Timing of the Motion

Timing of the Motion

Rule 56(b) settles timing in one sentence: unless a local rule sets a different time or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.¹ The sentence does three things. It names no earliest date, so the window opens when the case does. It closes on the thirtieth day after discovery ends. And it lets a local rule, or an order in the particular case, substitute another period, so every timing problem begins with a check for one. The 30-day default governs only when both are silent.

Timing questions on an exam reduce to arithmetic plus that one check.

Because the rule names no earliest date, a motion filed in the first weeks of a case is timely.² A party may have good reason to file early. The procedure exists to find out whether an issue set forth in the pleadings is in fact in dispute and to eliminate any portion of the case that needs no trial, and even a denied motion can help, since the exchange of information needed to rule on it may help both parties shape their cases for trial.³

The respondent's protection lies in Rule 56(d). A nonmovant who believes the motion came before there was sufficient opportunity to discover the facts needed to oppose it may move to defer consideration pending further discovery.⁴ If the motion is premature, the court may defer ruling on it.⁵ The movant therefore chooses when to file, and the nonmovant must ask the court for time.

The request has to be made, because courts do not always wait for discovery to finish on their own. Some decisions suggest a trend in which a nonmovant's failure formally to request a Rule 56 extension may result in summary judgment before discovery is complete.⁷ A student should therefore not treat every early motion as automatically premature. The motion is timely, and the open question is whether the nonmovant asked for time.

The record explains why discovery matters. A motion for summary judgment previews, usually in documentary form, the evidence the parties would put on at trial. Judge Posner has described the question in jury cases as “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.”⁸ The court measures the evidence as it stands on the day of decision. The same is true when a movant without the trial burden argues that the record contains no evidence from which the nonmovant could establish an essential element of its claim.⁹ A claim about what a record lacks is only as strong as the record is complete.

A respondent facing an early motion need not stage a trial in miniature. The nonmovant may oppose with the kinds of evidentiary materials the rule lists, other than the bare pleadings, and does not have to produce them in a form admissible at trial. Rule 56 does not require the nonmovant to depose her own witnesses.¹⁰

Filing a summary judgment motion also ends a right that has nothing to do with Rule 56. A plaintiff may dismiss without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, or by stipulation of all the parties.¹¹ The first notice dismissal is without prejudice to a new action on the same claim, but under the two-dismissal rule a second notice dismissal operates as an adjudication on the merits. Once the defendant has served an answer or a summary judgment motion, the plaintiff needs the parties' stipulation or a court order. The court then asks whether dismissal will cause the defendant plain legal prejudice beyond the tactical advantage any plaintiff seeks, and it may condition dismissal on payment of the defendant's costs and other terms. Because Rule 56(b) allows a motion at any time, a defendant can end the plaintiff's right to dismiss by notice by serving an early motion, even before answering.