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Section 966 – Motion for summary judgment; procedure

May 13, 2021 | Civil Procedure, Louisiana

A.

(1) A party may move for a summary judgment for all or part of the relief for which he has prayed. A plaintiff’s motion may be filed at any time after the answer has been filed. A defendant’s motion may be filed at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
(3) After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.
(4) The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court.
B.

Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:

(1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.
(3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.
(4) If the deadline for filing and serving a motion, an opposition, or a reply memorandum falls on a legal holiday, the motion, opposition, or reply is timely if it is filed and served no later than the next day that is not a legal holiday.
C.

(1) Unless otherwise agreed to by all of the parties and the court:

(a) A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date.
(b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing.
(2) For good cause shown, the court may order a continuance of the hearing.
(3) The court shall render a judgment on the motion not less than twenty days prior to the trial.
(4) In all cases, the court shall state on the record or in writing the reasons for granting or denying the motion. If an appealable judgment is rendered, a party may request written reasons for judgment as provided in Article 1917.
D.

(1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
(2) The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.
E. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties.
F. A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.

G. When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or non-party is not negligent, is not at fault, or did not cause in whole or in part the injury or harm alleged, that party or non-party shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non-party . During the course of the trial, no party or person shall refer directly or indirectly to any such fault, nor shall that party or non-party’s fault be submitted to the jury or included on the jury verdict form.

H. On review, an appellate court shall not reverse a trial court’s denial of a motion for summary judgment and grant a summary judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument.

Comments – 2015

(a) Subparagraphs (A)(1) and (2) do not change the law.
(b) Subparagraph (A)(3) does not change the law. It makes clear that a motion for summary judgment should be heard and granted only after there has been an opportunity for adequate discovery. See Broussard v. Winters, 123 So.3d 902 (La. App. 3d Cir. 2013). A continuance should be granted to a party who has not had adequate time to conduct discovery relating to the issues in the motion. The legal standard to be used by the court in granting a motion for summary judgment remains unchanged.
(c) Subparagraph (A)(4), which is new, contains the exclusive list of documents that may be filed in support of or in opposition to a motion for summary judgment. This Subparagraph intentionally does not allow the filing of documents that are not included in the exclusive list, such as photographs, pictures, video images, or contracts, unless they are properly authenticated by an affidavit or deposition to which they are attached. Although a memorandum is not a pleading or evidence, it is a proper document that can be used by a party to advance his arguments in support of or in opposition to the motion. See, e.g., Meaux v. Galtier, 972 So.2d 1137 (La. 2008). An opinion of the medical review panel cannot be filed in support of or in opposition to the motion unless it is properly authenticated and attached to the affidavit or deposition. Article 1458 requires that interrogatories be answered under oath, and only answers that are made under oath may be filed in support of or in opposition to a motion for summary judgment. This Subparagraph continues the rule that no oral testimony shall be allowed at a hearing on a motion for summary judgment, even if all parties agree. See Mapp Construction, LLC v. Amerisure Mutual Insurance Co., 143 So.3d 520 (La. App. 1st Cir. 2014). All supporting documents may be filed electronically if provided for by local rules or the clerk of court.
(d) Subparagraphs (B)(1), (B)(2) and (B)(3) are new. They establish the time periods for filing or opposing motions for summary judgment. These provisions supersede Rule 9.9 of the District Court Rules but at the same time recognize the ability of the trial court and all of the parties to enter in to a case management or scheduling order or other order to establish deadlines different from those provided by this Article. Nevertheless, these orders may not shorten the period of time allowed for a party to file or oppose a motion for summary judgment under this Article. The Article makes clear that all motions, memoranda, and supporting documents shall be served on all parties and filed with the clerk of court. This Article continues the rule that no new documents may be filed with a reply memorandum. Unless provided otherwise by an order agreed upon by all of the parties and the court, the motion, any opposition, and any reply shall be served by the methods provided for in Article 1313 (e.g., mailing, delivering a copy, or by electronic means).
(e) Subparagraph (B)(4) is new. This Subparagraph follows Article 5059 and its interpretation in Becnel v. Northrop Grumman Ship Sys., Inc., 18 So.3d 1269 (La. 2009). It establishes the rule that, if the date for filing the motion, opposition, or reply memorandum falls on a legal holiday, the party has until the next day that is not a legal holiday to file the pleading and supporting documents. This is significant because the trial court has vast discretion whether to consider late-filed affidavits or documents in support of an opposition. See, e.g., Buggage v. Volks Constructors, 928 So.2d 536 (La. 2006).
(f) Subparagraphs (C)(1) and (2) are new. A motion for summary judgment shall be set for hearing more than thirty days after filing. The notice of the date of the hearing shall be served in accordance with Article 1313(C) (i.e., by certified mail or commercial courier) or 1314 (i.e., by the sheriff) to ensure that a party receives timely notice of the hearing date. The hearing on the motion shall be set at least thirty days prior to the trial date.
(g) Subparagraph (C)(2) establishes the rule that if a party has a good cause for failing to meet this deadline, the court may order a continuance of the hearing on the motion so that the parties and the court can comply with the applicable deadlines.
(h) Subparagraph (C)(3), which is new, changes the law. This time period requires the court to decide a motion for summary judgment sufficiently in advance of the trial to allow a party to apply for supervisory writs without interrupting the trial setting.
(i) Subparagraph (C)(4) is new. The court shall state either on the record or in writing the reasons for granting or denying the motion. Nevertheless, the court does not have to address every reason or argument, and the form and detail of the reasons are left to the discretion of the court. Cf. Federal Rules of Civil Procedure, Rule 56(a).
(j) Subparagraph (D)(1) does not change the law. It is consistent with Section 4 of Acts 1997, No. 483, which declares that “all cases inconsistent with” Hayes v. Autin, 685 So.2d 691 (La. App. 3d Cir. 1996) are legislatively overruled. Hayes holds that Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), correctly states the law for our summary judgment procedure. In accordance with Celotex and Babin v. Winn-Dixie Louisiana Inc. 764 So.2d 37 (La. 2000), once the motion for summary judgment has been properly supported by the moving party, the non-moving party must produce evidence of the existence of a material factual dispute or demonstrate that the mover is not entitled to judgment as a matter of law.
(k) Subparagraph (D)(2) maintains most of the recent legislative changes to this Article, which change the law. Subparagraph (D)(2) makes clear that the court can consider only those documents filed in support of or in opposition to the motion. This rule differs from Federal Rules of Civil Procedure, Rule 56(c)(3), which allows the court to consider other materials in the record. This Subparagraph also maintains the requirement that any objection to any supporting document must be raised in a timely-filed opposition or reply memorandum. The provision changes prior law by specifically removing the motion to strike as a means of raising an objection to a document offered by an adverse party in support of or in opposition to a motion for summary judgment and does not allow a party to file that motion. This Subparagraph also makes explicit that an oral objection to any document cannot be raised at the hearing on the motion for summary judgment and that a court must consider all documents to which there is no objection. This Subparagraph adds the provision that the court shall specifically state either on the record or in writing what evidence it deems to be inadmissible or declines to consider. The court may, in accordance with Code of Judicial Conduct Canon 3, make a reasonable effort for a self-represented litigant to be fairly heard, attempt to make the legal concepts understandable, and provide information about the proceeding and the evidentiary and foundational requirements.
(l) Paragraphs E and F do not change the law, except that Paragraph F makes clear that, in deciding a motion for summary judgment, a court can consider only the issues raised in the motion or opposition filed by the parties. The court cannot rule on issues not raised by the parties.
(m) Paragraph G, which is new, adopts the rule from prior Article 966(G)(1) that if a person is found in a summary judgment not to be negligent, not at fault, not to have caused the injury or harm, that person cannot be considered in any allocation of fault. The requirement of former Article 966(G)(2) is removed. The trial judge does not have to specifically provide in the judgment on the motion that the person is not to be part of any allocation of fault at trial for this rule to apply. The Paragraph also establishes the rule that, at trial, evidence of that person’s fault shall not be admitted, nor shall that person’s fault be referred to by any person or be submitted to the jury on the jury verdict form.
(n) Paragraph H is new. This provision requires the appellate court to assign the matter for briefing and to permit the parties an opportunity to request oral argument if the court intends to reverse a lower court decision that denied a motion for summary judgment. If a summary judgment is granted at the trial level dismissing a party or a case, the losing party is entitled to an appeal. See Article 1915(A). However, under prior law, if the appellate court, on a supervisory writ, reversed the lower court and granted the motion for summary judgment dismissing a party or the case, the losing party was denied an appeal. This Paragraph changes the law and provides a party against whom summary judgment may be rendered at the appellate level an opportunity to brief his case and to request oral argument on his case.

La. C.P. § 966

Amended by Acts 2015, No. 422,s. 1, eff. 1/1/2016.
Amended by Acts 2014, No. 187,s. 1, eff. 8/1/2014.
Amended by Acts 2013, No. 391,s. 1, eff. 8/1/2013.
Amended by Acts 1966, No. 36, §1; Acts 1983, No. 101, §1, eff. June 24, 1983; Acts 1984, No. 89, §1; Acts 1992, No. 71, §1; Acts 1996, 1st Ex. Sess., No. 9, §1, eff. May 1, 1996; Acts 1997, No. 483, §§1, 3, eff. July 1, 1997; Acts 2001, No. 771, §1; Acts 2003, No. 867, §1; Acts 2010, No. 690, §1; Acts 2012, No. 257, §1; Acts 2012, No. 741, §1.