Supporting a Factual Position

Supporting a Factual Position

Rule 56(c)(1) requires any party who asserts that a fact cannot be genuinely disputed, or is genuinely disputed, to support the assertion in one of two ways.¹ The duty follows the assertion, not the party's role. A movant who calls a fact undisputed must back the claim, because Rule 56(a) makes the movant the one who shows that no genuine dispute exists.² A nonmovant who calls the same fact disputed takes on the same obligation, and the court holds both sides to it.

The reason lies in what summary judgment tests. Pleadings only assert what the parties say they can prove,³ and the motion asks whether any factual basis stands behind those assertions.⁴ A party who answers by repeating its pleading, or who announces that a fact is undisputed and stops, gives the court nothing to examine and the opponent nothing to check. Requiring support ties every assertion to material that both sides and the judge can read.

The Rule offers two methods. A party may point affirmatively to particular parts of the record,⁵ or it may respond by showing that the materials the other side cites do not establish what they are offered to establish, or that the other side cannot produce admissible evidence for the fact.⁶ The first method comes next; the second follows it.

Citing the Record

Rule 56(c)(1)(A) lets a party support a factual position by citing particular parts of materials in the record: depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, and other materials.⁷ Two features of that sentence control the method. The support must come from the record, and the citation must point to a specific part of it. Movant and nonmovant use the method alike, and each is judged by whether the cited item sits in the file and says what the citation claims.

The listed materials share one job: they show that a party has evidence it could present at trial. Summary judgment facts are limited, typically, to documentary evidence such as depositions and interrogatories, together with affidavits, which are sworn written statements by people who might later testify, and documents such as contracts or property deeds.⁸ Depositions, admissions, and interrogatory answers are sworn statements of parties or witnesses, and many documents, once shown to be authentic, are admissible under the rules of evidence and may be used directly.⁹

An affidavit shows how paper can stand in for testimony. These materials are not always admissible at trial themselves, but they demonstrate that the party has evidence that would be admissible. A sworn affidavit from an eyewitness to an accident, made on personal knowledge, shows that the witness could come into court and give the same testimony, so the party has admissible evidence to support its claim.¹⁰ The court rules on that documentary record, which previews the evidence the parties would put on at trial.¹¹ Parties who want a decision-maker other than the court have a separate route in arbitration, one of the oldest alternatives to litigating in court.¹²

Stipulations earn separate mention in the Rule because they may be made for purposes of the motion only.¹³ Such a stipulation lets the court treat a fact as agreed when it rules on the motion, and by its terms the agreement stays confined to the motion. The device suits cases in which the parties agree on what happened and disagree about its legal effect. They stipulate the facts and file cross-motions, each arguing that the undisputed facts entitle it to judgment as a matter of law.¹⁴

Pleadings do not appear on the list, and the omission follows from what a pleading is. Allegations in the pleadings represent the parties' assertions about what they can prove; they are not admissible evidence and cannot serve as supporting evidence on the motion.¹⁵ A party opposing a properly supported motion therefore may not rest on the mere allegations or denials of its pleading, and its response must set forth specific facts showing a genuine issue for trial.¹⁶ In a suit alleging that officers ignored a prisoner's suicide risk, for example, the plaintiff alleged that the defendant knew or had reason to know from observing the prisoner that he was a suicide risk. The city answered with affidavits in which each officer, on personal knowledge, said that none of them knew or should have known. The plaintiff's allegation could not stand against those affidavits, and to avoid judgment she had to come forward with specific facts.¹⁷ The federal rule is the same. When the movant's papers show that no genuine dispute of material fact exists, the burden shifts to the opposing party to introduce outside evidence, and a party who introduces none leaves the movant's evidence to be taken as true, which in most cases means summary judgment.¹⁸ The exception is a movant who fails its own initial burden, since then the pleadings alone can carry the opponent through.¹⁹ The same line between pleading and proof explains why a Rule 12 challenge that attaches affidavits or other materials to refute a genuine factual dispute may be treated as a motion for summary judgment.²⁰

The requirement of particular parts serves both judge and opponent. A party who hands up the whole discovery file and says support is somewhere inside makes the judge hunt for it and gives the opponent nothing to answer. A pinpoint, such as a deposition page and line, an affidavit paragraph, or an exhibit number and page, lets both check the assertion in minutes. Rule 56(c)(3) reinforces the point: the court need consider only the cited materials, though it may consider other materials in the record.²¹ A party who cites loosely cannot count on the court to search the file for support.

Chen's brief fails because it points to nothing the court can read. A summary judgment motion previews, in documentary form, the evidence the parties would offer at trial, and a pleading allegation is a promise of that evidence, not the evidence itself.²² Her declaration changes the outcome because it is a sworn statement on personal knowledge that sets out a specific fact.²³

Citing an item puts it before the court, but that does not settle whether the court may rely on it. A party may object that the cited material cannot be presented in a form that would be admissible in evidence.²⁴ The objection tests what the item says, not what it is called: an affidavit is not itself trial testimony, yet it can support a position because it shows that the affiant has admissible evidence to give.²⁵ A deposition cited by page and line can therefore be a flawless citation and still draw an objection that the quoted testimony is hearsay. Later sections take up those objections and the separate requirements for affidavits.

No Dispute or No Evidence

Rule 56(c)(1)(B) supplies the second method, which is “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”²⁸ Where the first method is affirmative, this one is responsive: the party studies what the other side has cited, or failed to cite, and shows that it cannot carry the weight placed on it. The sentence joins two tools with “or.” One attacks the sufficiency of the opponent's cited materials, and the other shows that the opponent has nothing admissible to cite. Each has its own reason and its own limit.

The first tool runs in both directions, as the words “absence or presence” signal.²⁹ A movant cites materials to show that no genuine dispute exists, and the nonmovant may answer that they do not establish the absence of one. A nonmovant cites materials to show a dispute, and the movant may answer that they do not establish its presence. Either way, an assertion is only as strong as the material under it, and a citation to an item that does not say what the party claims leaves the assertion unsupported. The answer often lies inside the item cited, in the part the citation never reached.

The rule asks whether the cited material establishes the proposition for which it is offered, and an accurate record that never reaches the deciding question fails that test. Had the lease directed notices to the main office, the log would have covered the right place, and the tenant's response would have shown nothing. A movant answering a nonmovant's citation works the same way, as when the declaration the nonmovant cites describes events on a different date from the one the claim concerns.

The second tool answers a problem of the party who will not carry the burden of proof at trial, usually a defendant. Suppose the plaintiff must prove that the defendant made the product. If the defendant had to prove that someone else made every product the plaintiff encountered, it would assume on the motion a burden that otherwise rests on the plaintiff at trial, and that burden might be difficult, if not impossible, to carry.³⁰ Rule 56(c)(1)(B) lifts the demand by letting the movant show instead that the adverse party cannot produce admissible evidence for the fact.³¹

Celotex Corp. v. Catrett placed this reasoning in the law of summary judgment. The Court refused to read the Adickes language to mean that a movant must produce evidence showing the absence of a genuine issue on a matter where the nonmovant bears the burden of proof.³² The movant may instead carry its burden by “showing”—pointing out to the district court—that the record lacks evidence to support the nonmoving party's case.³³

Mrs. Catrett's claim depended on proving that Mr. Catrett was exposed to products Celotex made. Celotex moved on the ground that the record held no evidence to support her claim,³⁴ and the argument had force because at trial she, not Celotex, would have to prove that Celotex rather than some other company manufactured the products to which he was exposed.³⁵ The Court did not decide whether what she offered in opposition was enough, and it left that question to the court of appeals.³⁶ The holding therefore concerns what a movant must do.

The tool has a limit built into the word “showing.” A showing is made with materials, so a bare claim that the opponent has no evidence shows nothing. A concurring opinion in Celotex agreed that the movant may rely on depositions, interrogatory answers, and the like to demonstrate that the plaintiff has no evidence, but it insisted that a movant may not move without supporting the motion in any way, or with a conclusory assertion that the plaintiff has no evidence.³⁷ The dissent saw the same limit from the other side. A movant who bases its motion on the absence of evidence in the record cannot ignore supporting evidence the record clearly contains; it must attack the adequacy of that evidence, and its failure to do so is a failure to discharge its initial burden of production.³⁸ All members of the Court, in short, ruled that the movant's burden of production depends on who bears the burden of proof at trial, and that a defendant movant may shift that burden with something less than a showing that the plaintiff could not prevail under any circumstances.³⁹ How much more than a conclusion the movant must offer remains somewhat unclear.⁴⁰

The grocery scene follows the concurring opinion's rule: a movant cannot obtain judgment against a plaintiff who has named a witness without showing that the witness's possible testimony raises no genuine dispute.⁴¹ It also shows the nonmovant's best answer to a thin motion, which is to point the court to evidence already in the record that the movant overlooked.⁴²

A nonmovant may answer a proper no-evidence showing with any of the materials listed in Rule 56(c) except the mere pleadings, and it need not depose its own witnesses to do so.⁴³ A nonmovant who has not yet developed its evidence cannot defeat the motion by saying it does not yet know whether the facts are disputed. It can, however, file an affidavit under Rule 56(d) to buy time to take discovery.⁴⁴

The word “admissible” in Rule 56(c)(1)(B) invites a misreading. Celotex said that the nonmovant need not produce evidence in a form admissible at trial,⁴⁵ and an opponent who believes the cited material cannot be presented in admissible form has a separate remedy in an objection under Rule 56(c)(2), which a later section develops.⁴⁶ What the nonmovant must ultimately produce, and how the burdens pass between the parties, belong to the next section.