Burdens on the Motion

Rule 56(a) gives the movant the first task: it must show that no genuine dispute exists as to any material fact and that it is entitled to judgment as a matter of law.¹ The Rule does not say what such a showing looks like. The answer depends on a question that has little to do with the motion itself: who would have to persuade the jury on the point at trial?

Two trial burdens supply the answer, and the analysis stays clear only if they are kept apart. The burden of persuasion rests on the party seeking to alter the status quo and never shifts. Much of the work in litigation is done by a lesser burden, the burden of production, which orders the presentation of evidentiary proof.² A party asserting a claim must come forward with evidence sufficient to support a finding in its favor, and when the party defending against that claim moves for summary judgment, the question becomes what the movant must produce to establish its own entitlement to judgment.³

The motion carries burdens of its own. The movant bears an initial burden of production, which shifts to the nonmovant once the movant satisfies it, and an ultimate burden of persuasion that never leaves the movant; the court need not ask whether the movant has persuaded it until the initial burden of production is met.⁴ The trial burden fixes the content of that initial showing, because the movant's burden of production on the motion is conditioned on the burden of proof the movant would carry at trial.⁵

That dependence follows from what the motion does. It previews, usually in documentary form, the evidence the parties would offer at trial, and the court decides “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.”⁶ The court may decide whether facts could be established on the record, but it must leave to the jury whether they have been, a line that is necessarily precarious.⁷ And because the motion tests whether any factual basis supports the allegations, and not merely whether they state a claim on their face,⁸ the inquiry proceeds element by element, which the court cannot do without knowing who would have to prove each one.

Three situations follow: the movant who would carry the trial burden, the movant who would not, and the nonmovant who must answer a showing that is adequate on its face. Each calls for its own analysis.

Movant With the Trial Burden

A movant who would carry the burden of persuasion at trial must present undisputed facts supporting each and every element of its claim or defense.⁹ This is a proof-of-the-elements motion, because the movant proves its case on paper. A plaintiff makes it on its own claim. A defendant makes it on an affirmative defense, on which the defendant ordinarily bears the burden at trial.¹⁰

Of the showings a movant may make, this one asks the most. The movant must support the motion with credible evidence, drawn from any of the materials Rule 56(c) lists, that would entitle it to a directed verdict if no one controverted it at trial.¹¹ A directed verdict takes an issue from the jury because the evidence permits only one result, and its modern federal counterpart is judgment as a matter of law. The standard is demanding because the court will not weigh the movant's witnesses. The court does not assess the actual credibility of any witness, which is the jury's role; it asks only whether there is reason to believe that credibility may be determinative, and if there is, it denies the motion.¹²

The opponent supplies that reason by introducing facts showing why a witness's credibility is in question. Typically it shows that the witness is not disinterested, as when the witness is a party, or that the issue turns on someone's state of mind or motive, so that it ultimately depends on that person's credibility about what was in the person's mind at a given time.¹³ A movant whose proof is its own sworn account hands the opponent exactly that opening, while a movant whose proof is documentary or comes from disinterested witnesses leaves less to attack.

The element-by-element requirement makes a gap anywhere in the showing fatal, and exam facts tend to hide the gap in the element mentioned least.

United's silence does not matter. Sophie had to establish the material facts supporting each element of her claim, which include United's manufacture of the product to which the deceased was exposed, proximate causation, product defect, and damages. A nonmovant must produce outside evidence only when the movant's papers show that no genuine dispute exists, and the court need not decide whether the movant has met its ultimate burden of persuasion until the movant has discharged its initial burden of production.¹⁴ A nonmovant can therefore survive even on its pleadings alone when the movant has not met that initial burden.¹⁵

The same burden attaches to a defendant's affirmative defense. Suppose a city sued by a plaintiff named Slaven pleads the statute of limitations. To prove the defense at trial, the city would have to show when Slaven knew or should have known of the facts giving her a claim, the period of limitations, and the date the complaint was filed or served, depending on how the statute is tolled. It carries the same burden on a motion for summary judgment.¹⁶ Undisputed facts on all three would satisfy it, and a genuine dispute over any one would defeat the motion as surely as a missing element would.

The trial burden attaches claim by claim and defense by defense, and Rule 56(a) lets a movant seek judgment on part of a claim or defense.¹⁷ Where no genuine dispute exists on an issue within a claim, the court may resolve that issue without the jury and leave the disputed issues for trial.¹⁸ Damages show why this matters. The extent of damages, especially for pain and suffering, emotional distress, or punitive damages, is almost always genuinely disputed and must be ascertained by trial, so Slaven might obtain partial summary judgment on the city's liability and still have to prove her damages.¹⁹ The same logic lets one defendant stand in both positions in a single case: on the plaintiff's claim it may be able to point to a failure of proof, but on its own affirmative defense it must prove every element.

When the movant does make the required showing, the burden of production shifts. The nonmovant must then produce evidentiary materials demonstrating a genuine issue for trial or submit an affidavit requesting additional time for discovery,²⁰ responses taken up in the last subsection.

Exam Analysis Steps

A motion by a party who would carry the trial burden is best tested by confirming the burden first and then checking the proof element by element. The steps are these:

Identify the claim, defense, or part of one on which the movant seeks judgment, since the trial burden attaches claim by claim and defense by defense.
Determine who would carry the burden of persuasion on it at trial; if the movant would, treat the motion as a proof-of-the-elements motion.
List the elements and match each one to undisputed record material that the movant has cited.
Treat an element without such support as fatal, and deny the motion on that ground whatever the nonmovant filed.
For the supported elements, ask whether the record gives reason to believe that credibility may be determinative, and deny the motion if it does.

Movant Without the Trial Burden

A movant who would not bear the burden of persuasion at trial, typically a defendant answering the plaintiff's claim, has two alternatives. It can present undisputed facts that negate an essential element of the plaintiff's claim, which makes the motion a disproof-of-an-element motion. Or it can demonstrate that the record holds no evidence by which the plaintiff could establish an essential element, which makes it an absence-of-evidence motion.²³ Rule 56(c)(1)(B) authorizes the second route in terms, allowing a party to show that an adverse party cannot produce admissible evidence to support the fact.²⁴

Either route suffices because the plaintiff must prove every element of its claim, so the defendant need defeat only one. The routes differ in what the movant must put in the record. On the first, the movant offers its own evidence that the element is false, so its proof must be complete. On the second, the movant points to the plaintiff's record and shows that it cannot carry the element. A defendant holding documents that contradict the claim will usually offer them; a defendant facing a plaintiff who has produced nothing on an element can point to the silence.

The movant's burden has not always looked like this. Before 1938, summary judgment was available only under limited circumstances; the Federal Rules then made it available to all parties and claims, and the standards have shifted since.²⁶ The shift that matters here concerns what a defendant must show when the plaintiff carries the trial burden. Language in Adickes v. S.H. Kress & Co. invited the reading that the party moving for summary judgment must produce evidence showing the absence of a genuine issue of material fact, even on an issue where the nonmovant bears the burden of proof.²⁷ Applied to Celotex, that burden would have required it to establish conclusively that under no set of circumstances could Mr. Catrett ever have been exposed to a Celotex asbestos fiber, an overwhelming and likely impossible task.²⁸

Celotex Corp. v. Catrett rejected that reading. The Court held that the movant's burden may be discharged by “showing”—that is, pointing out to the district court—that there is an absence of evidence to support the nonmovant's case.²⁹ The Justices divided into several opinions, but all of them rejected the holding in Adickes that summary judgment is available only on the movant's conclusive proof that the nonmovant could not prevail. All agreed that the movant's burden of production depends on the burden of proof it would carry at trial.³⁰

Celotex did not treat Adickes as wrongly decided on its facts. The Court agreed that the 1963 amendment to Rule 56(e) was not designed to modify the burden of making the showing generally required by Rule 56(c), and it observed that on the showing made in Adickes the motion should have been denied.³¹ What Celotex removed was the demand that a movant disprove, with its own evidence, an element on which the opponent bears the trial burden. What it left in place was the movant's initial responsibility to show that the record fails to support that element.

That responsibility has teeth. A movant may rely on depositions, answers to interrogatories, and the like to show that the plaintiff has no evidence to prove his case, and hence that no factual dispute can exist. But it is not enough to move without supporting the motion in any way, or with a conclusory assertion that the plaintiff has no evidence.³² A movant that bases its motion on an absence of evidence must also account for the evidence the record does contain. As the Celotex dissent put it, such a movant “was not free to ignore supporting evidence that the record clearly contained” and had to attack the adequacy of that evidence as an initial matter; its failure to do so was a failure to discharge its initial burden of production, and summary judgment was therefore improper.³³ Celotex itself did not dispute that, if the plaintiff has named a witness to support her claim, summary judgment should not be granted without a showing that the witness's possible testimony raises no genuine issue of material fact.³⁴

The absence-of-evidence route also presumes that the nonmovant has had a fair chance to find evidence. The Celotex parties had conducted discovery, so no serious claim could be made that the nonmovant was railroaded by a premature motion. Any such problem can be handled by denying the motion, or continuing the hearing, if the nonmovant has not had an opportunity to make full discovery.³⁵ That protection now appears in Rule 56(d).³⁶

The route also gives a defendant an advantage that a directed-verdict motion at trial does not. At trial, a defendant whose motion is denied must proceed at once to present its own case and gains no strategic benefit from the attempt. At summary judgment, by contrast, the defendant can demand that the plaintiff produce a trial preview and use the added time before trial to prepare a more informed rebuttal.³⁷ Because the defendant is never at risk of an adverse final judgment at this stage, it owes no matching preview of its own evidence.³⁸

Exactly what a movant must do to show that the opponent has no evidence remains somewhat unclear. What is clear is that the court evaluates the evidence in light of the standard of proof that will apply at trial. In a libel suit requiring actual malice, for example, the defendant prevails on summary judgment unless the record contains sufficient evidence to establish a genuine dispute about a material fact under the clear and convincing standard, rather than the preponderance standard.³⁹ An exam answer should therefore avoid two shortcuts: the Adickes reflex that a defendant must always disprove the claim with affidavits, and the opposite assumption that a defendant wins simply by announcing that the plaintiff has no evidence.

Exam Analysis Steps

The form of the showing depends on which route the movant takes, so the motion is best tested by sorting it first and then checking the proof that route requires. The steps are these:

Confirm that the movant would not carry the burden of persuasion on the claim, or the part of it, that the motion targets; if it would, the proof-of-the-elements test governs instead.
Identify the essential element under attack and decide whether the movant relies on evidence negating it or on a showing that the record lacks evidence to establish it.
If the movant relies on negating evidence, ask whether its proof covers the whole element and accounts for the evidence already in the record.
If the movant relies on an absence of evidence, check that it points to record materials such as depositions or interrogatory answers and addresses any witness or document the opponent has already identified.
Treat the burden of production as shifting only when the showing is complete; if it is not, deny the motion without regard to the opposition.

The Nonmovant's Response

Once the movant has made a proper showing, the party who asserts that a fact is genuinely disputed must support the assertion. Rule 56(c)(1) offers two methods: citing particular parts of the record, such as depositions, documents, affidavits or declarations, admissions, or interrogatory answers,⁴² or showing that the materials the movant cites do not establish the absence of a genuine dispute.⁴³

The nonmovant's pleading cannot do this work. A party opposing a properly supported motion may not rest on the allegations or denials of its pleading but must set forth specific facts showing a genuine issue for trial.⁴⁴ If it introduces no outside evidence, the movant's evidence is taken as true, and in most cases summary judgment follows.⁴⁵ The shift is deliberate: it lets summary judgment pierce the pleadings and lets the court assess the sufficiency of the evidence.⁴⁶

What passes to the nonmovant is a burden of production, and it is modest. The nonmovant need not prove its case or outweigh the movant's evidence; it need only present evidence from which a jury might return a verdict in its favor.⁴⁷ A doubt with nothing in the record behind it does not count. Matsushita Electric Industrial Co. v. Zenith Radio Corp. held that the nonmoving party must do more than show some metaphysical doubt as to the material facts. Anderson v. Liberty Lobby, Inc. applied the same reasoning to the familiar argument that a jury might disbelieve the movant. In a conspiracy or libel case, a plaintiff cannot defeat a properly supported motion by merely asserting that the jury might, and legally could, disbelieve the defendant's denial; the plaintiff must offer concrete evidence from which a reasonable juror could return a verdict in its favor.⁴⁸

A nonmovant facing a properly supported motion has three ways to answer it, each suited to a different situation:

Cite specific record materials, such as affidavits, deposition testimony, or documents, that show the fact is genuinely disputed.
Show that the movant's own materials do not establish the absence of a genuine dispute.
Explain under Rule 56(d) why it cannot yet present facts essential to its opposition, so that the court may postpone or deny the motion.⁴⁹

The first answer is the most direct, and a promissory-note case shows its floor and its ceiling.

The borrower's declaration creates a genuine dispute because an affidavit or deposition testimony asserting forgery or duress is record evidence, even when it comes only from the party himself. He could also have answered by showing that the lender will be unable to produce any admissible evidence at trial that he signed.⁵⁰ What the court may not do is choose between the borrower's declaration and the lender's witness, because weighing credibility is the jury's role; it asks only whether there is reason to believe that credibility may be determinative.⁵¹

The answer has to supply the fact itself. A declaration that the borrower expects to prove forgery at trial would promise evidence without providing any, and a motion that previews the evidence the parties would put on at trial has nothing to preview in a promise.⁵² A state court rejected a plaintiff's argument of just this kind. She claimed that a city knew or should have known of her brother's alleged suicidal tendencies, and she argued that she could prove it at trial by cross-examining the police officers, so that their denials would establish the affirmative. The court held that a plaintiff must indicate that she can produce the quantum of evidence needed to reach the jury.⁵³

The second answer applies when the movant's own papers fall short, and then the nonmovant need offer nothing. The burden of production shifts only if the movant's papers show that no genuine dispute of material fact exists, and a nonmovant cannot be required to rebut a showing that was never made.⁵⁴ Celotex left that rule in place. The Court agreed that the 1963 amendment to Rule 56(e) was not designed to modify the burden of making the showing generally required by Rule 56(c), and it observed that on the showing before the Court in Adickes the motion should have been denied.⁵⁵ Celotex also describes the nonmovant's side once a proper showing exists: the nonmovant may oppose with any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.⁵⁶ Read together, the decisions divide the work. Adickes asks whether the movant has made the showing that triggers any duty to respond, and Celotex asks what the response must contain once the duty has arisen. A nonmovant who files nothing therefore loses only when the movant has already carried its initial burden, so an exam fact pattern in which the nonmovant files nothing calls first for an inspection of the movant's showing.

The third answer addresses a different problem: the nonmovant may lack the facts it needs because discovery has not reached them. A nonmovant who believes the motion came too early may move to defer consideration pending further discovery under Rule 56(d).⁵⁷ The Rule lets it meet its responsive burden by showing why it cannot present evidence in opposition at that time, and if the court finds the reasons valid it may deny or postpone the motion.⁵⁸ The showing is made by affidavit: a plaintiff who cannot present by affidavit the facts essential to her opposition must file an affidavit stating the reasons for that inability.⁵⁹ A request for additional time is one of the two things a nonmovant may submit once the burden has shifted.⁶⁰ The device protects only a nonmovant who uses it. A plaintiff who has had a full opportunity for discovery must still present affirmative evidence, even where the evidence is likely in the defendant's possession.⁶¹

Each answer raises a question about form: must the nonmovant's evidence already look the way it would at trial? Celotex says no. The nonmovant need not produce evidence in a form admissible at trial, and Rule 56 does not require a party to depose her own witnesses.⁶² The question is whether the evidence can be presented in admissible form. Mrs. Catrett offered a letter from her husband's former supervisor, Mr. Hoff, describing the asbestos products to which her husband had been exposed. As a letter it was hearsay, but Hoff could presumably testify to the same facts from personal knowledge if she called him at trial, which would overcome the objection.⁶³

Rule 56(c)(2) gives the movant a tool for policing that line: a party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.⁶⁴ The objection works like a trial objection adjusted for the pretrial setting, and the burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. If the proponent cannot, the court will not consider its evidence.⁶⁵ An affidavit or declaration offered in opposition must also be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.⁶⁶ Later sections take up each requirement.

A response that creates a genuine dispute does not win the case; it returns the dispute to the parties. The exchange of information that occurs so the court can rule on the motion may still help both sides shape their cases for trial.⁶⁷ The parties also remain free to settle by contract, with or without a mediator,⁶⁸ and if they cannot agree but both want a third party to decide, arbitration is one of the oldest alternatives to litigating in court.⁶⁹