Rule 12. Defenses and Objections: When
and How Presented; Motion for
Judgment on the Pleadings;
Motions; Waiving Defenses; Pretrial Hearing
. . .
(c) Motion for Judgment on the Pleadings. After the pleadings are
closed — but early enough not to delay trial — a party may move for
judgment on the
(d) Result of Presenting Matters Outside the Pleadings. If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56. All parties must be given a reasonable
present all the material that is pertinent to the motion.
Rule 56. Summary Judgment
(a) Motion for Summary Judgment or Partial Summary Judgment.
A party may move for summary judgment, identifying each claim or
defense — or the part of each claim or defense — on which summary
judgment is sought. 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. The
court should state on the record the reasons for granting or denying
(b) Time to File a Motion. Unless a different time is set by
local rule or the court orders otherwise, a party may file a motion for
summary judgment at any time until 30 days after the close of all
(1) Supporting Factual Positions. A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. A party may object that the material cited to support
or dispute a fact cannot be presented in a form that would be
admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant
shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party
fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c),
the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials —
including the facts considered undisputed — show that the movant is
entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.
(g) Failing to Grant All the Requested Relief. 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 the fact as
established in the case.
(h) 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 — after notice and a reasonable
time to respond — may order the submitting party to pay the other party
the reasonable expenses, including attorney’s fees, it incurred as a
result. An offending party or attorney may also be held in
contempt or subjected to other appropriate sanctions.