Partial Summary Judgment

Rule 56(a) lets a movant aim the motion at part of a case. The movant must identify each claim or defense, "or the part of each claim or defense," on which judgment is sought, and the court applies the familiar standard to the part named: no genuine dispute as to any material fact, and entitlement to judgment as a matter of law.¹ A judgment entered on such a motion is a partial summary judgment. It is limited to certain issues and disposes of only a portion of the whole case, and the device is also called summary adjudication.²

Partial motions fit the way lawsuits actually look. A defendant may admit signing a contract and still contest what its breach cost, and a plaintiff with three claims may find that only one depends on which witness the jury believes. Rule 56(a) lets the court resolve an issue on which the facts are undisputed without a jury and leave the jury only the issues that remain in factual dispute.³ The partial form also does more than end part of a case. Issues and claims that leave the case on summary judgment no longer burden the trial, so the trial that remains is simpler.⁴ Two features of Rule 56 produce these results: the movant's power under subdivision (a) to choose the target, and the court's power under subdivision (g) to fix facts when a motion succeeds only in part.

Parts of Claims and Defenses

The target of a partial motion comes in several sizes. The largest is a whole claim. In a lawsuit with several claims, the motion can resolve individual claims, or the claims by or against one party, and leave the others for trial. Hart, for example, might win summary judgment on the emotional distress claim Comden alleges and still have to try Gershwin's physical injury claim.⁵

A smaller target is an issue within a single claim. If no genuine dispute exists about the facts pertaining to that issue, the court decides it without the jury and leaves the jury the issues on which the facts are disputed.⁶ The court may also decide a single counterclaim or defense, or a portion of a claim, such as the existence of liability or the amount of damages that follow if liability is established at trial.⁷ Each target is judged by itself, so a genuine dispute elsewhere in the case does not by itself defeat a motion aimed at a part where none exists.

The most common division separates liability from damages. When a plaintiff sues for breach of contract, the court may grant partial summary judgment on liability if no genuine dispute exists about whether a breach occurred, and it will then probably hold a trial limited to damages.⁹ The two questions rest on different proof, so a record can be complete on one and contested on the other. The extent of damages, especially if they include compensation for pain and suffering or emotional distress, or punitive damages, is almost always genuinely disputed and must be ascertained by trial.¹⁰ In the treatise's Slaven example, the plaintiff may therefore obtain partial summary judgment on the city's liability, but she still has to prove her damages.¹¹

The burden at trial explains why the partial form matters here. A movant who would bear the burden of proof on a claim must show that no genuine dispute of material fact exists about each and every element. In the treatise's tort hypothetical, Sophie, moving on her strict product liability claims against United Fibreboard, would have to establish the material facts supporting every element: United's manufacture of the product to which the deceased was exposed, proximate causation, product defect, and damages.¹² Because damages are so often contested, a movant seeking judgment on a whole claim can fail on that element alone. A motion confined to liability does not ask the court to fix the amount of the loss. A later section develops the burdens on the motion; for now, note that a fact pattern showing undisputed fault but a contested loss calls for partial summary judgment on liability, not for denial of the motion and not for judgment on all the relief sought.

Orders Fixing Undisputed Facts

Rule 56(g) covers the motion that asks for more than the record will support. If the court does not grant all the relief requested, it may enter an order stating any material fact that is not genuinely in dispute and treating the fact as established in the case. The facts it may name include an item of damages or other relief.¹⁵ The word "may" makes the order discretionary, and the rule speaks of material facts, not every fact in the record.

The order puts work the court has already done to use. Ruling even on a losing motion requires a close reading of the record, and that reading may show that some material facts are beyond genuine dispute. Without an order, the parties would otherwise be left to prove those facts again at trial. With one, the facts are treated as established, and the trial is confined to what remains contested. The same logic explains why even a denied motion helps the parties: the exchange of information the court needs in order to rule helps both sides shape their cases for trial.¹⁶

The order works at a different level from the partial judgment discussed above. Partial summary judgment answers a motion aimed at part of the case and disposes of that part. A Rule 56(g) order answers a motion that asked for more than the court will give, and it operates on individual facts, so the court can take facts out of dispute even when no claim, defense, or issue can be disposed of entirely. A denial therefore tells you only that the movant failed to show a right to all the relief requested. A case that survives the motion may still go to trial with part of its factual ground already settled. Whether the court grants or denies the motion, it should state its reasons on the record.¹⁷