Vt. R. Civ. P. 56

As amended through April 1, 2024

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 the motion.

(b) Time to File and Oppose a Motion. A party may file a motion for summary judgment at any time until 30 days after the close of all discovery, unless a different time is set by stipulation or court order. An adverse party may file its opposition to the motion within 30 days after the service of the motion. The moving party may file a reply memorandum within 14 days after service of the opposition. The court may also allow a surreply memorandum.

(c) Procedures Supporting Factual Positions.

(1) A moving party asserting that a fact cannot genuinely be disputed must support the assertion by filing a separate and concise statement of undisputed material facts consisting of numbered paragraphs with specific citations to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. Upon request, the party must provide each adverse party with a copy of the statement in an editable format that allows entry of responses to be incorporated into a single document.

(2) A nonmoving party responding to a statement of undisputed material facts and asserting that a fact is genuinely disputed, that the materials cited do not establish the absence of a genuine dispute, or that the moving party cannot produce admissible evidence to support the fact, must file a paragraph-by-paragraph response, with specific citations to particular parts of materials in the record that the responding party asserts demonstrate a dispute, including depositions, documents, electronically stored information, affidavits, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other admissible materials. The responding party must reproduce each numbered paragraph of the moving party's statement before including the response thereto. To the extent that the responding party asserts that there are additional material facts that should be considered, the party may file a separate and concise statement of additional material facts in numbered paragraphs, with specific citations to particular parts of admissible materials in the record. Upon request, the party must provide each adverse party with a copy of its response and of any separate statement of additional facts in editable format that allows entry of replies to be incorporated into single documents.

(3) A moving party who asserts that the nonmoving party's allegedly disputed facts are not material, are not genuinely disputed, or are not supported by admissible evidence may file a reply. Each numbered paragraph to which there is a reply, must be reproduced before the reply thereto. Similarly, a moving party who asserts that the nonmoving party's additional facts are not material or are not supported by admissible evidence, may file a reply setting out the facts replied to. Each numbered paragraph to which there is a reply must be reproduced before the reply thereto. The court may also allow a surreply memorandum in the same format if the memorandum would assist in clarifying the issues, particularly where the party seeking to file the memorandum is addressing new factual or legal arguments by the opposing party.

(4)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.

(5)Materials Not Cited. The court need consider only the materials cited in the required statements of fact, but it may consider other materials in the record.

(6)Affidavits. An affidavit 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 is competent to testify on the matters stated.

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit 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 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 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.

V.R.C.P. 56

Amended Oct. 21, 1983, eff. 1/1/1984; 11/4/1994, eff. 3/1/1995; March. 25, 2003, eff. 7/1/2003; 11/22/2011, eff. 1/23/2012; amended Jun. 7, 2021, eff. 8/9/2021; amended December 13, 2021, eff. 2/14/2022; amended December 12, 2022, eff. 1/1/2023.

Reporter's Notes-2023 Amendment

Rule 56(b) is amended to allow a party to file for summary judgment "at any time until" 30 days after the close of all discovery. This restores language consistent with the federal rule and corrects an error in the 2022 amendment that required the party to file "within" the 30-day period. The amendment clarifies that a party may file a motion for summary judgment before as well as after the close of discovery.

Reporter's Notes-2022 Amendment

Rule 56 is amended to clarify and spell out in detail the content of motions for summary judgment, oppositions to summary judgment motions, and motions in reply to opposition. The purpose is to separate out statements of often immaterial or nonresponsive additional facts and, to discourage the not-uncommon practice of obfuscating the terms of a reply by adding a host of such additional facts. No substantive change is intended.

Rule 56(b) is amended to provide in one place the filing times for the three principal procedural steps for which amended Rule 56 provides: The summary judgment motion, the opposition to the motion, and the moving party's reply to the opposition. That provision, formerly Rule 56(c)(5), has been incorporated here for clarity. In addition, for completeness, a provision permitting a surreply in the court's discretion has been adopted from V.R.C.P. 7(b)(4) as amended in June 2021. That rule applies generally to all motions including those for summary judgment. See Reporter's Notes to June 2021 amendment of Rule 7(b).

Rules 56(c)(2) and (c)(3) have been added to make explicit the requirements that responses to the movant's statement of undisputed facts are to be provided in numbered paragraphs corresponding to those of the movant's statement, and that statements of additional facts-disputed or undisputed-are to be submitted in a separate statement, with numbered paragraphs. These provisions respond to prior concerns that nonmoving parties were causing confusion by incorporating additional material in their oppositions to the movant's statement. The detail of the provisions requires paragraph-by-paragraph responses to the movant's statement that must be preceded by paragraph-by-paragraph text of that statement. To facilitate preparation of responses, paragraphs (1) and (2), and paragraph (3) by implication, require a party, on request, to provide an opposing party with a copy of its statement in editable format to allow statements and responses to be incorporated in a single document.

Reporter's Notes-2021 Amendment

V.R.C.P. 56(c)(5) is added to make clear that a reply to a memorandum in opposition to a motion for summary judgment, as provided in the simultaneous amendment to V.R.C.P. 7(b)(4), is available. See Reporter's Notes to that amendment.