test for every summary judgment motion: the court shall grant the motion if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.¹ That single sentence asks three questions. Is any dispute on the record genuine? Does the disputed fact matter to the outcome under the governing law? And do the facts that nobody disputes entitle the movant to judgment? The first two questions concern the facts, the third concerns the law, and the motion fails if the movant loses any one of them.

Each question has its own way of defeating the motion. The movant loses the first when a reasonable jury could resolve the contested point either way. It loses the second when the contested point bears on an element of the claim or defense, since only disputes over immaterial facts are disregarded. It loses the third when the undisputed facts do not entitle it to judgment under the governing law. Whichever question the movant loses, the court denies the motion and the case moves toward trial.

Genuine Dispute

The adjective genuine does most of the work in Rule 56(a).² Parties can always disagree about facts, and a defendant may deny every allegation in a complaint, so a rule that treated every asserted disagreement as a bar to judgment would end no case. Anderson v. Liberty Lobby, Inc. read the rule's wording accordingly: the mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion, because the requirement is that there be no genuine issue of material fact.³ A dispute is genuine when it presents a factual issue that may reasonably be resolved in favor of either party, and that properly can be resolved only by a finder of fact.⁴

That test asks what a jury could do, and the verb carries the doctrine. A judge who asked what the jury would do would have to forecast a verdict, and forecasting a verdict means deciding which witnesses to believe and which evidence weighs more, which are jury functions.⁵ The judge instead performs a threshold inquiry: whether the case needs a trial at all. The judge need not make findings of fact to answer it.⁶ Once the court sees that a reasonable jury could go either way, the motion fails on this question.

The test has a floor. Courts once held that a scintilla of evidence obliged the judge to leave a case to the jury, but the settled rule asks whether there is any evidence on which a jury could properly proceed to a verdict for the party who produces it.⁷ In the Court's words, “[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.”⁸ If a trace of support sufficed, every nonmovant could force a trial it had no realistic chance of winning, and the pretrial screen would screen nothing.

The floor matters most when a nonmovant answers a supported motion by arguing only that the jury might disbelieve the movant. That argument puts no evidence in the record from which a reasonable juror could find for the nonmovant. Anderson rejected it in conspiracy and libel cases: the movant must show that no genuine issue exists, but the plaintiff must still produce evidence that would support a jury verdict, and cannot merely assert that the jury might, and legally could, disbelieve the defendant's denial.⁹ The plaintiff in Slaven v. City of Salem, who sued after her brother's suicide in custody, tried a variant of the same argument. She contended that she could prove the city's knowledge of his suicidal tendencies by cross-examining the officers at trial and, on their denial, establishing the affirmative. The court firmly rejected the contention: a plaintiff opposing a supported motion must show that she can produce enough evidence to reach the jury.¹⁰ The allegations of a complaint cannot make that showing either. A motion to dismiss asks whether the allegations are sufficient on their face, while summary judgment asks whether any factual basis stands behind them, which is why a court may treat a Rule 12 motion supported by affidavits or other outside matter as a motion for summary judgment.¹¹

A credibility challenge can defeat the motion, but only on a showing. The opponent must introduce facts showing why a witness's credibility is in question, typically that the witness is a party rather than a disinterested observer, or that the issue turns on what was in someone's mind or on motive. The court does not assess credibility itself. It decides only whether there is reason to believe credibility may be determinative, and if there is, it denies the motion.¹²

The passenger has not shown that she can come up with admissible evidence on which a reasonable jury could resolve in her favor an element of her prima facie case, namely that the driver failed to stop and was therefore negligent. Her pleading, and her assertion that he was negligent, cannot substitute for that evidence.¹³ Had a bystander's sworn account or a reconstruction of the skid marks placed the car in motion at the sign, the same exchange of papers would have left a question for the jury, because a jury could then accept her side of it.

The court also reads the record in the nonmovant's favor. It believes the nonmovant's evidence and draws every justifiable inference for the nonmovant, because credibility determinations, the weighing of evidence, and the drawing of legitimate inferences belong to the jury.¹⁴ Scott v. Harris states the instruction in similar terms: courts view the facts and draw reasonable inferences in the light most favorable to the party opposing the motion.¹⁵ Robinson v. Pezzat shows what follows on a record that looks lopsided. The plaintiff's account of an officer's shooting of her dog stood alone against the officers' accounts, and a jury might well have preferred theirs, yet the D.C. Circuit held that the court deciding the motion had to credit her testimony and make no credibility determinations. The question was whether a jury could credit her, not whether it would. Tolan v. Cotton makes the same point from the other direction. The Supreme Court vacated a decision because the court of appeals, by failing to credit evidence that contradicted its key factual conclusions, had weighed the evidence and resolved disputed issues in favor of the moving party.

The inquiry closely tracks the one a court conducts on a motion for judgment as a matter of law at trial. The Court has called the genuine-issue standard “very close” to the reasonable-jury directed-verdict standard, and the primary difference is procedural: summary judgment motions are usually made before trial and decided on documentary evidence, while directed-verdict motions are made at trial and decided on the evidence admitted.¹⁶ That difference explains the caution courts bring to the earlier motion. Summary judgment is typically decided on affidavits and other documents, the opposing party may submit her own materials but cannot cross-examine, and the motion may come before the parties have fully developed their cases. If the judge senses that the case will turn on facts the record does not fully elucidate, she will likely conclude that the parties should have a full opportunity to present their evidence at trial.¹⁷ Anderson itself counsels caution in granting the motion and allows denial where a full trial seems the better course.¹⁸ The caution has a wider base. Summary judgment has not won universal approval: critics have called it an unconstitutional interference with the right to jury trial in federal court, and have called it costlier than trial and more trouble than it is worth. Even a denied motion has some value, because the exchange of information needed to decide it may help both parties shape their cases for trial.¹⁹

The substantive standard of proof shapes the inquiry as well. The judge must view the evidence through the prism of the substantive evidentiary burden, because the question is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence the governing law requires or that he did not, and “reasonable” has no meaning without a benchmark for the jury's deliberations.²⁰ In Anderson, a libel case in which the plaintiff had to show actual malice by clear and convincing evidence, the summary judgment question became whether the record could support a reasonable jury finding either that the plaintiff had shown actual malice by that standard or that he had not.²¹ In a run-of-the-mill civil case, the judge asks whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.²² Identical evidence can therefore leave a genuine dispute in an ordinary civil case and none in a case that demands clear and convincing proof. Reading the record through the heightened standard does not authorize trial on affidavits, because credibility determinations, weighing, and inferences remain jury functions.²³ Genuineness thus depends on the evidence and the standard of proof. Whether the point matters at all is a separate question, which turns on the substantive law's identification of the critical facts.²⁴

Material Facts

The second adjective in Rule 56(a) screens disputes by relevance rather than by the evidence behind them: a dispute blocks judgment only if it concerns a material fact.²⁷ The substantive law identifies which facts are material, and only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment. Disputes that are irrelevant or unnecessary are not counted.²⁸

Two reasons support the limit. A trial exists to resolve factual disputes, so a dispute that cannot change the result leaves the jury nothing useful to decide and makes a trial pointless.²⁹ The limit also keeps the motion workable, because without it a party facing a well-supported motion could defeat it by quarreling over collateral details. A method follows. Materiality sorts disputed facts by their relation to the legal elements of the claim,³⁰ so a fact's importance cannot be judged by looking at the fact alone, and one event can be central to one cause of action and irrelevant to another. The court must identify the governing law and its elements before it can sort the disputes on the record.

Materiality and genuineness are separate filters, and a dispute can pass one while failing the other. Materiality rests on the substantive law's identification of the critical facts, and the strength of the evidence on either side plays no part in it.³¹ A dispute can be genuine and immaterial, when a jury could believe one side but the answer changes nothing, or material and not genuine, when the fact is decisive but the opponent has no evidence to contest it. Only a dispute that is both genuine and material blocks the motion.

The third step is where students most often go wrong, because a vivid or emotionally charged fact tempts them to treat it as material when no element depends on it.

Slaven v. City of Salem shows the filter at work. The prisoner killed himself in the city's custody, and his sister sued the city for negligence. The court assumed that the governing law was Restatement (Second) of Torts § 314A, under which a jailor must protect prisoners from an unreasonable risk of which it knows or should know. On that assumption the elements were that the city knew or should have known of the prisoner's suicidal tendencies, that it breached its duty to protect him from that risk, and that the breach proximately caused his suicide.³²

The record contained a disagreement about the prisoner's belt. Slaven testified at her deposition, under oath, that her brother wore a belt when she visited him in his cell. The arresting officer's affidavit said only that he did not know whether the prisoner wore one, and two other officers' affidavits were silent. From those averments a fact-finder might reasonably infer that the prisoner wore a belt.³³

The court nevertheless held the belt immaterial. The fact appeared to be in dispute, but it could not help establish negligence without a preliminary finding that the city knew or should have known the prisoner was a suicide risk, and until the city's duty was established, whether he wore a belt did not matter.³⁴ A jury could have believed Slaven about the belt, so the dispute was genuine in the sense of the last section, but a genuine dispute over an immaterial fact leaves nothing to try.

What Slaven lacked was evidence on the element that did matter. The officers each averred, from personal knowledge, that none of them knew or should have known the prisoner was suicidal. Her complaint alleged that the city knew or had reason to know, but a party opposing the motion may not rest on the allegations of her pleading and must set forth specific facts showing a genuine issue for trial.³⁵

Even the belt could matter if the law tied it to an element. The Slaven court set against its own case a decision in which police regulations required the jailor to take the belt from a prisoner before confinement.³⁶ The fact is the same in both cases, and the substantive law decides whether it matters.

The filter also works against a movant who shows only that some facts are beyond dispute. Most claims have several elements, and a movant seeking judgment must leave no genuine dispute on any of them, so a record that is settled on one element still leaves the others to be tried.

An exam stem that shows no dispute about one fact therefore usually leaves another element unresolved, and the expected conclusion is that summary judgment is not appropriate.³⁸

Judgment as a Matter of Law

Rule 56(a) requires two showings, joined by the word and: no genuine dispute as to any material fact, and entitlement to judgment as a matter of law.⁴¹ The first two questions concern the facts, and this one begins where they end. It assumes the material facts are settled and asks what the governing law does with them, because settled facts decide nothing until a rule of law says what follows. A movant with an undisputed record can still lose here, since the rule directs the court to grant the motion only when both showings are made.⁴²

The question belongs to the judge because courts decide issues of law and juries decide issues of fact.⁴³ Once the record shows no genuine dispute over a material fact, no factual question remains for a jury, and applying the law to the settled facts becomes a task the court can perform without one.⁴⁴ Entering judgment at this stage therefore takes from the jury nothing it would otherwise have done. The motion differs in this respect from a motion to dismiss or a demurrer, which tests the legal sufficiency of mere allegations. Summary judgment tests the legal sufficiency of a party's position on facts that are undisputed and therefore established.⁴⁵

The same division explains why disagreement about the law never blocks the motion. Rule 56(a) withholds judgment only for a genuine dispute of material fact.⁴⁶ A dispute about the applicable law is not tried by fact-finders; a judge decides it, even when the governing law is itself contested.⁴⁷ Slaven illustrates the point. The court admitted that it had never specifically addressed the duty a jailor owes a person in custody, yet it adopted the Restatement standard and applied it to the motion. Had lower courts split between that standard and strict custodial liability, the judge would still have resolved the question, because a trial would have given fact-finders nothing to decide on it.⁴⁸

A court may still choose to wait. Kennedy v. Silas Mason Co. approved withholding decision of the ultimate legal questions in a case until a record presented a more solid basis of findings, or a comprehensive statement of agreed facts, because a ruling on the thin record at hand might later prove to lack the thoroughness that a judgment of that importance deserves.⁴⁹ Anderson likewise recognizes that a court may deny the motion when there is reason to believe the better course is a full trial.⁵⁰ The discretion rests on the state of the record, not on the difficulty of the question. When the parties agree on the facts, the record already supplies the basis Kennedy looked for, and a court that denied every motion raising a hard question would restore the full trial the motion exists to avoid.

The cleanest setting for this question is one in which the parties agree on what happened and disagree about what it means. The motion then presents a single legal question for the court.⁵¹

The disagreement between Berlin and Porter may be sharp, but it concerns the law, so the judge's ruling on the legal question settles the motion in whichever direction the ruling falls. Parties in that position often stipulate to the facts and file cross-motions, each arguing for judgment as a matter of law on the undisputed record.⁵²

The reverse situation also occurs: no one disputes the facts, and judgment still does not follow. A plaintiff who proves without dispute that the defendant, driving drunk and blindfolded down Main Street, struck and injured him will probably win summary judgment on negligence, because no jury could legitimately find on those facts that the defendant was not negligent.⁵³ The benchmark is the one used for genuine disputes: could a jury reasonably find for either party on the record?⁵⁴

Both scenes present a settled record and the same legal standard. They differ in how many conclusions the facts leave open to reasonable jurors: one in the blindfolded-driver case and two in the rainy-street case. An exam stem that announces undisputed facts has therefore not finished the analysis of a claim like negligence. The remaining question is whether the settled facts leave room for reasonable jurors to differ.