Arizona

Family Law

Family Law

Rule 79 – Summary Judgment

(a)Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court must grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
(b)Time to File a Motion.

(1)Claimant. A claimant may move for summary judgment only after:

(A) the date when a responsive pleading is due from the party against whom summary judgment is sought; or
(B) the filing of a Rule 29(a)(6) motion to dismiss or a summary judgment motion by the party against whom summary judgment is sought.
(2)Other Parties. Any other party may move for summary judgment at any time after the action is commenced.
(3)Filing Deadline. A summary judgment motion may not be filed later than the dispositive motion deadline set by the court or local rule, or absent such a deadline, 90 days before the date set for trial.
(c)Procedures.

(1)Oral Argument. On timely request by any party, the court must set oral argument, unless it determines that the motion should be denied or the motion is uncontested. The court may set oral argument even if not requested by a party.
(2)Opposition and Reply. An opposing party must file a response and any supporting materials within 30 days after the motion is served. The moving party must serve any reply memorandum and supporting materials 15 days after the response is served.
(3)Supporting and Opposing Statements of Fact.

(A)Moving Party’s Statement. The moving party must set forth, in a statement separate from the supporting memorandum, the specific facts relied on in support of the motion. The facts must be stated in concise, numbered sections. The statement must cite the specific part of the record where support for each fact may be found.
(B)Opposing Party’s Statement. An opposing party must file a statement in the form prescribed by subpart (c)(3)(A), specifying:

(i) the numbered sections in the moving party’s statement that are disputed; and
(ii) those facts that establish a genuine dispute or otherwise preclude summary judgment in favor of the moving party.
(C)Joint Statement. In addition, or as an alternative, to submitting separate statements under subparts (c)(3)(A) and (B), the moving and opposing parties may file a joint statement in the form prescribed by this rule, setting forth those facts that are undisputed. The joint statement may provide that any stipulation of fact is not binding for any purpose other than the summary judgment motion.
(4)Objections to Evidence. A party objecting to the admissibility of evidence submitted by another party must raise the objection in the party’s response or reply, or state the objection concisely in an opposing statement of facts, and not in a separate motion to strike.
(5)Affidavits. An affidavit used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If an affidavit refers to a document or part of a document, a properly authenticated copy must be attached to or served with the affidavit.
(6)Other Materials. Affidavits may be supplemented or opposed by deposition excerpts, interrogatory responses, admissions, additional affidavits, or other materials that would be admissible in evidence.
(d)When Facts Are Unavailable to the Opposing Party; Request for Rule 79(d) Relief; Expedited Hearing.

(1)Requirements. If an opposing party cannot present evidence essential to justify the party’s opposition, that party may file a request for relief and expedited hearing. The request must be titled: “Request for Rule 79(d) Relief and for Expedited Hearing.” The request must be accompanied by:

(A) a supporting affidavit establishing specific and adequate grounds for the request and addressing, if applicable, the following:

(i) the particular evidence beyond the party’s control;
(ii) the location of the evidence;
(iii) what the party believes the evidence will reveal;
(iv) the methods to be used to obtain it;
(v) an estimate of the amount of time the additional discovery will require; and
(vi) a good faith consultation certificate complying with Rule 9(c).
(2)Effect. Unless the court orders otherwise, a request for relief under subpart (d)(1) does not by itself extend the date for an opposing party to file a responsive memorandum and separate statement of facts under section (c).
(3)Responses to Request. Unless the court orders otherwise, the party moving for summary judgment is not required to respond to a section (d) request for relief. If such a party elects to file a response, it must be filed not later than two days before any hearing scheduled to consider the requested relief.
(4)Expedited Hearing. The court must hold an expedited hearing, in person or by telephone, within 7 days after a request is filed in compliance with subpart (d)(1).

If the court’s calendar does not allow a hearing within 7 days, the court should set a hearing date at the earliest available time allowed by the court’s calendar.

(5)Relief. When a request is filed in compliance with subpart (d)(1), the court may, after holding a hearing:

(A) defer considering the summary judgment motion and allow time to obtain affidavits or to take discovery before a response to the motion is required;
(B) deny the requested relief and require a response to the summary judgment motion by a date certain; or
(C) issue any other appropriate order.
(e)Failing to Properly Oppose a Motion. When a summary judgment motion is made and supported as provided in this rule, an opposing party may not rely merely on allegations or denials of that party’s own pleading. The opposing party must, by affidavits or as otherwise provided in this rule, set forth specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment, if appropriate, shall be entered against that party.
(f)Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:

(1) grant summary judgment for a nonmoving party;
(2) grant summary judgment on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying material facts that may not be genuinely in dispute.
(g) Declining to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, or if judgment is not rendered on the whole case under section (f), the court may enter an order identifying any material fact that is not genuinely in dispute and treat the fact as established in the case.
(h) Affidavit Submitted in Bad Faith. If a Rule 79 affidavit is submitted in bad faith or solely for delay, the court-after notice and a reasonable time to respond-may order the submitting party to pay the other party the reasonable expenses, including attorney fees, incurred as a result, or may impose other appropriate sanctions.

Ariz. R. Fam. Law. proc. 79

Added Oct. 19, 2005, effective Jan. 1, 2006. Amended Sept. 5, 2007, effective Jan. 1, 2008; Sept. 3, 2009, effective Jan. 1, 2010; amended effectiveJan. 1, 2019; amended Aug. 27, 2019, effective Jan. 1, 2020.