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Updated August 24, 2020

Superior Court Rule 9A(b)(5) requires that any motion for summary judgment be accompanied by a “statement of the material facts as to which the moving party contends there is no genuine issue to be tried” (“Statement of Facts”).  Failure to provide a Statement of Facts constitutes grounds for denial of the motion.

The Statement of Facts consists of consecutively numbered paragraphs, each of which asserts such a material fact.  Rule 9A(b)(5)(i). Each such statement must be supported by citations to the record (“pleadings, depositions, answers to interrogatories, responses to requests for admissions, affidavits or other evidentiary documents”).  Id.  The Statement of Facts is subject to a length limit of 20 pages.  Id.

Rule 9A(b)(5)(i) also lists material which should not appear in a Statement of Facts, including, without limitation, background facts, quotations from various documents (though the Statement of Facts may establish the existence and authenticity of such documents and the quotations may be included in an addendum to the memorandum), quotations for statutes, regulations or rules (though the quotations may be included in an addendum to the memorandum).

The moving party must serve the Statement of Facts on the opposing party with the motion papers.  In addition, the moving party must, contemporaneously with service, email a copy of the Statement of Facts to the opposing party, in Rich Text Format (RTF), unless the parties otherwise agree on another word processing format.  Rule 9A(b)(5)(ii).  The Rule excuses email service in limited circumstances. Id.

The opposing party is required to respond to each of the facts stated in the moving party’s Statement of Facts.  Rule 9A(b)(5)(ii). The responses must be inserted into the Statement of Facts so that each of the moving party’s statements is followed directly by the opposing party’s response.  Id.  Each such response must either admit the fact stated or dispute it.  For each fact disputed, the opposing party must provide citations to the record.  Id.

The response to a factual statement in a Statement of Facts should be “undisputed” or “disputed.” If the fact is disputed, the responding party must provide a citation to the record or state that the portion of the record cited by the moving party does not support the stated fact. Rule 9A(b)(5)(iii)(A) states that “the response to the numbered paragraphs [of the moving party’s Statement of Facts] shall be limited to stating whether a given fact is disputed and, if so, cite to specific evidence, if any, in the Joint Appendix that demonstrates the dispute.” Rule 9A(b)(5)(iii)(A) also lists material which may not be included in the opposing party’s response to the moving party’s Statement of Facts, including “commentary on whether the fact asserted is relevant or material” and “legal arguments or advocacy-oriented characterizations concerning the sufficiency, relevance or materiality of the moving party’s factual proffers”

It should be noted that any fact which the opposing party does not dispute will be deemed admitted for purposes of the motion for summary judgment.  Id.

In addition to responding to the moving party’s statements of fact, the opposing party may wish to rely on additional evidence which the moving party has not included in the Appendix.  The opposing party is prohibited from adding additional facts to the Statement of Facts. Instead, “[o]pposing parties who argue that additional facts warrant denying summary judgment shall include those facts in the opposition memorandum, each to be supported with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents.” Rule 9A(b)(5)(iii)(B).

When there are cross-motions, the party who serves a motion for summary judgment first is regarded as the moving party, while the other party is regarded as the opposing party.  That opposing party should respond to the moving party’s facts, as described above, and then, in a “separate Consolidated Statement of Facts” state additional facts in support of the opposing party’s cross-motion.  Rule 9A(b)(5)(iv)(C). The original moving party then has the opportunity to respond to the facts supporting the cross-motion, and any fact which is not disputed will be deemed admitted for purposes of the motion for summary judgment.

Ultimately, the moving party files the Consolidated Statements of Facts with the court as part of the Rule 9A package.

For suggestions concerning the drafting of an effective Statement of Facts, click here.

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Updated August 24, 2020

Superior Court Rule 9A(b)(5) requires that a motion for summary judgment be accompanied by a “statement of the material facts as to which the moving party contends there is no genuine issue to be tried” (“Statement of Facts”).  The purpose of the Statement of Facts is to assist the judge in determining whether there exist any genuinely disputed material facts.

With that purpose in mind, consider the following requirements and suggestions when drafting your next Statement of Facts:

• Rule 9A(b)(5)(i) limits the moving party’s Statement of Facts to 20 pages.
• Rule 9A(b)(5)(i) also lists material which should not appear in a Statement of Facts, including, without limitation, background facts, quotations from various documents (though the Statement of Facts may establish the existence and authenticity of such documents and the quotations may be included in an addendum to the memorandum), quotations for statutes, regulations or rules (though the quotations may be included in an addendum to the memorandum);
• State only facts supported by the record and for each fact provide a citation to the record;
• Ensure that the portions of the record cited are admissible (e.g. do not contain inadmissible hearsay);
• Do not include argument in the Statement of Facts. In other words, do not state conclusions based on the facts;
• Because the opposing party is required to respond to each paragraph of the Statement of Facts, try to state only one fact per paragraph;
• Make the stated facts simple, such that they force the opposing party to admit or deny the fact;
• The response to a factual statement in a Statement of Facts should be “undisputed” or “disputed.” If the fact is disputed, the responding party must provide a citation to the record or state that the portion of the record cited by the moving party does not support the stated fact;
• Sometimes, because a paragraph of the Statement of Facts contains multiple facts or has multiple possible implications, the responding party may need to provide a more detailed response. For example, if the statement is that “on Sunday the defendant drove the plaintiff and another employee to the job site,” the defendant might respond, “UNDISPUTED that defendant drove plaintiff and one of defendant’s employees to the job site.  DISPUTED to the extent the statement asserts that plaintiff was an employee of defendant.”
• Rule 9A(b)(5)(iii)(A) states that “the response to the numbered paragraphs [of the moving party’s Statement of Facts] shall be limited to stating whether a given fact is disputed and, if so, cite to specific evidence, if any, in the Joint Appendix that demonstrates the dispute.”
• Rule 9A(b)(5)(iii)(A) also lists material which may not be included in the opposing party’s response to the moving party’s Statement of Facts, including “commentary on whether the fact asserted is relevant or material” and “legal arguments or advocacy-oriented characterizations concerning the sufficiency, relevance or materiality of the moving party’s factual proffers”;
• The opposing party is prohibited from submitting a separate statement of additional facts.  Instead, “[o]pposing parties who argue that additional facts warrant denying summary judgment shall include those facts in the opposition memorandum, each to be supported with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents.” Rule 9A(b)(5)(iii)(B).
• Where the opposing party relies on evidence not included in the exhibits served by the moving party, the opposing party must serve the moving party with the new evidence in the form of new exhibits for inclusion in the Joint Appendix.

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Updated August 24, 2020

A motion for summary judgment, opposition, or cross-motion must be accompanied by a Joint Appendix containing, as exhibits, all documents referred to in the motion, opposition, cross-motion, or memoranda supporting or opposing summary judgment. Rule 9A(b)(5)(v). The moving party is responsible for assembling the Joint Appendix, with cooperation from the opposing party. Id.

The Joint Appendix must begin with an index of exhibits. Id. The index is followed by consecutively numbered (not lettered) exhibits, which must be separated by a numbered tab divider unless the pages of the Appendix are consecutively numbered. Id.

The moving party, when serving the motion and related papers on the opposing party, must also serve copies of the exhibits on which the moving party relies. Id. If the opposing party relies on the same exhibits, the opposing party must refer to those exhibits using the exhibit numbers assigned by the moving party. Id. Any additional documents relied upon by the opposing party must be added to the Appendix, using exhibit numbers or pagination beginning with the next consecutive number following the last exhibit number or page used by the moving party. Id. The opposing party must serve any additional exhibits, and an index thereto, on the moving party when the opposing party serves opposition or cross–motion papers. Id.

The moving party must certify that the Joint Appendix includes any exhibits served by the opposing party. Id. That certification should be included at the end of the Appendix index.

The parties’ memoranda of law, when citing to an exhibit, must reference both the exhibit and a paragraph of the statement of material facts.  Id.

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Updated August 24, 2020

A litigant may sometimes file a summary judgment reply memorandum without first obtaining the court’s permission.

Superior Court Rule 9A(a)(3) does not require a party to obtain the court’s permission before filing a reply memorandum if: (1) the “matters raised in the opposition … were not and could not reasonably have been anticipated and addressed in the moving party’s initial memorandum”; (2) the reply is limited to addressing such matters; and (3) the reply does not exceed five typed double-spaced pages.  “No other reply or surreply submission shall be filed without leave of court, which will be granted only in exceptional circumstances.”

Leave of court is required to exceed the page limit for a permitted reply or to file a reply that does not satisfy the requirements outlined above.  Leave may be applied for by filing a request captioned as a pleading.  The length of the request must “not exceed one page … (not counting the caption and title).”  The request must “state the grounds and specific relief sought (e.g., a specific proposed new page limit).”  Finally, the request must be addressed to “Session Clerk, ATTN: Session Judge,” rather than directly to the judge.

Reply memoranda should not be filed a matter of course.  Nor should a reply merely repeat arguments made in the moving party’s primary memorandum.  An effective reply is brief and targeted, focusing only on answering an unexpected argument or, perhaps, on correcting important misstatements of law or fact in the opposition.

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Updated August 24, 2020

Summary judgment is appropriate when the summary judgment record shows 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.” Mass. R. Civ. P. 56(c).  A fact is “material” if it would affect the outcome of the suit. An issue is “genuine” where a reasonable finder of fact could return a verdict for the non-moving party.

The moving party bears the initial burden of demonstrating the absence of a triable issue and that the summary judgment record entitles him to judgment as a matter of law. The moving party may satisfy its burden by submitting affirmative evidence that negates an essential element of the opposing party’s case or by demonstrating that the non-moving party has no reasonable expectation of proving an essential element of his case at trial.

Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact.  The opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion.  Moreover, the non-moving party cannot create a material issue of fact and defeat summary judgment simply by submitting affidavits that contradict its own previously sworn statements.

If the moving party has carried its burden, and the opposing party has not responded with specific facts to establish a genuine, triable issue, the court grants the motion for summary judgment.

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Updated August 24, 2020.

Massachusetts Rule of Civil Procedure 56(f) provides,

When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Thus, a party opposing a motion for summary judgment may ask the court to defer ruling on the motion until further discovery is conducted.  Particularly where a motion for summary judgment is filed long before the scheduled close of discovery, a court may be inclined to allow further discovery by a party opposing the motion.

The court faced with a Rule 56(f) motion should consider authoritativeness, timeliness, good cause, utility, and materiality.

Although a Rule 56(f) motion is committed to the court’s discretion, and the court may grant such a motion even when all five criteria are not established, when all five requirements are satisfied, a strong presumption arises in favor of relief.

A Rule 56(f) motion must be filed in a timely manner (as soon as possible after service of a motion for summary judgment is advisable), and must be supported by an “authoritative” affidavit based on the affiant’s personal knowledge.

With respect to good cause, the party seeking additional discovery must show that it has diligently pursued discovery but has not been able to obtain the discovery it now seeks.  Possible justifications might be that the party seeking relief under Rule 56(f) propounded discovery but the motion for summary judgment was filed before answers were received, or that the party seeking summary judgment has refused to produce requested discovery.

The utility factor is satisfied by showing that there is a plausible basis for believing that the discoverable facts specified in the Rule 56(f) motion exist.

Materiality is established where the discovery sought by the Rule 56(f) motion, if obtained, will influence the outcome of the pending summary judgment motion.  The threshold of materiality is necessarily low.  The facts that the party invoking Rule 56(f) seeks to discover must be foreseeably capable of breathing life into his claim or defense.

Rule 56(f) should be liberally applied where the interests of justice would be served, and relief under Rule 56(f) is strongly supported where the party moving for summary judgment has sole possession of the facts needed to oppose the motion.  Moreover, the Rule 56(f) motion need not be based on evidence admissible at trial, so long as it rises sufficiently above mere speculation.

However, a party may not use Rule 56(f) to “fish” for evidence in hopes of finding something helpful to that party in the course of the discovery procedure.

Notably, a court deciding a Rule 56(f) motion must separately analyze each claim as to which additional discovery is sought.  The legal elements of each claim or defense define the facts which a party must prove.  They therefore circumscribe the evidence which, if discovered, would be material to those claims and defenses and would potentially influence the outcome of the pending summary judgment motion.  A court may grant a Rule 56(f) motion as to discovery on some claims but deny it as to other claims.

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Updated August 24, 2020

Under Massachusetts Rule of Civil Procedure 56(g), the court may impose sanctions on a party who files an affidavit in support of or in opposition to a motion for summary judgment, where the court concludes that “any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay.” In such a case, 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 him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.”

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Updated August 24, 2020

The Business Litigation Session (“BLS”) of the Massachusetts Superior Court has adopted its own procedural order governing partial dispositive motion, including motions for partial summary judgment. That order requires parties to confer with each other and with the judge before they file any motions that will be only partially dispositive of the case. According to the BLS, some such motions “consume substantial amounts of the court’s and the parties’ time and resources but often do not substantially reduce the length of the litigation or trial.”

Under the procedural order, a party moving for partial summary judgment is required to confer with the opposing party and with the judge before filing any motions that will be only partially dispositive of the case. The moving party must file a Certificate of Compliance with the motion package that details the steps taken by the parties to comply with this procedural order.

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Because the denial of a motion for summary judgment does not decide the case, it is an interlocutory order and usually is not immediately appealable. However, the doctrine of present execution allows appellate review of denials of summary judgment motions in a few situations (e.g., where the moving party asserts immunity). A party whose motion for summary judgment has been denied may also obtain appellate review if the trial court reports its order to the Appeals Court or by filing a petition in the Appeals Court for interlocutory review under Massachusetts G.L. c. 231, §118.

The allowance of a motion for summary judgment as to all claims by all parties fully disposes of the case and is appealable. The grant of a partial summary judgment generally is not appealable because it does not determine all claims as to all parties. However, a partial summary judgment may be appealed if the trial court enters a certification under Mass. R. Civ. P. 54(b) that “there is no just reason for delay.”

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