Rule 56 and the Arizona Rules of Civil Procedure
One of the key principles underlying Arizona Rule of Civil Procedure 56 is its intention to ensure that parties do not face undue exposure at trial, but also its goal of holding trials only where there are issues that are legitimately in dispute. For this reason, Rule 56 should not be considered an extreme remedy, but the necessary byproduct of a system where cases are tried to juries and judges on a regular basis, and jury trials are afforded a constitutional guarantee. When parties live with the possibility that they will be offset by the unfettered discretion of juries, where certain voices carry more weight than others in a system where there can be only one winner, the system should only allow those clients to face the risk of trial, and all of its accompanying exposure, when there are real factual issues that would prevent them from receiving the relief they seek.
Accordingly, the rule allows courts to issue summary judgment in an early attempt to avoid the need for litigation. Rule 56 allows a party to move for summary judgment "for all or part of the relief sought," in an effort to either narrow the issues before the court or remove them altogether. The 1984 amendments to Rule 56 even clarified that summary judgment would be granted as a matter of right "when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Under the previous version of Rule 56 , the Arizona Supreme Court had defined summary judgment in part as being a "drastic procedure" that denied a party the opportunity "to present evidence in support of its contentions" and allowed "the possibility of a meritorious defense being deprived of a hearing." Such results, the court concluded, made summary judgment a "harsh" remedy.
The "harsh" aspect of summary judgment, of course, comes in the granting of judgments in situations where the parties have differing recollections of events or where the parties’ opposing accounts of events was within the scope of reasonable possibilities. Making parties litigate claims and defenses even when it is reasonable for them to perceive the other’s account to be the more likely scenario, could, under the old Rule 56, deprive parties of their ability to present their claims and defenses. But in 1984, the Arizona Supreme Court noted that summary judgment did not undercut a party’s "opportunity ‘to present evidence in support of its contentions,’" for at least two relevant reasons: first, "it is immaterial whether that evidence is presented by means of an affidavit or by oral testimony or other cognizable evidence presented at a trial," and second, because "[w]hen the moving party makes a properly supported motion for summary judgment, the burden of production shifts to the non-moving party but not the burden of persuasion."
Arizona’s Summary Judgment Legal Standard
Under Arizona Rule of Civil Procedure 56, a case may be disposed of through summary judgment (that is, dismissal of a claim) if the moving party demonstrates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." While this standard is deceptively simple, its construction is not and may take a full research bench to fully comprehend. A "genuine dispute" is defined as a genuine need for trial because issues can be reasonably decided only by a trier of fact. When taking the facts alleged by the nonmoving party as true, if no reasonable jury could find in their favor, there is no "genuine" issue. Arguments in favor of granting summary judgment are made through affidavits, depositions, and discovery papers. Even so, neither the moving party nor the nonmoving party may rely solely on these submissions. "You must show a lack of evidence to oppose summary judgment rather than merely point out that discovery is incomplete or that further discovery time should be allowed," warned Justice Carlos Cornejo in the seminal 1996 case of Ortega v. Scottsdale Medical Imaging Ltd.. If you couldn’t get discovery and bring along your declarations and other evidence too, what would the purpose of summary judgment be? Arizona attorneys wishing to oppose motions for summary judgment who can do so should, of course, first seek discovery to gain the facts they will need at trial. But if the motion is not timely, or if the motion can be defeated by other means, they should also not hesitate to oppose it on those other grounds. The Court does grant some leeway for parties opposing a summary judgment motion. In case of doubt as to whether the factual averments of the nonmoving party are genuine, the judge may conclude that the factual issue is best resolved at trial and deny summary judgment. Other than where the court decides that the material facts are in dispute, granting a motion for summary judgment is purely discretionary. No single "bright line" rule exists, but the above-mentioned factors are all important considerations. Although there may be a duty to make an appropriate decision in cases in which the Judge is confronted with a bona fide request for summary judgment, the appropriate remedy in the event of a failure to do so will depend upon the circumstances of the case. In circumstances where the failure to decide a summary judgment motion would require a new trial to correct the error, reversal is required. The decision of whether to grant summary judgment has great significance. The parties must struggle with the facts, and while they are struggling, likely at great expense, the case is tussling between one court or another, bouncing from Division to Division should a conflict arise.
Rule 56 Motion Filing: Procedural Guidelines
Once a party determines that summary judgment is appropriate, it must file a motion for summary judgment with the court under Rule 56. At least 30 days before the motion is filed, parties must exchange copies of all support papers, such as affidavits and other documents they intend to file or refer to in their motion. The parties must then meet at least 14 days before the filing or hearing of the motion to confer, either in person or by telephone, to try to resolve the motion without involving the court. If the motion is not resolved, the moving party must file the motion with the court and serve the opposing party with the motion and support papers at least 7 days before the hearing. If the motion raises only legal issues and does not require a hearing, it may be decided without a hearing on 7 days’ notice. The time limit for filing the motion may be shortened if the opposing party consents to a shorter time.
The motion must contain a concise statement of the facts and legal reasons supporting the motion. It must also include a separate statement of the undisputed facts that justify granting the motion. The separate statement seeks to address factual assertions and legal arguments made in a party’s motion or response by setting forth numbered paragraphs that are wholly self-contained, such that the cited record evidence supports only the proposition stated in that paragraph. The same procedure applies to the responding party’s statement. In both cases, the parties must cite only to "those parts of the record that support or oppose a motion." Parties are not allowed to incorporate by reference or rely upon a specific page or paragraph within a supporting document. Doing so would prevent a party’s opponent from efficiently locating record evidence that supports or disputes the position stated within that supporting document.
If the court grants the motion for summary judgment, it may grant judgment on claims or defenses, or portions thereof, and may direct the entry of a final judgment on one or more claims or defenses, or portions thereof. Entry of a partial or final judgment is generally accomplished through preparation of a formal judgment document, unless the parties file a joint request for entry of a judgment in favor of the party making the motion and against the other party, which may be entered by the clerk if it is in accordance with the terms of the parties’ stipulation and, in case of multiple parties, that each party affected by the stipulation has signed the stipulation.
If the court denies the motion, it may, in a final order, direct entry of an interlocutory order denying the motion as to the entire action or some claim or defense. The entry of a final order denying a summary judgment motion on fewer than all claims or defenses does not bar a party from seeking summary judgment on a later date as to a claim on which summary judgment was not sought earlier in the action.
Responding to a Rule 56 Motion
A Rule 56 motion can be effectively opposed by a well-argued response that demonstrates that there are indeed genuine issues of material fact that should be presented in front of the trial court. The threshold requirement to beat a summary judgment motion is that a genuine dispute exists over a material fact, as we previously discussed. The respondent or defendant will often be able to do this, as the Arizona rules specifically state that the party opposing the motion may show that there are "specific facts showing that there is a genuine issue for trial," or is otherwise able to "demonstrate to the Court that the facts essential to any motion are unavailable to that party." (Rule 56(f).) If a party is unable to present a specific fact that would be relevant to the case, they may also be able to demonstrate its unavailability or that no further discovery could allow the party to support or oppose the motion. This part of the rule allows flexibility with legal proceedings and offers hope to parties that maintain legitimate claims and defenses but need more time to gather supporting evidence. Because a summary judgment motion disposes of the case in favor of the moving party, it is not intended to dispose of a case where the moving party has a shaky or incomplete record. Summary judgment tends to bend in favor of stronger arguments and thus demands a robust admissible factual record and strong supporting legal authority from the movant. (In re Estate of Braden, 144 Ariz. 149, 154 (Ariz. Ct. App. 1984).) If the moving party is able to meet the requirements of Rule 56, the burden of proof shifts to the responding party to demonstrate that a disputed issue exists, which must be supported by "concrete evidence . . . sufficient to allow the fact-finder to decide the issue one way or the other." (Cannon v. Ariz. Land & Cattle, LLP, 220 Ariz. 414, 417 (Ariz. Ct. App. 2009); State v. Fletcher, 224 Ariz. 559, 563 (Ariz. Ct. App. 2010).) However , Arizona courts have been clear that a difficult burden does not require a respondent that is only answering a motion for summary judgment to prove every element of a claim. And a responding party need not submit affidavit or documentary evidence in order to meet its burden. In order to survive a motion for summary judgment – and based on the specificity and sufficiency of the test articulated by the Ninth Circuit – it is sufficient for the responding party to defeat the movant’s support by posing a genuine issue of material fact for the jury to hear. The easiest way to show the existence of a disputed fact is to test the specificity and reliability of the moving party’s support. (A set of interrogatories may be useful to test the responding party’s evidence, if any.) An example of what it means to show that an issue is in dispute arose when a creditor sued to recover payment on its credit card from a debtor. The debtor allegedly charged $2,500 on his credit card account with the creditor and subsequently refused to make payments on the balance. At trial, the creditor relied on a witness who had worked for them; however, the debtor noted that the witness’ testimony at trial varied from the affidavit on which the creditor based its summary judgment motion. Because the witness’ testimony on the cardholder agreement conflicted with and was never explained by the affiant, the court found that a genuine dispute existed on an essential basis for the grant of summary judgment. (Fletcher, 224 Ariz. at 563.) As an alternative response to Rule 56 motion, the responding party may also file an affidavit or declaration from a credible witness authenticating the information being presented in the party’s favor. (Fletcher, 224 Ariz. at 563.) Such "sworn or certified" statements may be presented based on personal knowledge and may set forth facts, must be such that the witness would be admissible to testify based on personal knowledge, and must set forth facts as to why the witness cannot present that information in person. (A.R.S. §12-2674 (2012).) However, a party responding to a Rule 56 motion does not need to present affidavits from a party for opposition and may present "any other competent evidence," so long as it is deemed as "sufficient to withstand a motion for directed verdict." (Tornabene v. Rockwell Int’l Corp., 150 Ariz. 410, 414 (Ariz. Ct. App. 1986); see also Johnson v. City of Tucson, 151 Ariz. 244, 247-48 (Ariz. Ct. App. 1986).)
Summary Judgment: Litigation Implications
An appropriate summary judgment can have a dispositive effect on the course of the litigation, leading to a prompt resolution of the dispute and a substantial reduction in litigation costs. For plaintiffs, an effective summary judgment eliminates the need for a trial, and may resolve the entire case, or at least shorten the remaining portion of the case to only the damages phase. For defendants, an appropriate motion can eliminate the need for extensive discovery or preparation for trial. Summary judgment may also eliminate class certification, or resolve damage issues, which can result in settlement of the entire case. If the case proceeds beyond a summary judgment ruling, it is important for an attorney to recognize the impact of the summary judgment ruling on the type of dispute the client is involved in.
Discussion of Rule 56 Cases in Arizona
The interpretation and application of Arizona Rules of Civil Procedure 56 have been strongly influenced by a number of significant cases. Chief among these cases is Celaya v. Montes de Oca, a 1990 decision of the Arizona Supreme Court.
In Celaya, the Court addressed the proper standards for granting and opposing summary judgment. The Court reaffirmed the "genuine factual issues" standard set forth in the former Rule 56, which required that, to defeat a motion for summary judgment, the party having the burden of proof must establish specific facts sufficient to render judgment in that party’s favor at trial. In a footnote, the Court noted the differences between former Rule 56 and amended Rule 56, but cited no authority for its view that the amended Rule had not lowered the threshold for granting summary judgment.
The Court’s statement was groundless, however, as the "genuine issue of fact" standard no longer applied. The amended Rule 56 deletes this language and replaces it with simply a statement that a summary judgment may be granted if there is no genuine issue of material fact. Instead of requiring a party opposing summary judgment to show that it could prevail at trial, all that is now required is that the non-moving party show that there is a factual dispute, and that the dispute is material to the moving party’s case.
Celaya also significantly changed the burden of proof on parties to a motion for summary judgment. The Court held that a "motion for summary judgment has two parts. First, assuming the moving party has the burden of proof on the claim, the movant will have to come forward with evidence that would entitle it to a directed verdict at trial. Next , the non-moving party has only to go forward with evidence to support its claim. The trial court decides whether the facts in the record are such that the movant is entitled to a directed verdict under Rule 50(a) at trial. If so, summary judgment is proper. If not, summary judgment cannot be granted." Summary judgment could be granted if there was no doubt as to the sufficiency of the facts on the record as a matter of law, but if the sufficiency of the facts was within the authority of the trial judge to determine, summary judgment or other disposition could not be made.
Following Celaya, the Arizona Supreme Court decided Murphy v. Carron, which established the standard of review for summary judgments. Under Murphy, an appellate court is supposed to review the granting of a summary judgment as a question of law, and should affirm the trial court’s ruling on summary judgment if, based on only admissible evidence submitted in the pleadings, depositions, answers to interrogatories, admissions on file and affidavits, "no reasonable jury could find for the non-moving party." Later, the Arizona Supreme Court in Orme School v. Kent, redefined the Murphy standard, and stated that the Murphy standard was no longer good law. Orme states that, on appeal, an order granting summary judgment is reviewed de novo. However, the language in Orme requires that the parties have committed themselves to the record being reviewed. The majority in Orme also indicated that, even though summary judgment should be reviewed de novo, if materials outside the four corners of the pleadings are before the trial court, then the trial court’s ruling is reviewed under the abuse of discretion standard. The dissent disagrees with adopting the new standard requiring de novo review, and instead holds that Murphy is applicable to all summary judgments.