RULE 121. SUMMARY JUDGMENT
- (a) General: Either party may move, with or without
supporting affidavits, for a summary adjudication in the moving
party's favor upon all or any part of the legal issues in
controversy. Such motion may be made at any time commencing 30 days
after the pleadings are closed but within such time as not to delay
the trial.
- (b) Motion and Proceedings Thereon: The motion shall be
filed and served in accordance with the requirements otherwise
applicable. See Rules 50 and 54. An opposing written response, with or
without supporting affidavits, shall be filed within such period as
the Court may direct. A decision shall thereafter be rendered if
the pleadings, answers to interrogatories, depositions, admissions,
and any other acceptable materials, together with the affidavits,
if any, show that there is no genuine issue as to any material fact
and that a decision may be rendered as a matter of law. A partial
summary adjudication may be made which does not dispose of all the
issues in the case.
- (c) Case Not Fully Adjudicated on Motion: If, on motion
under this Rule, decision is not rendered upon the whole case or
for all the relief asked and a trial is necessary, the Court may
ascertain, by examining the pleadings and the evidence before it
and by interrogating counsel, what material facts exist without
substantial controversy and what material facts are actually and in
good faith controverted. It may thereupon make an order specifying
the facts that appear to be without substantial controversy,
including the extent to which the relief sought is not in
controversy, and directing such further proceedings in the case as
are just. Upon the trial of the case, the facts so specified shall
be deemed established, and the trial shall be concluded
accordingly.
- (d) Form of Affidavits; Further Testimony; Defense Required:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or filed therewith. The Court
may permit affidavits to be supplemented or opposed by answers to
interrogatories, depositions, further affidavits, or other
acceptable materials, to the extent that other applicable
conditions in these Rules are satisfied for utilizing such procedures. When a motion for summary judgment is made and
supported as provided in this Rule, an adverse party may not rest
upon the mere allegations or denials of such party's pleading, but
such party's response, by affidavits or as otherwise provided in
this Rule, must set forth specific facts showing that there is a
genuine issue for trial. If the adverse party does not so respond,
then a decision, if appropriate, may be entered against such
party.
- (e) When Affidavits Are Unavailable: If it appears from the
affidavits of a party opposing the motion that such party cannot
for reasons stated present by affidavit facts essential to justify
such party's opposition, then the Court may deny the motion or may
order a continuance to permit affidavits to be obtained or other
steps to be taken or may make such other order as is just. If it
appears from the affidavits of a party opposing the motion that
such party's only legally available method of contravening the
facts set forth in the supporting affidavits of the moving party is
through cross-examination of such affiants or the testimony of
third parties from whom affidavits cannot be secured, then such a
showing may be deemed sufficient to establish that the facts set
forth in such supporting affidavits are genuinely disputed.
- (f) Affidavits Made in Bad Faith: If it appears to the
satisfaction of the Court at any time that any of the affidavits
presented pursuant to this Rule are presented in bad faith or for
the purpose of delay, then the Court may order the party employing
them to pay to the other party the amount of the reasonable
expenses which the filing of the affidavits caused the other party
to incur, including reasonable counsel's fees, and any offending
party or counsel may be adjudged guilty of contempt or otherwise
disciplined by the Court.
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