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. Unless the opposing party is also filing a cross-motion for summary judgment, 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, as a continuation of the Statement of Facts, state additional facts both in opposition to the moving party’s motion and in support of the opposing party’s cross-motion. The original moving party then has the opportunity to respond to the additional facts 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.