Miss. R. Civ. P. 56
Advisory Committee Notes
It is important to distinguish between a Rule 56 motion for summary judgment, a Rulemotion to dismiss for failure to state a claim, and a Rule motion for judgment on the pleadings. When ruling on a Rule 56 motion for summary judgment, the trial court may "pierce the pleadings" and consider extrinsic evidence, such as affidavits, depositions, answers to interrogatories, and admissions. When ruling on a Rule motion to dismiss for failure to state a claim, the trial court may not "pierce the pleadings" and shall only consider the allegations contained in the pleading asserting the claim. Similarly, when ruling on a Rule motion on the pleadings, the trial court shall only consider the allegations within the pleadings. If matters outside the pleadings are presented to and considered by the trial court in connection with a motion for judgment on the pleadings or a motion to dismiss for failure to state a claim, the trial court must treat the motion as one for summary judgment and give all parties a reasonable opportunity to respond accordingly present pertinent material. See M.R.C.P. .
A trial court need not make findings of fact when ruling on a motion for summary judgment because "a Rule 56 summary judgment hearing is not an action 'tried upon the facts without a jury' so as to trigger Ruleapplicability." See Harmon v. Regions Bank, 961 So. 2d 693, 700 (Miss. 2007). See also Uniform Rules of Circuit and County Court Practice.
Although the Court has held that an affidavit is not always required to obtain relief under Rule 56(f), a party must "present specific facts why he cannot oppose the motion" and must specifically demonstrate "how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing." Howarth v. M & H Ventures, LLC, 237 So. 3d 107, 113 (Miss. 2007)..