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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. There is no page limit for the Statement of Facts. Rule 9A(b)(5)(iii).
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. The Rule excuses email service in limited circumstances. Rule 9A(b)(5)(i).
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. 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 “assert an additional statement of material facts with respect to the claims on which the moving party seeks summary judgment.” Rule 9A(b)(5)(iv). The opposing party’s additional statement of facts should be added to the Statement of Facts, following the moving party’s facts and the opposing party’s responses thereto, with an appropriate heading such as “Opposing Party’s Additional Statement of Undisputed Material Facts.” Id. The additional facts should appear in consecutively numbered paragraphs, with numbers starting where the moving party’s statement ended. Id. Like the moving party’s facts, the opposing party’s additional facts must be supported by citations to the record. Id. Where the opposing party states additional facts, the opposing party must, in addition to serving the Statement of Facts on the moving party, contemporaneously email it to the opposing party, in Rich Text Format (RTF), unless the parties otherwise agree on another word processing format. Id.
The moving party then has an opportunity to respond to the additional facts stated by the opposing party. Rule 9A(b)(5)(iv). The moving party’s responses must be inserted into the Statement of Facts so that each of the opposing party’s statements of additional fact is followed directly by the moving party’s response. Id. Each such response must either admit the fact stated or dispute it. For each fact disputed, the moving party must provide citations to the record. Id. Any fact which the moving party does not controvert will be deemed admitted for purposes of the motion for summary judgment. Id.
The foregoing rules apply equally to cross-motions for summary judgment. Rule 9A(b)(5)(v). 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.
Ultimately, the moving party files the consolidated Statements of Facts with the court as part of the Rule 9A package. Any earlier statement of facts made by the moving party or response made by the opposing party, which has been incorporated into the final, consolidated Statement of Facts, should not be filed. Rule 9A(b)(5)(ii).
For suggestions concerning the drafting of an effective Statement of Facts, click here.
