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Summary Judgment: A Legal Procedure to Limit Litigated Claims

What it is, how it can be used

In a lawsuit, a plaintiff bears the burden to prove the case he/she brings against a defendant. Summary judgment is a legal procedure by which a judge, rather than a jury, can decide a claim or part of the claim for either the plaintiff or defendant. This before-trial process is intended to expedite the proceedings and resolve some or all of the issues. 

The uniform standard in the federal court system is referred to as the Celotex standard after the 1986 U.S. Supreme Court product liability decision, Celotex Corp. v. Catrett. This has now been adopted by 39 states. 

When summary judgment plays a role

Civil litigation invariably involves multiple claims. Plaintiffs will often assert alternative “theories of recovery” to enhance the chances of winning. A routine breach of contract claim may also include an additional claim for violation of the state uniform commercial code and a claim under the state’s consumer fraud laws, which provide for a statutory private right of action, usually with the ability to recover enhanced damages and attorney’s fees. Multiple claims mean the case as a whole now becomes more complex with each theory of recovery involving unique elements to be proved. 

Complexity for a jury compounds what is already an uncertain outcome. And because the amount of money it takes to settle a claim depends on what the potential recovery/exposure may be at trial, an early determination as to which of several claims can get before the jury is critical. 

Because not all of the facts are known and not all evidence is established at the beginning of a lawsuit, a plaintiff may assert those claims for which a good faith basis exists. However, as a case progresses through the process of document production and depositions (“discovery”), the facts that can be proved at trial come more into focus. This is where summary judgment plays a role. 

Under Federal Rule of Civil Procedure 56, a party may request to the court that summary judgment be entered in its favor on all or part of the overall claim. Most states have either adopted the language of FRCP 56 or some similar version. FRCP 56 states: 
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.

How summary judgment is used

The key is showing the court there is no “dispute” as to material facts and that the court can decide the issue without submitting it to a jury. 

For example, if a plaintiff sues his/her former employer for violation of the federal Age Discrimination in Employment Act (ADEA), which applies to private employers with 20 or more employees, and it is undisputed that the employer had only 19 employees before plaintiff’s termination, a court will grant summary judgment against the plaintiff on that discrete claim. Keep in mind, however, the plaintiff may have other asserted claims, such as state-based common law or statutory claims that would not be affected by the limited summary judgment on the ADEA claim. Those claims may survive. But through summary judgment the defendant/employer has effectively limited the claims and potential recovery to exclude the claimed right under the federal statute.

Traditionally, trial courts tend to err on the side of letting juries decide cases and have long considered summary judgment a drastic measure. However, the U.S. Supreme Court stated in Celotex that the summary judgment procedure is an integral part of the federal judicial system and should not be looked on unfavorably. 

Prior to Celotex, it was the general rule that the party seeking summary judgment had to affirmatively disprove an element of the opponent’s claim or defense. In the ADEA claim described above, such affirmative proof might be in the form of an affidavit from the employer/defendant stating that only 19 employees were employed. The significant shift brought on by the federal Celotex standard is that a defendant may now be successful on a summary judgment motion simply by demonstrating that a plaintiff has proffered no evidence of one of the elements of the claim. 

Now, applying Celotex in our ADEA example, summary judgment would be warranted if the employer/defendant shows that the plaintiff has not offered evidence of 20 employees. It may not seem to be a significant distinction in this basic example. However, in complex commercial and construction defect claims, the difference is important. Construction defect claims can involve many parties, and involve many contracts with a significant number of crossclaims and third-party claims, adding to the complexity of the overall litigation. But not every party has the same obligation. 

In Florida, for instance, product manufacturers may not be sued in tort (i.e., claims based on negligence or strict products liability) for construction defect damage to the structure. Summary judgment is a procedure to have such a claim dismissed from the case. The adoption of the Celotex standard heightens the level of evidence required of a party asserting defect claims to oppose summary judgment, thereby limiting potential exposure for the manufacturer. 


John Nolan

John Nolan

John Nolan is an attorney with The Gary Law Group, a law firm based in Portland, Oregon, that focuses on legal issues facing manufacturers of windows and doors. He can be reached at 217/526-4063 or