Motion for Summary Judgment Sample

Motion for Summary Judgment is a request that a court rules on a case even if the case hasn’t been to trial. The benefit of Summary Judgments is that they save clients a ton of money, especially in civil litigation outside of family law cases. In the family law arena, their usage is fairly restricted to parentage cases where one party disputes which father belongs to the child. In these cases, a motion for summary judgement is brought to have the court order or “declare” that the father is, indeed, the father. This usually occur after a DNA test of both the child and the father. These motions are rarely contested; however, it does happen on occasion. Usually, if DNA is disputed by the mother, she has to get someone else declared the father.  If the father is disputing the DNA, he probably has something mentally wrong with him or a serious need to try to avoid child support at all costs. The opportunity to lodge a motion arises when there is “no genuine issue of material fact.” What this means is that there is no real basis for the parties to disagree on what the facts in the case are. In civil litigation cases, this isn’t always true, which means that one party does dispute the facts.

When that happens, the moving party usually tries to claim that the fact that the responding party is disputing isn’t “material.” Once the triggering point is met, then the moving party is entitled to “judgment as a matter of law.” Which usually means that they should win. Moving back to family law cases, we would see such motions when paternity has been established, and we want the court to order Mr. X is the father. Outside of those limited circumstances, motions for summary judgments are fairly rare in family law cases.

Contents of a motion for summary judgment

A case can be disposed of prior to trial when there is no evidence for the claims alleged or when there is no issue of material fact, and the movant is entitled to judgement as a matter of law. When a case is disposed for either of those reasons, it is called a summary judgment. Governed by TRCP 166a, there are two types, the traditional summary judgment and the no evidence summary judgment. Tex. R. Civ. P. 166a.

According to the American Supreme Court, a motion for summary judgment is appropriate if reasonable people agree with the conclusion based on the evidence of the case. The court also advised appellate courts not to “disregard the evidence supporting the motion,” also adding that “although a reviewing court must consider all the summary judgment evidence on file, in some cases that review will effectively be restricted to the evidence contrary to the motion.” City of Keller v. Wilson, 168 S.W.3d 816, 824-8

Sample of a motion for summary judgment

            Rule 166a (c) concerns motion and proceedings thereon. It provides that the motion for summary judgment shall state the specific grounds thereof. Further, that except on leave of court, with notice to opposing counsel. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. Also, no oral testimony shall be received at the hearing.

The provision also provides that a judgement for summary judgment shall be rendered if the deposition transcripts, interrogatory answers, and other discovery responses references or set forth in the motion or response. Further, the admissions, pleadings, stipulations and affidavits of the parties, and authenticated or certified public record should be filed in time for the hearing.

Rule 166a (d) concerns appendices, references and other use of discovery not otherwise on file. It provides that the discovery products that are not on file with clerk can be used as evidence for the motion of summary judgment. These documents should also be served on all the parties along with the statement of intent to utilize the specified discovery as proof for summary judgment.

The motion of summary judgment

Since a motion for summary judgment is essentially a trial on paper, what is written and how it is written is crucial to its success. Summary judgments are more likely to win if they tell a compelling, persuasive story and include a clear analysis of the facts supporting that story.

In addition to good, evidence-based story-telling, the summary judgment motion should also include a succinct title and introduction, which should address whether or not the party is filing a Traditional Summary Judgment as a plaintiff (Rule 166a(a)) or as a defendant (Rule 166a(b)); what kind of summary judgment is requested, Traditional, No Evidence, or a combination of both; and whether the party is seeking a partial or final summary judgment.

The title and introduction should be followed by the legal and factual grounds for each claim in the case. The motion must also include arguments and authorities to support each claim. Finally, sufficient evidence to support each claim is essential to the success of the summary judgment.

The time frame applicable to a motion of summary judgment

According to Rule 166a, a motion for summary judgment should be filed and served no less than 21 days before the hearing. Any response to the motion for summary judgment is due no less than 7 days before the hearing. A party may file a reply to a response, but there is no set time limit for doing so. If the claim is strong and evidence solid, and if the defendant fails to provide evidence to refute the plaintiff’s claims, the motion may be granted as long as “adequate time for discovery” has been provided.

How to start a motion for summary judgement

The movant must file their motion for summary judgment with the court by a specific date. Depending on the state, this deadline is set forth in the case scheduling order (an order signed by the court listing various deadlines) or the local rules of civil procedure.

Contents of a motion of summary judgment include the motion which is a written request for the court to rule in the favor of the movant. The second part is a memorandum which supports the motion. It explains why the court should rule in favor of the movant.

Response to a motion for summary judgment

The non-moving party always has an opportunity to respond to the motion for summary judgment. This is called a “response” or an “opposition motion.” The non-moving party only has a certain amount of time to file a response. This amount of time varies by state, but is usually around 21 days. Like the original motion, the non-moving party’s response typically consists of two parts. These include the motion which entails a written request for the court to rule in the non-moving party’s favor. The second is a memorandum that explains why the court should rule in the non-moving party’s favor.

In responding to a motion for summary judgment, the non-moving party must do 1 of 2 things:

  • Show that there’s a disputed fact (this can be done by producing evidence), or
  • Accept that there are no disputed facts, but dispute the movant’s recitation of the law.

If the non-moving party doesn’t believe they’ve had enough time to uncover the facts of the case, the party can ask the court for a “continuance” to permit additional discovery. The court has a great deal of discretion in determining whether to grant such a request.

The purpose of motion for summary judgment hearing

Once the motion and response has been filed, the judge will read both and then preside over a hearing. At the hearing, each party will be given a certain amount of time to reiterate their argument in front of the judge. The judge may ask some questions and at the end of the hearing the judge will grant or deny the motion. Sometimes the judge will require additional time to make a decision and the parties will be notified days or weeks later.

A hearing on a motion for summary judgment doesn’t involve oral testimony. Because of this, some lawyers don’t bother taking their clients to the hearing. Other lawyers like to take their clients. The decision usually depends on the lawyer, the client, and the nature of the case. A motion for summary judgment can be a very effective tool when used properly. However, it also requires a lot of time and money in order to draft the documents and participate in the hearing. An experienced attorney will be able to tell you if a motion for summary judgment is appropriate in your case.

Motion for partial summary judgment

A motion for partial summary judgment only attacks some of the issues in a case, meaning that the entire case will not end once the motion is decided. For example, parties may seek summary judgment on some issues, claims, or defenses in a case to help strengthen their position in the litigation and leverage a settlement from the other side. Often a complex case with many claims can be reduced to just a handful of claims when the other side has fired multiple volleys of summary judgment.

Responding to and opposing a motion for summary judgment

The party responding to a motion for summary judgment by filing an opposition to a motion for summary judgment is trying to keep their claims or defenses alive. So, to successfully defeat a summary judgment motion, the opposing party will want to submit evidence showing that there are still issues of fact in dispute.

Like the filing party, the opposing party will submit a statement of facts serving as a roadmap to their evidence which shows that issues of fact remain. The opposing party hopes that the court will deny summary judgment and allow the case to proceed to a factfinder, either judge or jury. A summary judgment motion is heavily steeped in legal arguments, primarily case law. Working with an attorney expert in researching cases, drafting pleadings, and making oral arguments is crucial for responding to a motion for summary judgment.

Practice points to consider in a motion for summary judgment in drafting a sample

There are several additional, practical factors we would advise you to think about in relation to a summary judgment application. These can be summarized in the final set of bullet points:

  1. If you want to avoid your case being allocated to a particular track prior to a summary judgment. State in the DQ that the application for summary judgment is lodged and request that allocation does not take place prior to the hearing.
  2. Ensure that you comply with any relevant pre-action protocol. Otherwise, a judge may refuse to consider an application before a defense has been filed.
  3. Be concise when you’re preparing the evidence in support of your application. There is little point in trying to second guess what the other side will say in response. You will have an opportunity to reply to whatever they ultimately raise.
  4. Bear in mind that a summary judgment application should not be used as a ‘mini trial’ of issues. Remember, it’s not a procedure designed when complex legal or factual issues are involved. Further, there must not be real and genuine issues of fact that ought to be resolved at a trial.
  5. If you are the defendant in the proceedings, check whether there are any documents. Facts with a complete or partial defense to the claim ae also crucial. In this scenario, the claimant should not be making an application for summary judgment.
  6. Consider whether summary judgment is actually the most appropriate remedy. Further, whether an alternative. This includes such as applying to have a claim or defense struck out should be used.


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