Advisory Note – November 2011

The amendment to Rule 56(d) establishes that a fact admitted or not opposed by any party solely for purposes of summary judgment is not deemed admitted for any other purpose if the motion for summary judgment is denied. The purpose of the amendment is to make it unnecessary to controvert facts for purposes of summary judgment solely because of concern about the possible preclusive effect of any admission of fact at trial or in other subsequent proceedings. The rule amendment does not preclude the issuance of a partial summary judgment order.

Advisory Note August 2009

This amendment to Rule 56 [j] is designed to assure that, prior to entry of any summary judgment in a foreclosure action, the trial court reviews the record and determines that, as required by law, the notice and service requirements of law have been complied with and any available mediation has been completed or has been waived. In addition, when mediation is mandatory and the defendant has appeared but not waived mediation, this amendment sets the deadline for opposing a motion for summary judgment ten days following the filing of the mediator’s report. For some counties, foreclosure mediation may not be available or required until January 1, 2010.

Advisory Committee Note April 2, 2007

The purpose of these amendments is to make Rule 56 practice more uniform and efficient and, in particular, to eliminate the practice of filing motions to strike in order to raise or preserve objections to factual assertions contained in statements of material facts filed in connection with motions for summary judgment. This practice has led to a situation where motions for summary judgment, which are often complicated enough in their own right, have spawned multiple subsidiary motions and needless additional filings in the form of motions to strike and objections thereto.

The second major change is that a new last sentence in subsection (d) explicitly states that facts admitted for summary judgment shall have no preclusive effect at trial upon any third party who did not participate in the summary judgment proceeding.

There is a related concern among practitioners that a court may not grant partial summary judgment but will instead determine factual issues at the summary judgment stage with preclusive effect at trial. The Committee did not amend the rule to address this concern for two reasons. First, the existing rule makes clear that such a finding under subdivision (d) occurs only after the court “by interrogating counsel” determines those facts “without substantial controversy,” a finding that could not be made if counsel in this process indicates that facts are disputed. Second, the amended rule states that there is no such preclusive effect on third parties for facts admitted on summary judgment. The Committee also observed that the procedure of subdivision (d) appears to be used rarely if at all. Until real problems arise, there seems to be little need to amend the rule to eliminate a process that could potentially be useful if properly employed.

The rule continues to provide that a party opposing summary judgment must admit, deny, or qualify each statement in the moving party’s statement of material facts. Because motions to strike assertions contained in statements of material fact have been eliminated, the amended rule provides that parties may also object to factual assertions, denials, or qualifications in their statements of material facts. The grounds for such objections are specified in subparagraph (i).

The reply statement previously was limited only to the so-called additional facts in the opposing statement of material facts, but as part of this amendment the reply statement may now also be used to object to denials or qualifications in the Rule 56(h)(2) statement submitted by the party opposing summary judgment. The objection should be limited to a short and concise statement of the basis for the objection with a statement of authority or a record citation. The objection, however, is not an excuse for not responding to the factual statement. The statement should still be admitted, denied or qualified subject to the objection.

These amendments also provide that if objections are raised for the first time in a reply statement of material facts, the opposing party may file a response to the objections within seven days. Such response, however, is to be strictly limited to a brief statement of why the objection is invalid along with any supporting authority or record citations.

In instances where parties admit certain facts but argue that those facts are not material because they do not affect the outcome of the motion, they should raise their arguments with respect to materiality in their memoranda of law rather than in their statements of material facts. In short, the statements of fact should be precisely what the rule requires: “short and concise.” Rule 56(h)(1).

Where a party raising an objection to factual assertions or disputes contained in a statement of material facts wishes to direct the court’s attention to portions of the record which support the objection, the party shall set forth citations to the relevant portions of the record in its opposing or reply statement of facts. Thus, all citations to the record should be found in the original statement of material facts, in the opposing statement of material facts, or in the reply statement of material facts. On a motion for summary judgment, the court is not obliged to review any portions of the record that are not identified in any of the statements of material fact filed in connection with the motion.

The parties may bring any unusual issues presented by a motion for summary judgment to the attention of the court in their memoranda of law or as otherwise permitted by the rules without filing motions to strike. For instance, if a statement of material facts cites to documents or witnesses that were requested but not disclosed during discovery, the opposing party may, in addition to raising an objection to this effect, also bring the discovery violation to the attention of the court by requesting a conference pursuant to Rule 26(g) while the summary judgment motion is pending.

Advisory Committee Notes

January 1, 2004

The amendments to M.R. Civ. P. 56(h)(1), (2), and (3) continue the policy of conforming summary judgment practice under M.R. Civ. P. 56 with practice under Local Rule 56 of the United States District Court for Maine. The amendments are nearly identical to amendments to Local Rule 56 effective July 1, 2003. The only difference is that the amendment to Rule 56(h)(1) is added to the last sentence, rather than the middle sentence, of the Rule to make the wording of the amendment more precise.

The purpose of these amendments is to clarify that:

1. Each separate fact asserted in a supporting or opposing statement of material fact must be stated in a separately numbered paragraph, and

2. Responses must also be in separately numbered paragraphs and, if a fact is admitted, the admission shall be stated and nothing more. If a fact is denied or qualified, the denial or qualification must be supported by a record citation.

These amendments will make it easier to determine what facts are stated, what facts are admitted, denied or qualified, and what facts are unopposed and may be deemed admitted under M.R. Civ. P. 56(b)(4).

Advisory Committee’s Notes

July 1, 2001

The amendment, striking reference to Rule 7(d) and substituting the reference to subdivision (h) makes a correction necessitated by moving of the statement of material fact requirements from Rule 7(d) to Rule 56(h).

Advisory Committee’s Notes

January 1, 2001

The requirement that motions for summary judgment be supported or opposed by statements of material fact was originally added as Rule 7(d). Its provisions were based on then existing Rule 19(b) of the Local Rules for the United States District Court for Maine in order to have practice similar in Federal and State courts. Experience in summary judgment motion practice indicated need for some clarification of the statement of material fact requirement. Accordingly, in 1999, the Local Federal Rule regarding statements of material fact was amended and renumbered as Rule 56 of the Local Rules. This amendment conforms state practice for statements of material fact to the present Federal Local Rule 56, and moves the statement of material fact requirements back into Rule 56(h). The important changes from Rule 7(d):

– Emphasize that each statement of material fact must be short, concise and supported by a record citation. Pursuant to Rule 56(e), the record citation must be to facts “as would be admissible in evidence.”

– Require that opposing statements reference each numbered paragraph of the moving party’s statement and admit, deny or qualify those facts, with denials or qualifications supported by record references. Opposing statements may add additional statements of material fact supported by record references.

– Allow a properly supported responding statement by the moving party.

– Specify that record citations must be to specific pages or paragraphs of the record. General references (e.g. “See Deposition Pages 8-25,” “See Plaintiff’s Affidavit”) are no longer sufficient and may be disregarded.

– State that the court has no independent duty to search the record beyond the parts specifically referenced in the parties’ statements of material facts.

Advisory Committee’s Notes 1999

The last two sentences of subdivision (a) have been eliminated in view of the corresponding replacement of Rule 16. The time for filing and disposing of motions, including motions for summary judgment, is now governed by the scheduling order and pretrial order issued under new Rule 16.

Advisory Committee’s Notes February 15, 1996

Rule 56(a) is amended for conformity with the simultaneous amendment of Rule 16(c)(2) requiring post-discovery summary judgment motions in fast-track cases to be filed within 60 days after completion of discovery or within 21 days after filing of such a motion by an opponent. For other actions, the motion must be filed when specified in a pretrial order under Rule 16, subject to the continuing requirement that filing not delay the trial.

Advisory Committee’s Notes

1990

Rule 56(c) is amended to strike provisions governing timing of filing and opposition to motions for summary judgment. The timing for such motions is now subject to the provisions of Rule 7, which has been simultaneously amended. See Advisory Committee’s Note to that amendment. The court’s decision under Rule 56(c) is now closely tied to the requirement of new Rule 7(d) that the parties file statements of material fact with or in opposition to a summary judgment motion. In ruling on the motion, the court is to consider only the portions of the record referred to, and the material facts set forth, in the Rule 7(d) statements.

Advisory Committee’s Notes

1985

Rule 56(c) is amended to change from 10 to 30 days the time before hearing by which a motion for summary judgment must be filed and to require that the adverse party serve opposing affidavits at least 7 days prior to hearing unless permitted to make service at a later time on a showing of good cause. The amendment is applicable in the District Court by virtue of its incorporation in M.D.C. Civ. R. 56.

The amendment is intended to cure a problem which the short filing times in the original rule have created. These filing times frequently result in disruption of the summary judgment hearing process, because the judge has not had adequate time to review memoranda and affidavits filed at the last minute in opposition to the motion. This difficulty is in part caused by an inadvertent conflict between Rule 56(c) and the 1981 addition of Rule 7(b)(3) requiring a memorandum in opposition to a motion to be filed within 10 days after service of the motion. The 30-day time limit in the present amendment will assure that the Rule 7(b)(3) memorandum is before the court well before the hearing date. The 7-day time period for filing affidavits will further assist in eliminating the last-minute burden on the judge. Where difficulties in obtaining affidavits in time arise, the good cause exception in the amended rule may be invoked by motion for enlargement of the time period under Rule 6(b).

Advisory Committee’s Note

December 31, 1967

This amendment is designed to prevent delaying tactics and reflects present practice. The courts, using their inherent powers, have in practice interpreted the rule in this manner. This amendment simply makes it clear that they have the power to do so and conforms to the language of Rule 12(c).

Explanation of Amendment

(Nov. 1, 1966)

This amendment was taken from a 1963 amendment to F.R. 56(e). It is trivial in nature. The caption is changed to make it more informative, and “answers to interrogatories” is inserted as one of the means by which summary judgment affidavits may be supplemented or opposed. Other 1963 changes in F.R. 56(e) were in M.R.C.P. 56(e) as originally promulgated.

Reporter’s Notes

December 1, 1959

This rule is substantially the same as Federal Rule 56. It is an innovation in Maine procedure, but it represents established practice in over 30 states. Rule 56(c) is the heart of the rule. The third sentence states the guiding principle. The key words are that a summary judgment will be entered upon a showing “that there is no genuine issue as to any material fact.” In making this determination the court considers pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. The federal rule does not include answers to interrogatories as a basis for summary judgment, but their inclusion reflects the federal case law. American Airlines v. Ulen, 186 F.2d 529 (D.C.Cir. 1949 ). If the motion is heard on the pleadings alone, it serves the function of the old demurrer. The affidavits, if any, must be on personal knowledge and set forth such facts as would be admissible in evidence. Summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages