Summary. Summary judgment is where most federal civil cases actually end. Rule 56 asks a deceptively simple question: is there a genuine dispute about any fact that matters, and if not, who wins as a matter of law? This article explains how that question is really decided. It covers the burden-shifting framework of Celotex and the difference between a movant who bears the trial burden and one who does not, the materiality and genuineness requirements of Anderson v. Liberty Lobby, the limits on drawing inferences after Matsushita and Scott v. Harris, and the Supreme Court's reminder in Tolan v. Cotton that courts may not weigh evidence or make credibility findings. It works through the mechanics that decide motions in practice: Rule 56(c) record citation requirements, local rule statements of material facts, what evidence may be considered and how the 2010 amendments changed objections, the sham affidavit doctrine, and Rule 56(d) requests for more discovery. It then turns to strategy for both sides, including partial motions, cross-motions, the role of experts, and the appellate consequences of a denial after Ortiz v. Jordan and Dupree v. Younger. It closes with drafting checklists, a worked example, an FAQ, and related reading.

Trials are rare. Most federal civil cases that do not settle end at summary judgment, and a large share of the cases that do settle do so because one side read the summary judgment record and understood what was coming.

Rule 56 exists to answer a specific question: when the parties have taken discovery and the evidence is in, is there anything for a jury to do? If the material facts are genuinely disputed, there is, and the case goes to trial. If they are not, the judge applies the law and enters judgment.

That is the theory. In practice, summary judgment is the most document-intensive, technically demanding motion practice in civil litigation, and it is won and lost on discipline: whether counsel built the record during discovery, whether the facts are cited to admissible evidence, whether the local rule statement was done correctly, and whether the brief tells a coherent story about what a reasonable jury could and could not find.

The short answer

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Three concepts do all the work:

  • Material. A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes about irrelevant facts do not matter, however heated.
  • Genuine. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A "scintilla" is not enough.
  • As a matter of law. Even undisputed facts must entitle the movant to judgment under the governing legal standard.

And two allocation rules:

Part I: The 1986 trilogy

Three cases decided in 1986 transformed summary judgment from a disfavored shortcut into a central feature of federal practice.

Celotex: the movant's burden

Celotex Corp. v. Catrett, 477 U.S. 317 (1986), addressed what a defendant must do to move when the plaintiff bears the trial burden. The Court held that the movant need not produce evidence negating the plaintiff's claim; it may satisfy its initial burden by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

The Court also rejected the notion that summary judgment is a disfavored procedural shortcut, describing it instead as "an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Id. at 327.

The nuance that matters. Celotex did not authorize a bare assertion that the plaintiff has no evidence. Justice White's concurrence, which supplied the fifth vote, emphasized that the movant must do more than announce the absence of proof; it must identify the parts of the record that reveal that absence, typically by pointing to discovery responses and deposition testimony where the plaintiff failed to produce support. The 2010 amendment to Rule 56(c)(1)(B) codified this: a party asserting a fact cannot be genuinely disputed must support it by citing materials in the record or by "showing that ... an adverse party cannot produce admissible evidence to support the fact."

Where the movant bears the trial burden (a plaintiff moving on its own claim, or a defendant moving on an affirmative defense), the burden is heavier: it must affirmatively establish every element such that no reasonable jury could find otherwise.

Anderson: genuineness and the evidentiary standard

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), a defamation case, established two things.

First, the summary judgment inquiry "mirrors the standard for a directed verdict." The question is whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law.

Second, and more subtly, the substantive evidentiary standard applies at summary judgment. Because the plaintiff would have to prove actual malice by clear and convincing evidence at trial, the court asked whether a reasonable jury could find actual malice by clear and convincing evidence on this record. That principle matters in fraud cases, punitive damages, patent invalidity, and anywhere else a heightened standard governs.

Matsushita: implausibility and inferences

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), an antitrust conspiracy case, held that "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Where the claim is economically implausible, the non-movant "must come forward with more persuasive evidence to support their claim than would otherwise be necessary," and conduct "as consistent with permissible competition as with illegal conspiracy" does not support an inference of conspiracy.

Matsushita is regularly overread. It does not permit weighing evidence generally; it addresses the narrow situation where the substantive law itself (antitrust conspiracy doctrine) makes certain inferences unreasonable.

Part II: What the court may and may not do

It may not weigh evidence or judge credibility

This is the rule that appellate courts most often enforce against overreaching district judges.

Tolan v. Cotton, 572 U.S. 650 (2014), reversed summary judgment in an excessive force case because the lower courts had "failed to adhere to the axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." The Court catalogued four factual disputes the lower courts had resolved against the non-movant, and made the point crisply: "courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment."

But it need not accept a version the record blatantly contradicts

Scott v. Harris, 550 U.S. 372 (2007), qualified the rule. A police dashcam video "utterly discredited" the plaintiff's account of a car chase. The Court held that "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."

The two cases fit together: Scott applies where objective evidence makes the non-movant's account impossible; Tolan applies everywhere else, which is nearly everywhere. Movants cite Scott constantly and usually should not. It works when you have the video. It does not work when you have a competing declaration you find unbelievable.

Reeves and the record as a whole

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), decided in the judgment-as-a-matter-of-law context but applied to Rule 56, instructs that a court "must review all of the evidence in the record" but "must disregard all evidence favorable to the moving party that the jury is not required to believe." In practice, that means the court credits the non-movant's evidence and the movant's uncontradicted, unimpeached evidence from disinterested witnesses, and disregards the rest of the movant's evidence.

Part III: The mechanics that decide motions

Substantive doctrine gets the attention. Procedure gets the results.

Rule 56(c): citing the record

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

  • citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials; or
  • showing that the cited materials do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Rule 56(c)(3) provides that the court "need consider only the cited materials," though it may consider other materials in the record. Judges take that seriously. An assertion supported by a citation to "Exhibit 12" without a page or line is functionally unsupported. Cite to the page and line, and to the paragraph.

Local Rule 56.1 statements

Most districts require a separate statement of undisputed material facts, in numbered paragraphs with record citations, and a response admitting, denying, or qualifying each paragraph with citations.

The rules are unforgiving and they decide cases:

  • Facts not properly controverted are deemed admitted in most districts. A response that says "disputed" without a record citation is treated as an admission.
  • Argument in the statement is improper. Fact paragraphs should be short, single-fact, and citable.
  • Additional facts usually go in a separate section with their own numbering, and the movant must respond to them.
  • Page and paragraph limits apply in some districts.

I have seen more summary judgment motions decided by 56.1 compliance than by any doctrinal argument. Read the local rule and the judge's standing order before you draft, not after.

What evidence may be considered

The 2010 amendments changed the framework meaningfully. The old rule required affidavits to set out facts "as would be admissible in evidence." The current rule provides:

  • An affidavit or declaration must be made on personal knowledge, set out facts that would be admissible in evidence, and show the affiant is competent to testify. Rule 56(c)(4).
  • But a party may object that "the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Rule 56(c)(2).

The distinction is important: the question is not whether the evidence is currently in admissible form, but whether its content could be presented admissibly at trial. An unauthenticated document that the producing party could authenticate at trial is usually acceptable; inadmissible hearsay that could never be presented is not.

Practical consequences:

  • Objections are made in the response, not by separate motion in most districts.
  • The proponent then has the burden to show the material can be presented in admissible form.
  • Do not waste pages on formal authentication objections to documents the other side produced from its own files.
  • Do spend pages on genuine hearsay problems, on expert opinions that will not survive Rule 702, and on lay opinion that requires expertise. See Expert Witnesses After the 2023 Amendment to Rule 702.

The sham affidavit doctrine

A party cannot create a genuine dispute by submitting a declaration that contradicts its own prior sworn deposition testimony without adequate explanation. Every circuit recognizes some version of this, with variations in strictness.

The doctrine does not apply where:

  • The prior testimony was ambiguous, and the declaration clarifies.
  • The declarant lacked access to relevant facts at the deposition and newly discovered evidence explains the change.
  • The declaration addresses matters not covered at the deposition.

For deposing counsel: this is a reason to lock down testimony carefully, with clean, closed questions on the dispositive points. See Preparing to Take a Deposition and Deposition Practice Toolkit.

For defending counsel: correct genuine misstatements on the errata sheet promptly, and be prepared to explain any later change with specifics.

Rule 56(d): "I need more discovery"

If the non-movant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition," the court may defer or deny the motion, allow time for discovery, or issue another appropriate order.

Rule 56(d) motions fail when they are vague. The declaration must identify:

  1. The specific facts sought.
  2. Why they are essential to opposing the motion.
  3. Why they have not been obtained, including diligence to date.
  4. How they will be obtained and how long that will take.

A declaration that says "we need discovery" gets denied. One that says "we need the deposition of the plant manager, noticed on 3 March and adjourned at defendant's request, who is the only person with knowledge of whether the valve was inspected on the date in question" gets granted.

Timing

Absent a local rule or court order, a party may file "at any time until 30 days after the close of all discovery." Rule 56(b). In practice, scheduling orders set the deadline, and most judges want dispositive motions after discovery closes and before the pretrial conference.

Part IV: Varieties of motion

Partial summary judgment

Rule 56(a) permits a party to move for summary judgment on "each claim or defense, or the part of each claim or defense." Rule 56(g) adds that if the court does not grant all the relief requested, it "may enter an order stating any material fact, including an item of damages or other relief, that is not genuinely in dispute and treating the fact as established in the case."

Partial motions are underused. Consider moving to establish:

  • That a contract is unambiguous and means X.
  • That a limitation of liability clause is enforceable.
  • That certain damages categories are unavailable as a matter of law.
  • That an affirmative defense fails.
  • That a specific element (duty, ownership, validity of a registration) is established.

Each of these narrows trial, simplifies jury instructions, and improves settlement position, and each is far more winnable than a motion to dispose of the whole case.

Cross-motions

Cross-motions do not mean the case can be decided as a matter of law. Each motion is evaluated separately, with inferences drawn in favor of the party opposing that motion. Courts say this constantly and litigants forget it constantly.

The practical danger of cross-moving is that your own statement of undisputed facts may be used against you. Draft with that in mind.

Sua sponte summary judgment

Rule 56(f) permits the court, after giving notice and a reasonable time to respond, to grant summary judgment for a nonmovant, grant it on grounds not raised, or consider summary judgment on its own after identifying material facts that may not be genuinely in dispute. Notice is required, and reversals for lack of notice are common.

Part V: Strategy

For the movant

Decide whether to move at all. Summary judgment briefing is expensive. Before committing, ask:

  • Is there a legal question that disposes of a claim, or am I really arguing facts?
  • Will a partial win meaningfully change trial or settlement?
  • Does the motion educate the other side or lock in my own positions unhelpfully?
  • Does my judge grant these motions in this kind of case? Look at their record.

Build the record during discovery, not during briefing. The best summary judgment motions are drafted, in outline, before the first deposition. Know which admissions you need and get them: closed questions, no qualifiers, on the record.

Write the fact statement first. If you cannot write a clean, short, fully cited statement of undisputed facts, you do not have a motion.

Lead with the cleanest ground. Judges reward focus. Three strong grounds beat eight of mixed quality.

Anticipate the inference problem. For every fact you call undisputed, ask what inference a jury could draw the other way, and address it.

Do not argue credibility. If your best argument is that the other side's witness is lying, you are asking for a trial.

For the non-movant

Attack the fact statement first. Every improperly supported paragraph you controvert with a record citation is a fact the court cannot use.

Do not dispute everything. Credibility with the court is a resource. Admit what is true, controvert what matters, and make the genuine disputes stand out.

Identify the material facts precisely. Show the court the specific factual question a jury would have to answer, and the evidence on both sides of it. "There are numerous disputed facts" is not an argument.

Use your own affirmative evidence. A non-movant may not rest on the pleadings. Rule 56(c)(1); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).

Consider Rule 56(d) if discovery is genuinely incomplete, and support it with specifics.

Watch for the sham affidavit trap. If your declaration will differ from deposition testimony, explain why in the declaration itself.

Preserve everything. Object to evidence, respond to every argument, and make clear which disputes required trial. See Federal Appellate Practice.

Experts at summary judgment

Expert testimony frequently creates or defeats a genuine dispute, which means the Daubert question and the Rule 56 question are entangled.

Practical sequencing:

  • Move to exclude the opposing expert before or simultaneously with the summary judgment motion, so that the court can consider the record without the challenged opinion.
  • Courts generally must resolve a Daubert challenge that would eliminate the evidence relied upon to oppose summary judgment, rather than assuming admissibility.
  • A "battle of the experts" ordinarily precludes summary judgment, so a movant must usually knock the opposing expert out rather than argue that its own expert is better.
  • The December 2023 amendment to Fed. R. Evid. 702 clarified that the proponent must establish admissibility by a preponderance, and that the expert's opinion must reflect a reliable application of the methodology. That amendment has strengthened exclusion motions and, indirectly, summary judgment motions.

Part VI: What happens after the ruling

If the motion is granted

A grant on all claims is a final judgment, appealable under 28 U.S.C. § 1291, reviewed de novo with all inferences drawn in favor of the party who lost below.

A partial grant is generally not immediately appealable absent Rule 54(b) certification or § 1292(b) certification.

If the motion is denied

Denial is not appealable at the time, because it is not a final order and does not fall within § 1292(a)(1).

More importantly, two Supreme Court cases govern what happens to the denial after trial:

  • Ortiz v. Jordan, 562 U.S. 180 (2011): a party may not appeal an order denying summary judgment after a full trial on the merits, because the pretrial record is superseded by the trial record. To preserve a sufficiency challenge, the party must move under Rule 50(a) and renew under Rule 50(b).
  • Dupree v. Younger, 598 U.S. 729 (2023): Ortiz applies to factual challenges only. A purely legal issue resolved at summary judgment is preserved for appeal without renewing it in a Rule 50 motion, because the trial record does not supersede a legal ruling.

That pair of cases is worth memorizing. The practical instruction: classify each summary judgment argument as legal or factual. Legal rulings are preserved; factual ones must be renewed at trial through Rule 50.

Rule 56(h): bad faith

If an affidavit or declaration is submitted in bad faith or solely for delay, the court may order the submitting party to pay the other party's reasonable expenses, including attorney's fees, and may hold the offending party in contempt. This is rarely invoked and occasionally deserved.

Part V-A: Recurring substantive contexts

The Rule 56 standard is uniform; how it plays out is not. A few contexts recur often enough to be worth knowing.

Contract cases. The most summary-judgment-friendly category. Where a contract is unambiguous, its interpretation is a question of law for the court, and summary judgment follows. The battleground is therefore ambiguity: a party opposing summary judgment argues the term is ambiguous, which opens the door to extrinsic evidence and to a jury. Note the jurisdictional split on whether extrinsic evidence may be considered to show ambiguity in the first place, with New York applying a stricter four-corners approach and California permitting a broader inquiry under Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal. 2d 33 (1968).

Employment discrimination. The McDonnell Douglas burden-shifting framework structures the motion: the plaintiff establishes a prima facie case, the employer articulates a legitimate nondiscriminatory reason, and the plaintiff must show pretext. Summary judgment turns almost entirely on the pretext showing, and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), holds that a plaintiff's prima facie case combined with sufficient evidence that the employer's explanation is false may permit an inference of discrimination without additional evidence.

Intellectual property. Patent claim construction is decided by the court and frequently resolves infringement on summary judgment. Trademark likelihood of confusion is a fact-intensive multifactor inquiry that resists summary judgment unless the objective factors align decisively; see Polaroid Factors on Summary Judgment in the Second Circuit. Copyright fair use is regularly decided on summary judgment where the facts about the use are undisputed; see Fair Use After Warhol.

Qualified immunity. A defendant's summary judgment denial on qualified immunity is immediately appealable under the collateral order doctrine to the extent it turns on a question of law, which is a rare exception to the ordinary non-appealability of Rule 56 denials. See Federal Appellate Practice.

Antitrust. Matsushita was an antitrust case, and its implausibility reasoning does its heaviest work there. Conspiracy claims resting on ambiguous parallel conduct are vulnerable. See Antitrust for Technology Companies.

Damages. An underused target. Even where liability is genuinely disputed, a motion establishing that a particular damages category is unavailable as a matter of law, or that a damages theory lacks any evidentiary support, narrows the case and reshapes settlement. Partial motions on damages are granted more often than motions on liability and cost far less to brief.

A worked example

Cordova Medical Devices, Inc. (fictional) sues Brightline Contract Manufacturing, LLC (fictional) for breach of a supply agreement after a lot of catheters failed sterility testing. Cordova claims $4.1 million in damages. Brightline counterclaims for unpaid invoices of $380,000 and asserts a limitation of liability clause capping damages at fees paid in the prior twelve months ($620,000) and excluding consequential damages.

Brightline's motion, as most lawyers would write it: "Summary judgment on all claims because Cordova cannot prove causation."

Brightline's motion, done well: three targeted requests.

Request 1 (legal, likely to succeed): partial summary judgment that the limitation of liability clause is enforceable and caps recoverable damages at $620,000 with consequential damages excluded. This is a contract interpretation question decided on the document. If granted, the case's value drops by 85 percent regardless of who is right about the sterility failure. This request alone justifies the motion. See Indemnification and Limitation of Liability.

Request 2 (factual, moderate): summary judgment that Cordova's lost-profits claim fails for lack of evidence, because Cordova's Rule 30(b)(6) witness testified that no analysis was performed and Cordova disclosed no damages expert. This is a classic Celotex showing: point to the absence of evidence in the record, specifically the deposition testimony and the expert disclosure.

Request 3 (legal, on the counterclaim): summary judgment on the unpaid invoices, where Cordova admitted receipt of the goods and non-payment in its interrogatory responses, and its only defense is offset, which depends on the damages claim.

Cordova's opposition, done well:

  • Controvert only what matters. Admit the contract language, the invoices, and the delivery dates. Fight the interpretation of the cap, not the existence of the clause.
  • Argue the cap's enforceability limits: whether it applies to the specific claim, whether an exclusion for gross negligence or willful misconduct applies, and whether a failure of essential purpose argument is available under the governing law.
  • On lost profits, either concede and proceed on direct damages (repair, replacement, recall cost), or invoke Rule 56(d) if a damages expert deadline has not yet passed.
  • On the counterclaim, assert the offset defense and identify the specific factual dispute (whether the goods conformed) that a jury must resolve.

Likely result. Partial grant on the cap and on lost profits, denial on the sterility causation question, and a case that is now a $600,000 dispute rather than a $4 million one. Both sides get real information, and the case settles within sixty days.

That is what a competent summary judgment practice looks like. It is not about winning everything; it is about converting an unbounded dispute into a bounded one.

Checklists

Movant's checklist

  • Read the local rule and the judge's standing order on summary judgment.
  • Draft the statement of undisputed facts first, one fact per paragraph, each with a pinpoint citation.
  • Confirm every cited document is authenticated or authenticable and every declarant has personal knowledge.
  • Identify the governing evidentiary standard (preponderance, clear and convincing) and apply it.
  • For each element, state whether you or the opponent bears the trial burden.
  • For each asserted undisputed fact, identify the contrary inference and address it.
  • Consider partial relief under Rule 56(a) and fact-establishment under Rule 56(g).
  • File or coordinate any Rule 702 motion.
  • Check page limits, exhibit indexing, and sealing requirements.
  • Prepare a proposed order that is specific about what is granted.

Non-movant's checklist

  • Calendar the response deadline and any local rule requirements immediately.
  • Respond to every numbered fact with a citation; never write "disputed" alone.
  • Add a separate statement of additional material facts.
  • Submit affirmative evidence; do not rest on the pleadings or the complaint.
  • Screen every declaration against prior deposition testimony (sham affidavit risk).
  • Make Rule 56(c)(2) objections with specificity and a reason.
  • File a Rule 56(d) declaration if discovery is genuinely incomplete, with the four required showings.
  • Answer every argument; silence is treated as concession.
  • Identify, in one paragraph, the precise factual questions a jury must decide.

Frequently asked questions

When can I move for summary judgment? Unless the court orders otherwise, at any time until 30 days after the close of all discovery. Rule 56(b). In practice, the scheduling order controls. Early motions on purely legal issues are sometimes appropriate, but courts usually prefer a complete record.

Can I move before discovery is complete? Yes, but expect a Rule 56(d) response, and expect the court to grant it if the non-movant identifies specific facts it needs.

Does the judge decide credibility? No. That is the clearest rule in the area. Anderson and Tolan both say it. If your motion requires disbelieving a witness, it should not be filed.

What is the difference between a motion to dismiss and summary judgment? A motion to dismiss tests the complaint on its face and assumes the allegations are true. Summary judgment tests the evidence. See Motions to Dismiss Under Rule 12.

Can I use unauthenticated documents? Often, yes, if they can be presented in an admissible form at trial. Rule 56(c)(2) shifted the inquiry from current form to eventual admissibility. But do not rely on that for documents you cannot actually authenticate. For website and screenshot evidence in particular, see Authenticating Website Evidence.

What happens if I lose? The case proceeds to trial. Denial is not appealable now, and after trial only legal issues survive without renewal under Rule 50. Ortiz; Dupree. Classify your arguments accordingly and make the Rule 50 motions.

Are cross-motions a good idea? Sometimes, especially on contract interpretation. Remember that each motion is judged separately, and that your own fact statement can be used against you.

Do most cases go to trial after summary judgment is denied? No. Most settle, often quickly, because the ruling tells both sides what the evidence looks like to a neutral reader.

How long should the brief be? As long as the local rules allow and as short as the argument permits. The most common failure is a brief that argues everything and emphasizes nothing.

Closing thought

Rule 56 rewards two virtues that are hard to fake: discipline during discovery and honesty about the record.

Discipline means knowing, before the first deposition, which facts you will need to be undisputed and getting clean testimony about them. It means producing and obtaining documents in a form you can authenticate. It means deposing the Rule 30(b)(6) witness on the specific topics that map to elements rather than on everything.

Honesty means calling a factual dispute a factual dispute. The single most common defect in summary judgment briefing is a movant who has a genuinely disputed case and writes as if it does not, arguing that the opposing evidence is weak, biased, or implausible. Judges read that as a request to try the case on paper, and they deny it, usually with a sentence that stings.

The lawyers who do well here are the ones who move for less and get it.

Related articles

This article is provided for general informational purposes and does not constitute legal advice. Summary judgment practice is heavily governed by local rules and individual judges' standing orders. Consult qualified litigation counsel about any particular motion.