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 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, unless the opposing party has filed a cross-motion for summary judgment. 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.”