TITLE SEVEN — JUDGMENT
Rule 38. Summary Judgment
For a Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim, or to obtain a declaratory judgment, may, at any time after the expiration of seven (7) days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for summary judgment in that party’s favour upon all or any part of the claim.
For a Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted, or a declaratory judgment is sought, may at any time move with or without supporting affidavits for summary judgment in that party’s favour as to all or any part of the claim.
Outside Limit. Unless the court orders otherwise, a motion under this rule shall be filed not later than forty-eight (48) hours before the commencement of trial.
Identifying the Relief Sought. The motion shall identify each claim or defence, or the part of each claim or defence, on which summary judgment is sought, and shall state the grounds with particularity.
The Standard. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. A dispute is genuine only if the evidence in the record would permit a reasonable fact finder to resolve it in favour of the non-moving party; a fact is material only if it may affect the outcome under the governing law. The court shall not weigh the evidence or determine credibility, and shall draw all reasonable inferences in favour of the non-moving party. The court shall state on the record the reasons for granting or denying the motion.
Statement of Material Facts. The motion shall be accompanied by a separate statement of the material facts as to which the movant contends there is no genuine dispute, each fact set forth in a separately numbered paragraph and each followed by a citation to the record supporting it. A party opposing the motion shall file a response which:
admits, denies, or states an inability to admit or deny each numbered paragraph, with a citation to the record supporting each denial; and
sets forth, in separately numbered paragraphs, any additional material facts which the opposing party contends are in dispute or which preclude judgment, each followed by a citation to the record.
The electronic filing system validates no requirement of form. Compliance with this subdivision is a matter for the clerk’s judgment on review under Rule 5.3 and for the court on the motion.
Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed shall support the assertion by:
citing to particular parts of materials in the record, including depositions, transcripts and recordings of depositions, documents, electronically stored information, records of the proceeding communications of the case, in-game records and logs, affidavits or declarations, stipulations, including those made for the purposes of the motion only, admissions, answers to interrogatories, or other materials; or
showing that the materials cited by the adverse party do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.
A citation to the record shall identify the material with sufficient particularity to permit the court and the opposing party to locate it, by Bates number of the filing, by page or paragraph, by timestamp in Coordinated Universal Time, or by the equivalent.
Objection That a Fact Is Not Supported by Admissible Evidence. 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 shall be made in the response or reply and shall state the ground. The burden is then on the proponent to show that the material is admissible as presented, or to explain the admissible form which is anticipated.
Materials Not Cited. The court need consider only the cited materials, but it may consider any other material in the record.
Affidavits and Declarations. A supporting or opposing affidavit or declaration shall be made on personal knowledge, shall set out facts that would be admissible in evidence, and shall show affirmatively that the affiant or declarant is competent to testify to the matters stated. An affidavit shall be sworn before the clerk or a deputy clerk under 3 R. Stat. § 131.104, or before a notary public. In place of an affidavit, a party may submit an unsworn declaration subscribed under penalty of perjury and signed as provided in Rule 5.2; such a declaration has the force and effect of an affidavit for all purposes of this rule. An affidavit or declaration made on information and belief, or which states only argument or legal conclusion, shall be disregarded to that extent. The court may permit affidavits and declarations to be supplemented or opposed by depositions, answers to interrogatories, admissions, or further affidavits and declarations.
When Facts Are Unavailable to the Non-Movant. If a party opposing the motion shows by affidavit or declaration that, for specified reasons, that party cannot present facts essential to justify the opposition, the court may:
defer consideration of the motion or deny it;
allow time to obtain affidavits or declarations or to take discovery;
order that specified discovery be completed within a stated period; or
issue any other appropriate order.
The showing shall identify the facts sought, the basis for believing they exist, and the manner in which they would preclude summary judgment. A party who has failed to pursue available discovery without excuse is not entitled to relief under this subdivision.
Failing to Properly Support or Address a Fact. If a party fails properly to support an assertion of fact, or fails properly to address another party’s assertion of fact as required by Rule 38(6) and Rule 38(7), the court may:
give an opportunity properly to support or address the fact;
consider the fact undisputed for the purposes of the motion;
grant summary judgment if the motion and supporting materials, including the facts considered undisputed, show that the movant is entitled to it; or
issue any other appropriate order.
A party opposing a motion made and supported as provided in this rule may not rest upon the mere allegations or denials of that party’s pleading.
Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
grant summary judgment for a non-movant;
grant the motion on grounds not raised by a party; or
consider summary judgment on its own initiative after identifying for the parties the material facts that may not be genuinely in dispute.
Partial Summary Judgment; Facts Established. A summary judgment, interlocutory in character, may be rendered upon the issue of liability alone although there is a genuine dispute as to the amount of damages. 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 that fact as established in the action. An order under this subdivision is not a final judgment and is subject to revision under Rule 36(6).
Hearing; Disposition. A motion under this rule is governed by Rule 7.1. The court may hear argument in the proceeding communications of the case or may decide the motion upon the papers. An order granting summary judgment upon all claims as to all parties is a judgment and shall be entered as provided in Rule 40.
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 shall, after notice and a reasonable time to respond, order the submitting party to pay to the other party the reasonable expenses, including attorney’s fees, incurred as a result. An offending party or attorney may also be held in contempt under Rule 53 and R.C.C. § 1.08, subjected to sanctions under Rule 11, or subjected to the sanctions prescribed by 7 R. Stat. §§ 132.301 through 132.304 and Rule 41.
Denial Not an Adjudication. The denial of a motion under this rule is not an adjudication of any issue and shall not be received in evidence at trial.