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Rule 56 – Summary Judgment

May 14, 2021 | Civil Procedure, Ohio

(A) For party seeking affirmative relief. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part of the claim, counterclaim, cross-claim, or declaratory judgment action. A party may move for summary judgment at any time after the expiration of the time permitted under these rules for a responsive motion or pleading by the adverse party, or after service of a motion for summary judgment by the adverse party. If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court.
(B) For defending party. A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part of the claim, counterclaim, cross-claim, or declaratory judgment action. If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court.
(C) Motion and proceedings. The motion together with all affidavits and other materials in support shall be served in accordance with Civ. R. 5. Responsive arguments, together with all affidavits and other materials in opposition, and a movant’s reply arguments may be served as provided by Civ.R. 6(C). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
(D) Case not fully adjudicated upon motion. If on motion under this rule summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court in deciding the motion, shall examine the evidence or stipulation properly before it, and shall if practicable, ascertain what material facts exist without controversy and what material facts are actually and in good faith controverted. The court shall thereupon make an order on its journal specifying the facts that are without controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(E) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
(F) When affidavits unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
(G) Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.

Ohio. Civ.R. 56

Effective:July 1, 1970; amended effective July 1, 1976;July 1, 1997;July 1, 1999;July 1, 2015; amended April 24, 2019, effective July 1, 2019.

Proposed Staff Notes (2019 Amendment)

Division (C)

Recognizing that provisions of Civ.R. 6(C) govern the requirements for service of responses to motions for summary judgment and for service of a movant’s reply to such responses, the amendment to Civ.R. 56(C) eliminates the prior provisions addressing those matters.

Division (C) is also amended to specify that the materials in support of a motion for summary judgment shall be served when the motion is served.

Staff Note (July 1, 2015 Amendment)

Consistent with a similar amendment to Civ. R. 6(C), the amendment to Civ. R. 56(C) deletes the reference in the prior rule to “the time fixed for hearing.” The amendment also specifies, in the absence of a local rule or court order specifying a time for responding to a motion for summary judgment, a fallback time of twenty-eight days after service of the motion within which to serve responsive arguments and opposing affidavits. In the absence of a local rule or court order addressing replies, the amendment also permits the movant to serve reply arguments within fourteen days after service of the adverse party’s response. The time for filing the motion, responses, and replies is governed by Civ. R. 5(D), again in the absence of a local rule or court order specifying a different time for filing. The rule applies only in the absence of a local rule or court order providing times for briefing motions, whether or not the rule or order specifically addresses summary judgment motions, and does not supersede or affect the application of local rules or orders addressing briefing on motions.

Staff Note (July 1, 1999 Amendment)

Rule 56(C) Motion and proceedings thereon

The prior rule provided that “transcripts of evidence in the pending case” was one of the items that could be considered in deciding a motion for summary judgment. The 1999 amendment deleted “in the pending case” so that transcripts of evidence from another case can be filed and considered in deciding the motion.

Staff Note (July 1, 1997 Amendment)

Rule 56(A) For party seeking affirmative relief.

The 1997 amendment to division (A) divided the previous first sentence into two separate sentences for clarity and ease of reading, and replaced a masculine reference with gender-neutral language. The amendment is grammatical only and no substantive change is intended.

Rule 56(B) For defending party.

The 1997 amendment to division (B) added a comma after the “may” in the first sentence and replaced a masculine reference with gender-neutral language. The amendment is grammatical only and no substantive change is intended.

Rule 56(C) Motion and proceedings thereon.

The 1997 amendment to division (C) changed the word “pleading” to “pleadings” and replaced a masculine reference with gender-neutral language. The amendment is grammatical only and no substantive change is intended.

Rule 56(E) Form of affidavits; further testimony; defense required.

The 1997 amendment to division (E) replaced several masculine references with gender-neutral language. The amendment is grammatical only and no substantive change is intended. Rule 56(F) When affidavits unavailable.

Rule 56(F) When affidavits unavailable.

The 1997 amendment to division (F) replaced several masculine references with gender-neutral language. The amendment is grammatical only and no substantive change is intended.

Rule 56(G) Affidavits made in bad faith.

The 1997 amendment to division (G) replaced a masculine reference with gender-neutral language. The amendment is grammatical only and no substantive change is intended.