By Judge Dale Tipps, Murfreesboro
This article will tackle a very “august” topic: tips for your next summary judgment motion.
Summary judgment traces its roots back to England as a means of hastening litigation and potentially the disposition of cases, principally debtor-creditor actions. Its first codification occurred in 1855 when Parliament passed the Keating Act. Summary judgment hopped the pond and formally became a part of American jurisprudence in 1938 when it was incorporated into the Rules of Civil Procedure, although some states had similar procedures already on the books.
For decades, summary judgment was disfavored and rare in Tennessee workers’ compensation cases. But that changed with the 2013 Reform Act; we regularly see motions for summary judgment these days.
Unfortunately, we also see some recurring problems with those motions. Here are a few pointers to keep in mind the next time you file one.
Don’t forget the local rules.
Rule 0800-02-21-.18(a) requires the moving party to provide a “non-moving, self-represented party with a copy of the rule or statute on which the dispositive motion is based and must state any deadline and/or requirement to respond.”
Pretty straightforward, right? But just complying with the rule isn’t enough – you also need to demonstrate your compliance to the court. I recently denied a motion because there was no indication that the attorney had provided this information to the self-represented employee. The attorney had to re-file his motion, which was eventually successful.
The delay was regrettable, especially since the attorney later told me he had sent all the information to the employee the first time. But what’s a judge to do? I can’t call up the attorney and ask (really, I can’t) or just assume compliance. We rely on you to let us know that you’re complying with the rules. Perhaps the easiest way to do this is to file the copies and notification with the Clerk when you file the motion.
While we’re talking about Rule 0800-02-21-.18, please note that section (b) requires the moving party to contact court staff and obtain a hearing date more than thirty days after the filing date of the dispositive motion. You must also write the motion in bold print, “THIS MOTION WILL BE HEARD ON ____, 20___, AT __A.M./P.M.” The rule also provides that if you don’t set a hearing date, the Court may construe your motion as abandoned. I’ve had to do this on a couple of occasions.
These rules aren’t limited to summary judgment but apply to all dispositive motions, including motions to dismiss. Please don’t just file a motion to dismiss and expect the court to rule on it.
Don’t forget rule 56.03.
It’s rare that someone fails to file a statement of facts, but let’s look at the language of 56.03. “[A]ny motion for summary judgment . . . shall be accompanied by a separate concise statement of the material facts as to which the moving party contends there is no genuine issue for trial.”
I’ve started seeing motions that include the statement of facts in the memorandum or the motion. Is that a “separate concise statement?” Could blending it into the other documents mislead a self-represented litigant as to her duty to respond to each alleged fact? Do we really want to find out? If not, I’d suggest making the facts a discrete document.
56.03 also requires, “Each fact shall be set forth in a separate, numbered paragraph.” When I read a fact paragraph that takes up a third of the page and contains multiple allegations (and results in long complex responses), it tends to obfuscate which facts are being offered or denied, and I might have difficulty determining whether the material facts are all undisputed. In my opinion, the most important thing you can do to improve your chances for a successful motion for summary judgment is to take plenty of time to distill each material fact into a single sentence or short paragraph. If it’s just procedural history or not material to the legal issue, don’t include it. If it contains argument, take the argument out. The same goes for legal conclusions. Arguments and conclusions are easily denied and belong in the memorandum.
Finally, “Each fact shall be supported by a specific citation to the record.” Many summary judgment motions get filed after an expedited hearing, and I’ve seen some citations to my conclusions in an expedited hearing order as the source of a proposed undisputed fact. This is problematic. Legal conclusions in an expedited hearing are not facts and are based on a different standard of proof than those from a final hearing. Even if the expedited hearing order contains facts, you should probably cite to the original source of the facts in the record rather than the order.
So, in conclusion, summary judgment in workers’ compensation is now much more common. But it does entail drafting a motion and supporting documents that comply with a fairly detailed process under Rule 56 and the Court’s own rules. Pay attention to those rules to increase your chances of success.