NOTE: THE TAIL WAGGING THE DOG: LOCAL SUMMARY JUDGMENT RULES THAT DEEM FACTS ADMITTED Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your lexis.com® ID to access the full text of this article.
-OR-
Order the full text of this article if you do not have a lexis.com® ID.
 
Price: 
US $22.00 (+ tax)
 
 

Copyright (c) 2009 Yeshiva University
Cardozo Law Review

NOTE: THE TAIL WAGGING THE DOG: LOCAL SUMMARY JUDGMENT RULES THAT DEEM FACTS ADMITTED

May, 2009

CARDOZO LAW REVIEW

30 Cardozo L. Rev. 2223

Author

Nathaniel S. Boyer*

Excerpt



Introduction
 
Federal summary judgment procedure has an expansive and tedious underbelly: local rules. Over sixty districts have enacted rules 1 mandating that the moving party submit some sort of accompanying Statement of Material Facts (SMF), and almost all require a response-in-kind from the non-moving party. 2 These local SMF rules were created to streamline the summary judgment process, 3 guiding the court through the facts so that the judge can more easily determine whether there is a "genuine issue as to any material fact." 4

But many of these local rules go too far. Usually, assertions made in the SMFs are deemed "admitted" if they are not controverted in the non-movant's response to the SMF. 5 Thus, the tail is wagging the dog; a literal reading of many of these rules would suggest that, where an SMF goes uncontroverted, the court does not need to examine the record at all, and can instead rely entirely on a bald assertion in the SMF and grant a motion for summary judgment. Taken to its logical extreme, a plaintiff, bearing the burden of proof, could file a motion for summary judgment without providing any evidence, but nevertheless win on the strength of unsupported assertions in its SMF. 6

This scenario arises with a fair amount of frequency, at least on occasions when the defendant has moved for summary judgment. 7 The Second Circuit was presented with one particularly stark example in 2003. 8 The plaintiff (Giannullo) ...
 
 
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.
Search Documents
 
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy
 
 
 
 

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

 
LexisNexis Store
Research Now - Go to lexis.com
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities