Defending Against Motion For Summary Judgement

QUESTION:

How do I defend against a motion for summary judgment?

ANSWER:

When faced with a potentially dispositive motion, such as summary judgment, it’s critical to know and understand the applicable standard. To prevail on summary judgment the moving party must demonstrate that (1) there are no genuine issues of material fact in dispute, and (2) that the moving party is entitled to a judgment as a matter of law. Please note that “[s]ummary judgment, when appropriate, may be rendered against the moving party.” Massachusetts Civil Procedure Rule 56(c). “This is eminently logical. Because by definition the moving party is always asserting that the case contains no factual issues, the court should have the power, no matter who initiates the motion, to award judgment to the party legally entitled to prevail on the undisputed facts.” Reporter’s Notes to Massachusetts Civil Procedure Rule 56(c).

Affidavit Issue:
“(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Massachusetts Civil Procedure Rule 56(e).

“(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.” Massachusetts Civil Procedure Rule 56(g). Given the foregoing, the non-moving party (you) should submit his/her own affidavit in opposition to the moving party’s (Bank) motion for summary judgment and supporting documentation.

Your affidavit could highlight the “lies” contained in the Bank’s affidavit or make the case for why the court should find it in your favor. Stated differently, to successfully defend against summary judgment the non-moving party (you) should seek to demonstrate that indeed there are material facts in dispute. Alternatively, the non-moving party (you) can argue that the undisputed facts support a judgment as a matter of law in your favor. The former and latter are an either-or proposition since a non-moving party’s argument that raises a material factual dispute, if successful, bars the court from issuing a judgment as a matter of law in favor of any party, including the non-moving party. You should have a litigation attorney handle the summary judgment for you.

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