Order Granting Plaintiff'S Motion For Summary Judgment: Fill & Download for Free

Rule 56. Summary JudgmentPrimary tabs(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. 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. The court should state on the record the reasons for granting or denying the motion.(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.(c) Procedures.(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.(2) Objection That a Fact Is Not Supported by Admissible Evidence. 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.(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:(1) defer considering the motion or deny it;(2) allow time to obtain affidavits or declarations or to take discovery; or(3) issue any other appropriate order.(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:(1) give an opportunity to properly support or address the fact;(2) consider the fact undisputed for purposes of the motion;(3) grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it; or(4) issue any other appropriate order.(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:(1) grant summary judgment for a nonmovant;(2) grant the motion on grounds not raised by a party;or(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, 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.(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court — after notice and a reasonable time to respond — may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010.)Notes of Advisory Committee on Rules—1937This rule is applicable to all actions, including those against the United States or an officer or agency thereof.Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. It has been extensively used in England for more than 50 years and has been adopted in a number of American states. New York, for example, has made great use of it. During the first nine years after its adoption there, the records of New York county alone show 5,600 applications for summary judgments. Report of the Commission on the Administration of Justice in New York State (1934), p. 383. See also Third Annual Report of the Judicial Council of the State of New York (1937), p. 30.In England it was first employed only in cases of liquidated claims, but there has been a steady enlargement of the scope of the remedy until it is now used in actions to recover land or chattels and in all other actions at law, for liquidated or unliquidated claims, except for a few designated torts and breach of promise of marriage. English Rules Under the Judicature Act (The Annual Practice, 1937) O. 3, r. 6; Orders 14, 14A, and 15; see also O. 32, r. 6, authorizing an application for judgment at any time upon admissions. In Michigan (3 Comp.Laws (1929) §14260) and Illinois (Ill.Rev.Stat. (1937) ch. 110, §§181, 259.15, 259.16), it is not limited to liquidated demands. New York (N.Y.R.C.P. (1937) Rule 113; see also Rule 107) has brought so many classes of actions under the operation of the rule that the Commission on Administration of Justice in New York State (1934) recommend that all restrictions be removed and that the remedy be available “in any action” (p. 287). For the history and nature of the summary judgment procedure and citations of state statutes, see Clark and Samenow, The Summary Judgment (1929), 38 Yale L.J. 423.Note to Subdivision (d). See Rule 16 (Pre-Trial Procedure; Formulating Issues) and the Note thereto.Note to Subdivisions (e) and (f). These are similar to rules in Michigan. Mich.Court Rules Ann. (Searl, 1933) Rule 30.Notes of Advisory Committee on Rules—1946 AmendmentSubdivision (a). The amendment allows a claimant to move for a summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. This will normally operate to permit an earlier motion by the claimant than under the original rule, where the phrase “at any time after the pleading in answer thereto has been served” operates to prevent a claimant from moving for summary judgment, even in a case clearly proper for its exercise, until a formal answer has been filed. Thus in Peoples Bank v. Federal Reserve Bank of San Francisco (N.D.Cal. 1944) 58 F.Supp. 25, the plaintiff's counter-motion for a summary judgment was stricken as premature, because the defendant had not filed an answer. Since Rule 12(a) allows at least 20 days for an answer, that time plus the 10 days required in Rule 56(c) means that under original Rule 56(a) a minimum period of 30 days necessarily has to elapse in every case before the claimant can be heard on his right to a summary judgment. An extension of time by the court or the service of preliminary motions of any kind will prolong that period even further. In many cases this merely represents unnecessary delay. See United States v. Adler's Creamery, Inc. (C.C.A.2d, 1939) 107 F.(2d) 987. The changes are in the interest of more expeditious litigation. The 20-day period, as provided, gives the defendant an opportunity to secure counsel and determine a course of action. But in a case where the defendant himself serves a motion for summary judgment within that time, there is no reason to restrict the plaintiff and the amended rule so provides.Subdivision (c). The amendment of Rule 56(c), by the addition of the final sentence, resolves a doubt expressed in Sartor v. Arkansas Natural Gas Corp. (1944) 321 U.S. 620. See also Commentary, Summary Judgment as to Damages (1944) 7 Fed.Rules Serv. 974; Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co. (C.C.A.2d, 1945) 147 F.(2d) 399, cert. den. (1945) 325 U.S. 861. It makes clear that although the question of recovery depends on the amount of damages, the summary judgment rule is applicable and summary judgment may be granted in a proper case. If the case is not fully adjudicated it may be dealt with as provided in subdivision (d) of Rule 56, and the right to summary recovery determined by a preliminary order, interlocutory in character, and the precise amount of recovery left for trial.Subdivision (d). Rule 54(a) defines “judgment” as including a decree and “any order from which an appeal lies.” Subdivision (d) of Rule 56 indicates clearly, however, that a partial summary “judgment” is not a final judgment, and, therefore, that it is not appealable, unless in the particular case some statute allows an appeal from the interlocutory order involved. The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact. See Leonard v. Socony-Vacuum Oil Co. (C.C.A.7th, 1942) 130 F.(2d) 535; Biggins v. Oltmer Iron Works (C.C.A.7th, 1946) 154 F.(2d) 214; 3 Moore's Federal Practice (1938). 3190–3192. Since interlocutory appeals are not allowed, except where specifically provided by statute (see 3 Moore, op. cit. supra, 3155–3156) this interpretation is in line with that policy, Leonard v. Socony-Vacuum Oil Co., supra. See also Audi Vision Inc., v. RCA Mfg. Co. (C.C.A.2d, 1943) 136 F.(2d) 621; Toomey v. Toomey (App.D.C. 1945) 149 F.(2d) 19; Biggins v. Oltmer Iron Works, supra; Catlin v. United States (1945) 324 U.S. 229.Notes of Advisory Committee on Rules—1963 AmendmentSubdivision (c). By the amendment “answers to interrogatories” are included among the materials which may be considered on motion for summary judgment. The phrase was inadvertently omitted from the rule, see 3 Barron & Holtzoff, Federal Practice and Procedure 159–60 (Wright ed. 1958), and the courts have generally reached by interpretation the result which will hereafter be required by the text of the amended rule. See Annot., 74 A.L.R.2d 984 (1960).Subdivision (e). The words “answers to interrogatories” are added in the third sentence of this subdivision to conform to the amendment of subdivision (c).The last two sentences are added to overcome a line of cases, chiefly in the Third Circuit, which has impaired the utility of the summary judgment device. A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matters sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. In this situation Third Circuit cases have taken the view that summary judgment must be denied, at least if the averments are “well-pleaded,” and not suppositious, conclusory, or ultimate. See Frederick Hart & Co., Inc. v. Recordgraph Corp., 169 F.2d 580 (3d Cir. 1948); United States ex rel. Kolton v. Halpern, 260 F.2d 590 (3d Cir. 1958); United States ex rel. Nobles v. Ivey Bros. Constr. Co., Inc., 191 F.Supp. 383 (D.Del. 1961); Jamison v. Pennsylvania Salt Mfg. Co., 22 F.R.D. 238 (http://W.D.Pa. 1958); Bunny Bear, Inc. v. Dennis Mitchell Industries, 139 F.Supp. 542 (http://E.D.Pa. 1956); Levy v. Equitable Life Assur. Society, 18 F.R.D. 164 (E.D.Pa. 1955).The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. See 6 Moore's Federal Practice 2069 (2d ed. 1953); 3 Barron & Holtzoff, supra, §1235.1.It is hoped that the amendment will contribute to the more effective utilization of the salutary device of summary judgment.The amendment is not intended to derogate from the solemnity of the pleadings. Rather it recognizes that, despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary.Nor is the amendment designed to affect the ordinary standards applicable to the summary judgment motion. So, for example: Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. And summary judgment may be inappropriate where the party opposing it shows under subdivision (f) that he cannot at the time present facts essential to justify his opposition.Notes of Advisory Committee on Rules—1987 AmendmentThe amendments are technical. No substantive change is intended.Committee Notes on Rules—2007 AmendmentThe language of Rule 56 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.Former Rule 56(a) and (b) referred to summary-judgment motions on or against a claim, counterclaim, or crossclaim, or to obtain a declaratory judgment. The list was incomplete. Rule 56 applies to third-party claimants, intervenors, claimants in interpleader, and others. Amended Rule 56(a) and (b) carry forward the present meaning by referring to a party claiming relief and a party against whom relief is sought.Former Rule 56(c), (d), and (e) stated circumstances in which summary judgment “shall be rendered,” the court “shall if practicable” ascertain facts existing without substantial controversy, and “if appropriate, shall” enter summary judgment. In each place “shall” is changed to “should.” It is established that although there is no discretion to enter summary judgment when there is a genuine issue as to any material fact, there is discretion to deny summary judgment when it appears that there is no genuine issue as to any material fact. Kennedy v. Silas Mason Co., 334 U.S. 249, 256 –257 (1948). Many lower court decisions are gathered in 10A Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d, §2728. “Should” in amended Rule 56(c) recognizes that courts will seldom exercise the discretion to deny summary judgment when there is no genuine issue as to any material fact. Similarly sparing exercise of this discretion is appropriate under Rule 56(e)(2). Rule 56(d)(1), on the other hand, reflects the more open-ended discretion to decide whether it is practicable to determine what material facts are not genuinely at issue.Former Rule 56(d) used a variety of different phrases to express the Rule 56(c) standard for summary judgment—that there is no genuine issue as to any material fact. Amended Rule 56(d) adopts terms directly parallel to Rule 56(c).Committee Notes on Rules—2009 AmendmentThe timing provisions for summary judgment are outmoded. They are consolidated and substantially revised in new subdivision (c)(1). The new rule allows a party to move for summary judgment at any time, even as early as the commencement of the action. If the motion seems premature both subdivision (c)(1) and Rule 6(b) allow the court to extend the time to respond. The rule does set a presumptive deadline at 30 days after the close of all discovery.The presumptive timing rules are default provisions that may be altered by an order in the case or by local rule. Scheduling orders are likely to supersede the rule provisions in most cases, deferring summary-judgment motions until a stated time or establishing different deadlines. Scheduling orders tailored to the needs of the specific case, perhaps adjusted as it progresses, are likely to work better than default rules. A scheduling order may be adjusted to adopt the parties’ agreement on timing, or may require that discovery and motions occur in stages—including separation of expert-witness discovery from other discovery.Local rules may prove useful when local docket conditions or practices are incompatible with the general Rule 56 timing provisions.If a motion for summary judgment is filed before a responsive pleading is due from a party affected by the motion, the time for responding to the motion is 21 days after the responsive pleading is due.Committee Notes on Rules—2010 AmendmentRule 56 is revised to improve the procedures for presenting and deciding summary-judgment motions and to make the procedures more consistent with those already used in many courts. The standard for granting summary judgment remains unchanged. The language of subdivision (a) continues to require that there be no genuine dispute as to any material fact and that the movant be entitled to judgment as a matter of law. The amendments will not affect continuing development of the decisional law construing and applying these phrases.Subdivision (a). Subdivision (a) carries forward the summary-judgment standard expressed in former subdivision (c), changing only one word — genuine “issue” becomes genuine “dispute.” “Dispute” better reflects the focus of a summary-judgment determination. As explained below, “shall” also is restored to the place it held from 1938 to 2007.The first sentence is added to make clear at the beginning that summary judgment may be requested not only as to an entire case but also as to a claim, defense, or part of a claim or defense. The subdivision caption adopts the common phrase “partial summary judgment” to describe disposition of less than the whole action, whether or not the order grants all the relief requested by the motion.“Shall” is restored to express the direction to grant summary judgment. The word “shall” in Rule 56 acquired significance over many decades of use. Rule 56 was amended in 2007 to replace “shall” with “should” as part of the Style Project, acting under a convention that prohibited any use of “shall.” Comments on proposals to amend Rule 56, as published in 2008, have shown that neither of the choices available under the Style Project conventions — “must” or “should” — is suitable in light of the case law on whether a district court has discretion to deny summary judgment when there appears to be no genuine dispute as to any material fact. Compare Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case in which there is reason to believe that the better course would be to proceed to a full trial. Kennedy v. Silas Mason Co., 334 U.S. 249 * * * (1948)),” with Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”). Eliminating “shall” created an unacceptable risk of changing the summary-judgment standard. Restoring “shall” avoids the unintended consequences of any other word.Subdivision (a) also adds a new direction that the court should state on the record the reasons for granting or denying the motion. Most courts recognize this practice. Among other advantages, a statement of reasons can facilitate an appeal or subsequent trial-court proceedings. It is particularly important to state the reasons for granting summary judgment. The form and detail of the statement of reasons are left to the court’s discretion.The statement on denying summary judgment need not address every available reason. But identification of central issues may help the parties to focus further proceedings.Subdivision (b). The timing provisions in former subdivisions (a) and (c) are superseded. Although the rule allows a motion for summary judgment to be filed at the commencement of an action, in many cases the motion will be premature until the nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had. Scheduling orders or other pretrial orders can regulate timing to fit the needs of the case.Subdivision (c). Subdivision (c) is new. It establishes a common procedure for several aspects of summary-judgment motions synthesized from similar elements developed in the cases or found in many local rules.Subdivision (c)(1) addresses the ways to support an assertion that a fact can or cannot be genuinely disputed. It does not address the form for providing the required support. Different courts and judges have adopted different forms including, for example, directions that the support be included in the motion, made part of a separate statement of facts, interpolated in the body of a brief or memorandum, or provided in a separate statement of facts included in a brief or memorandum.Subdivision (c)(1)(A) describes the familiar record materials commonly relied upon and requires that the movant cite the particular parts of the materials that support its fact positions. Materials that are not yet in the record — including materials referred to in an affidavit or declaration — must be placed in the record. Once materials are in the record, the court may, by order in the case, direct that the materials be gathered in an appendix, a party may voluntarily submit an appendix, or the parties may submit a joint appendix. The appendix procedure also may be established by local rule. Pointing to a specific location in an appendix satisfies the citation requirement. So too it may be convenient to direct that a party assist the court in locating materials buried in a voluminous record.Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials. One party, without citing any other materials, may respond or reply that materials cited to dispute or support a fact do not establish the absence or presence of a genuine dispute. And a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact.Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.Subdivision (c)(3) reflects judicial opinions and local rules provisions stating that the court may decide a motion for summary judgment without undertaking an independent search of the record. Nonetheless, the rule also recognizes that a court may consider record materials not called to its attention by the parties.Subdivision (c)(4) carries forward some of the provisions of former subdivision (e)(1). Other provisions are relocated or omitted. The requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be attached to the affidavit or declaration is omitted as unnecessary given the requirement in subdivision (c)(1)(A) that a statement or dispute of fact be supported by materials in the record.A formal affidavit is no longer required. 28 U.S.C. § 1746 allows a written unsworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit.Subdivision (d). Subdivision (d) carries forward without substantial change the provisions of former subdivision (f).A party who seeks relief under subdivision (d) may seek an order deferring the time to respond to the summary-judgment motion.Subdivision (e). Subdivision (e) addresses questions that arise when a party fails to support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c). As explained below, summary judgment cannot be granted by default even if there is a complete failure to respond to the motion, much less when an attempted response fails to comply with Rule 56(c) requirements. Nor should it be denied by default even if the movant completely fails to reply to a nonmovant’s response. Before deciding on other possible action, subdivision (e)(1) recognizes that the court may afford an opportunity to properly support or address the fact. In many circumstances this opportunity will be the court’s preferred first step.Subdivision (e)(2) authorizes the court to consider a fact as undisputed for purposes of the motion when response or reply requirements are not satisfied. This approach reflects the “deemed admitted” provisions in many local rules. The fact is considered undisputed only for purposes of the motion; if summary judgment is denied, a party who failed to make a proper Rule 56 response or reply remains free to contest the fact in further proceedings. And the court may choose not to consider the fact as undisputed, particularly if the court knows of record materials that show grounds for genuine dispute.Subdivision (e)(3) recognizes that the court may grant summary judgment only if the motion and supporting materials — including the facts considered undisputed under subdivision (e)(2) — show that the movant is entitled to it. Considering some facts undisputed does not of itself allow summary judgment. If there is a proper response or reply as to some facts, the court cannot grant summary judgment without determining whether those facts can be genuinely disputed. Once the court has determined the set of facts — both those it has chosen to consider undisputed for want of a proper response or reply and any that cannot be genuinely disputed despite a procedurally proper response or reply — it must determine the legal consequences of these facts and permissible inferences from them.Subdivision (e)(4) recognizes that still other orders may be appropriate. The choice among possible orders should be designed to encourage proper presentation of the record. Many courts take extra care with pro se litigants, advising them of the need to respond and the risk of losing by summary judgment if an adequate response is not filed. And the court may seek to reassure itself by some examination of the record before granting summary judgment against a pro se litigant.Subdivision (f). Subdivision (f) brings into Rule 56 text a number of related procedures that have grown up in practice. After giving notice and a reasonable time to respond the court may grant summary judgment for the nonmoving party; grant a motion on legal or factual grounds not raised by the parties; or consider summary judgment on its own. In many cases it may prove useful first to invite a motion; the invited motion will automatically trigger the regular procedure of subdivision (c).Subdivision (g). Subdivision (g) applies when the court does not grant all the relief requested by a motion for summary judgment. It becomes relevant only after the court has applied the summary-judgment standard carried forward in subdivision (a) to each claim, defense, or part of a claim or defense, identified by the motion. Once that duty is discharged, the court may decide whether to apply the summary-judgment standard to dispose of a material fact that is not genuinely in dispute. The court must take care that this determination does not interfere with a party’s ability to accept a fact for purposes of the motion only. A nonmovant, for example, may feel confident that a genuine dispute as to one or a few facts will defeat the motion, and prefer to avoid the cost of detailed response to all facts stated by the movant. This position should be available without running the risk that the fact will be taken as established under subdivision (g) or otherwise found to have been accepted for other purposes.If it is readily apparent that the court cannot grant all the relief requested by the motion, it may properly decide that the cost of determining whether some potential fact disputes may be eliminated by summary disposition is greater than the cost of resolving those disputes by other means, including trial. Even if the court believes that a fact is not genuinely in dispute it may refrain from ordering that the fact be treated as established. The court may conclude that it is better to leave open for trial facts and issues that may be better illuminated by the trial of related facts that must be tried in any event.Subdivision (h). Subdivision (h) carries forward former subdivision (g) with three changes. Sanctions are made discretionary, not mandatory, reflecting the experience that courts seldom invoke the independent Rule 56 authority to impose sanctions. See Cecil & Cort, Federal Judicial Center Memorandum on Federal Rule of Civil Procedure 56 (g) Motions for Sanctions (April 2, 2007). In addition, the rule text is expanded to recognize the need to provide notice and a reasonable time to respond. Finally, authority to impose other appropriate sanctions also is recognized.Changes Made After Publication and CommentSubdivision (a): “[S]hould grant” was changed to “shall grant.”“[T]he movant shows that” was added.Language about identifying the claim or defense was moved up from subdivision (c)(1) as published.Subdivision (b): The specifications of times to respond and to reply were deleted.Words referring to an order “in the case” were deleted.Subdivision (c): The detailed “point-counterpoint” provisions published as subdivision (c)(1) and (2) were deleted.The requirement that the court give notice before granting summary judgment on the basis of record materials not cited by the parties was deleted.The provision that a party may accept or dispute a fact for purposes of the motion only was deleted.Subdivision (e): The language was revised to reflect elimination of the point-counterpoint procedure from subdivision (c). The new language reaches failure to properly support an assertion of fact in a motion.Subdivision (f): The provision requiring notice before denying summary judgment on grounds not raised by a party was deleted.Subdivision (h): Recognition of the authority to impose other appropriate sanctions was added.Other changes: Many style changes were made to express more clearly the intended meaning of the published proposal.‹ Rule 55. Default; Default Judgment up Rule 57. Declaratory Judgment ›

No.The oldest pending non-family¹ litigation I’ve encountered is about 15 years (and that only happens in complex cases with multiple interlocutory appeals are allowed) or nine years with no appeals.The purpose of litigation is the resolution of your dispute. If you are the plaintiff and resist the resolution of the dispute long enough, the court will eventually conclude you’re guilty of abuse of process, as the apparent motivation would be harassment of the defendant. Defendants who prolong litigation have slightly more understandable motives in avoiding judgment, but the court will get tired of them after a while too. The court is there to work “justice”, which is compromised by delaying either exoneration of the defendant or award of judgment in a meritorious claim, and the judgment may be increased by delay damages or attorney fees if the case takes too long to resolve. A party who is adjudged to have been vexatiously delaying the process can be sanctioned, usually by fines, but the sanctions may also include throwing the case out of court.If the lawsuit is “frivolous”, it will likely be dismissed sooner rather than later. It’s much harder to drag out a frivolous case than a meritorious case. Dismissal may occur on the pleadings via a demurrer (at or near the outset) or on a motion for summary judgment (which is a motion filed on the close of discovery by a party that says “on the evidence thus far produced in discovery, there’s no way the other party can win”).Typically there are court rules, such as Fed.R.Civ.P. 16, that provide the court the authority to set case management deadlines. Even in the absence of a formal rule specifying this authority, courts have it as an inherent power. These deadlines are often extended once or twice, but there is no right to an extension; either the parties will agree to it, or the extension will be granted for cause shown, and after a while, the court will deny further extensions; I have seen this happen even when both parties did agree to it. This will result in the case being called for trial, ready or not.Exclusive of any time spent waiting for appeals, the case should reach the trial stage in not more than four years. I know of one pending after nine years, but it involves relatively complicated procedural issues with lots of parties and discovery disputes, and it appears that there were multiple causes of the delay in those situations; the lawsuit has not been fiercely dragged out by particular parties.Usually there’s one appeal available as of right. Any further appeals, which might be to the state supreme court or the United States supreme court, are discretionary and will only be granted if you have identified (1) a significant and interesting area of the law and (2) a compelling reason why the supreme court should consider the case, which might include conflicting decisions below. “The trial court got the facts wrong” is not a convincing rationale for a discretionary appeal. For appeals to the U.S.S.Ct. from a state court, you also must articulate a plausible ground for federal jurisdiction or point to the state court’s reliance on federal constitutional interpretation.You shouldn’t be able to find a lawyer willing to drag your case out “forever”. Although a client to whom “money were no object” would be a pipe dream of me and a lot of other attorneys, there’s an ethical duty on a lawyer’s part not to advance frivolous or otherwise improper arguments to a court. See R.P.C. 3.1:A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.This is backed up in every U.S. court by court rules, cf. Pa. R.C.P. No. 1023.4, 22 N.Y.C.R.R. 130–1.1, Fed.R.Civ.P. 11, etc, allowing the court to sanction parties for filing or advancing frivolous, dilatory, or vexatious positions. These sanctions may take the form of having to pay fines to the court, having to pay the other side’s lawyer, having papers stricken or the case dismissed outright, or limits on the the evidence that may be presented at trial, as the court finds appropriate. The lawyer who participates in this process can also be held liable, which provides us a pretty good reason to tell a vexatious client to go pound sand.(2) Subject to the limitations in subdivision (b), the sanction may consist of, or include, (i) directives of a nonmonetary nature, including the striking of the offensive litigation document or portion of the litigation document, (ii) an order to pay a penalty into court, or, (iii) if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.(3) Except in exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates and employees.Pa. R.C.P. No. 1023.4. In addition to these rules, in Pennsylvania there is a statutory provision allowing parties to be held liable after the fact for malicious litigation:(a) Elements of action.—A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:(1) he acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and(2) the proceedings have terminated in favor of the person against whom they are brought.42 Pa.C.S. § 8351. “Person” includes attorneys: “An attorney who knowingly prosecutes a groundless action to accomplish a malicious purpose may be held accountable in an action for malicious use of process.” Dietrich Indus., Inc. v. Abrams, 309 Pa.Super. 202, 208, 455 A.2d 119, 123 (1982).² A so-called “Dragonetti Act claim” (named after Joseph Dragonetti, a reporter who was unjustly sued and afterward pushed for the enactment of the Act)³ may provide for treble actual damages. § 8353. And, of course, an attorney who partakes in unreasonable litigation tactics may find themself ruining their reputation before the court and facing disciplinary sanctions, like this guy, who made baseless allegations of bias on the part of several judges, and was suspended from practice for five years: In re Robert B. Surrick, 749 A.2d 441 (Pa. 2000).¹ Custody and support cases, while not typically continuously litigated, may nevertheless go on for a very long time. I was involved in one custody case for eight years in a series of modification proceedings. The child is now 19, mercifully for her and the parties, and her majority has removed the authority of the courts to decide her fate. Support cases are also subject to modification for as long as a child remains unemancipated or as long as there are significant arrears on the case, whichever is longer. The oldest open cases in the support office where I work now have been around since the late 1980s, albeit these are now arrears only.² A recent trial court decision, which I think is incorrect, held otherwise: Can Lawyers Get Away With Anything? Court Declares the Dragonetti Act Unconstitutional³ Bochetto & Lentz, Philadelphia Dragonetti Act Lawyers – Filing A Lawsuit With No Probable Cause

Mr. Keith Shannon does an excellent job of summarizing the theory behind forfeiture laws, but there are baseline cases that have required at the least notice and an opportunity for interested parties to be heard:1. Krimstock v. Kelly United States Court of Appeals, Second Circuit. September 18, 2002 306 F.3d 40 (Individuals whose vehicles where seized by city as instrumentalities of crimes brought action challenging city's post-seizure, pre-judgment retention of the vehicles without a prompt opportunity to challenge probable validity of and justification for that deprivation. The United States District Court for the Southern District of New York, 2000 WL 1702035, granted city's motion to dismiss, and plaintiffs appealed. The Court of Appeals held that due process required that prompt post-seizure, pre-judgment hearing to determine whether city was likely to succeed on merits of forfeiture action.)2. U.S. v. James Daniel Good Real Property Supreme Court of the United States December 13, 1993 510 U.S. 43 1993 WL 505539 (Four years after property owner pled guilty to drug charges under Hawaii law, government filed action seeking forfeiture of owner's home and, pursuant to seizure warrant, seized home. The United States District Court for the District of Hawaii, Harold M. Fong, J., granted summary judgment in favor of government, in proceeding brought by owner challenging seizure, and owner appealed. The Ninth Circuit Court of Appeals, 971 F.2d 1376, affirmed in part, reversed in part, and remanded with instructions. Certiorari was granted. The United States Supreme Court, Justice Kennedy, held that: (1) in absence of exigent circumstances, due process clause requires government to afford notice and meaningful opportunity to be heard before seizing real property subject to civil forfeiture, and (2) courts may not dismiss forfeiture action filed within five-year statute of limitations, for noncompliance with internal timing requirements of procedures involving seizure, summary and judicial forfeiture, and condemnation of property for violation of customs laws, made applicable to drug forfeiture cases. Reversed and remanded.More recent cases have reached not only assets directly involved in commission of the alleged crime, but assets traceable to those assets:3. U.S. v. Bonventre United States Court of Appeals, Second Circuit. June 19, 2013 720 F.3d 126 2013 WL 3023011 (Government sought civil forfeiture of assets owned by criminal defendant, his wife, and his son, alleging that the assets were traceable to the alleged fraud for which defendant was awaiting trial. The United States District Court for the Southern District of New York, Barbara S. Jones, J., 2012 WL 2900487, denied defendant's request for a Monsanto-like hearing regarding his claim of insufficient alternative assets to fund counsel of choice in the criminal case. Criminal defendant appealed. Held: Whatever the full extent of the Sixth Amendment's protection of one's right to retain counsel of his choosing, that protection does not go beyond the individual's right to spend his own money to obtain counsel, and accordingly, neither the Fifth Amendment right to due process nor the Sixth Amendment right to counsel requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay that defendant's legal fees; no violation of the constitutional rights to due process and counsel of choice occurs when, after probable cause that assets are forfeitable is adequately established, the government obtains an order barring a defendant from dissipating his assets prior to trial. The constitutional rights to due process and counsel of choice entitle a presumably innocent criminal defendant to an adversarial, pre-trial Monsanto hearing to address two questions regarding forfeiture of assets that could otherwise be used to retain counsel: (1) whether there is probable cause to believe that the defendant committed the crimes providing a basis for forfeiture, and (2) whether there is probable cause to believe that the assets are properly forfeitable. (My bolding as this is where the justification for forfeiture rests – notice, an opportunity to be heard, and a showing of probable cause for guilt).Note that to maintain a forfeiture, the Government has to make a showing of admissible evidence that a reasonable would think it probable that the defendant is guilty of the accused crime. If courts will not permit an exception to seizures to obtain criminal defense counsel - a right that would otherwise be funded by taxpayers - they are not going to make exceptions for other expenses that are not based in the Constitution.The above case was a reflection of earlier decisions on the same issue, including:4. Caplin & Drysdale, Chartered v. U.S. Supreme Court of the United States June 22, 1989 491 U.S. 617 109 S.Ct. 2646 87-1729 (Narcotics defendant's counsel challenged validity of forfeiture statute to extent that it prevented defendant from paying attorney fees; held, statute, which provided no exception for property used to pay attorney fees, did not impermissibly burden defendant's Sixth Amendment right to retain counsel of his choice.)I close with a wonderfully named case that illustrates Mr. Shannon’s discussion:5. U.S. v. Ninety Three Firearms United States Court of Appeals, Sixth Circuit. May 27, 2003 330 F.3d 414 2003 WL 21210444 01-5348 ((1) Government's filing of administrative forfeiture proceeding with respect to 93 firearms and ammunition within 120 days of their seizure tolled statute of limitations requiring that any action or proceeding for forfeiture of firearms be commenced within 120 days of seizure, and thus government's subsequent action for judicial forfeiture of same firearms five years after seizure was timely; although meaning of any action or proceeding was ambiguous, statute expressly incorporated provisions of the Internal Revenue Code, which authorized five-year statute of limitations for judicial forfeiture actions, administrative forfeiture proceedings were favored as more efficient and less burdensome, and requiring both administrative and judicial forfeiture proceedings to be filed within 120-day period after seizure would be unreasonable; (2) owner's due process rights were not violated by five-year delay in filing judicial forfeiture proceeding because, with respect to firearms, a potential claimant has no right to contest seizure or forfeiture of weapons that are intrinsically illegal in character because he would have no property right in such a weapon; (3) District court was not required to dismiss based upon government's failure to serve claimant within 120 days after filing forfeiture complaint; Owner of firearms seized by government during execution of search warrant waived argument on appeal that government's forfeiture action, accrued, for limitations purposes, on date upon which government allegedly knew that he had prior felony conviction and was aware that he possessed firearms illegally, rather than on date of the actual seizure of the firearms, where owner failed to raise argument before the district court; and (4) any error in failing to inform owner of summary judgment requirements was harmless. Due process rights of owner of firearms were not violated by government's five-year delay after seizure of firearms in bringing civil forfeiture proceeding; initial three-year period of delay was justified by pending proceeding for remission and criminal prosecution against defendant, during remaining two years owner did not actively seek return of firearms after his petition for remission was denied, and owner was not prejudiced by delay.)Note: I should mention that, for particularly convoluted reasons, 18 U.S.C. sec. 924, on which forfeiture in this case was based, has been found unconstitutional in whole or some undefined part by numerous courts and not replaced by legislative action, although there have been (so far) no less than 51 proposed pieces of replacement legislation, so this whole issue sometimes goes forward under the only authority around - judicial action. Write your elected representative and complain. It is a ridiculous situation that members of Congress seem too busy to address, even though such things are part of their primary responsibilities.As can be readily seen, forfeiture is conditioned upon compliance with constitutional safeguards and, while admittedly harsh because it takes place prior to conviction and depends upon a fiction, is intended to safeguard the interests of taxpayers by permitting recovery of some or all of the costs of the prosecution from the defendant before the defendant has an opportunity to transfer or dissipate those assets. I used to occasionally be called upon to assert the rights of a secured creditor holding a lien on one or more of the seized assets and never heard a peep from any defendant about getting the property back once it was turned over to the creditor. Perhaps it would only have been re-seized; I never knew.