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Rule 56.05 – Falling to Properly Support or Address a Fact

May 13, 2021 | Civil Procedure, Minnesota

If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56.03. the court may:

(a) give an opportunity to properly support or address the fact:
(b) consider the fact undisputed for purposes of the motion:
(c) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it: or
(d) issue any other appropriate order.

Minn. R. Civ. P. 56.05

Amended effective July 1, 2015; amended effective July 1, 2018.
Advisory Committee Comment–2015 Amendments
Rule 56.05 is amended in two ways. The first is not substantive in nature or intended effect. The replacement of “papers” with “documents” is made throughout these rules, and simply advances precision in choice of language. Most documents will not be filed as “paper” documents, so paper is retired as a descriptor of them.
The second change is substantive in nature, and expressly implements a new statute directing the courts to consider accepting documents without notarization if they are signed under the following language: “I declare under penalty of perjury that everything I have stated in this document is true and correct.” Minn. Stat. § 358.116(2014) (codifying 2014 Minn. Laws ch. 204, § 3 ). The statute allows the courts to require specifically by rule that notarization is necessary, but the difficulty in accomplishing and documenting notarization for documents that are e-filed and e-served militates against requiring formal notarization. Accordingly, summary judgment affidavits may be signed by the party under penalty of perjury, so long as the appropriate language is included above the party’s signature. The rule also requires inclusion of the date of signing and the county and state where signed to provide information necessary to establish the fact and venue of possible perjury; this information is otherwise provided by notarization. Rule 15 of the Minnesota General Rules of Practice provides that documents signed in accordance with its terms constitute “affidavits.”