Civil Procedure, Summary Judgment, and How “Partial” Can You Get?

“If everything the other side says is true, we still win.”  This is how Minnesota Litigator explains motions to dismiss to non-lawyers in a nutshell.

“Looking at all of the evidence in this case now — before trial — this court should find that we win.”  This is how Minnesota Litigator explains motions for summary judgment to non-lawyers in a nutshell.

But, can a trial lawyer argue, “Looking at all of the evidence now — before trial — should be sufficient for this court to decide already that Company X never received Document A”?  Is that necessarily a viable “partial summary judgment” motion (or necessarily NOT one)?

Rule 56 of the Federal Rules of Civil Procedure was amended in 2010 to allow a party to request summary judgment as to a claim, defense, “or part of a claim or defense.”  Can a litigant effectively bring a “motion in limine,” a request for an evidentiary finding before trial, as a “motion for partial summary judgment”?

Apparently, the answer is, at least arguably, “yes.”  The Advisory Committee Notes to the 2010 Amendments to Rule 56 say, in part, “partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case.”

However, caselaw after this relatively recent rule amendment indicates that a partial summary judgment motion, even if on part of a claim or defense, must still resolve a legally determinative issue in the case.  See, e.g., Harper v. City of San Jose, No. C 09-05758 (JW) (N.D. Cal. Mar. 7, 2011) ; Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173, 1187 (E.D. Tex. 2011). Notably, the partial summary judgment sought in each of these cases resolved an element of a claim (and, therefore, if granted, would dispose of the entire claim).

A court could construe the rule to allow partial summary judgment on part of a part of a claim (e.g., “The January 1, 2006 e-mail does not constitute actual notice of ___” to prove the absence of an element of “notice” required for a particular claim (when notice might be proven by other evidence)).  That interpretation of the current rule, however, would waste judicial resources and impose excessive cost if both sides exhaustively brief and argue an issue that would not establish an element of a claim (or establish its absence), much less resolve a full claim.

There have been few federal decisions in Minnesota since December 1, 2010 interpreting the rules change.  In one case discussing the consequences of the amendment, a Minnesota federal court, (Charles H. Gustafson, Special Master), held that the plaintiff’s motion for partial summary judgment was proper because the motion “would resolve at least one portion of a claim in the litigation.”  Wells Fargo & Co. v. United States, Slip Copy, 09-CV-02764-PJS-TNL  (D. Minn. Nov. 2, 2011).

Wells Fargo and other federal cases suggest that federal courts will be more open to partial summary judgment motions, but we hope only if it definitively resolves a claim or defense in the case or at least a portion of one.

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