Every attorney is familiar with the stress of ensuring compliance with the various filing deadlines of their cases.[1] But sometimes, we watch in confusion as an opposing party’s filing date passes without so much as a peep from the other side. While I’m sure none of the readers of this article have ever missed a deadline, on occasion attorneys do miss deadlines, and the effects of missing one on a client’s case can range from innocuous to devastating. Often times, the parties can agree to an extension of time or to hold off on seeking relief based on the untimely response. But sometimes, the Court is unwilling to play along. So, what happens if an attorney or litigant files a response to a motion for summary judgment after the due date? Or if an attorney or litigant fails to respond altogether? And what can you expect for your own case when opposing counsel has missed the filing deadline on a summary judgment response? The answer, as it often does, depends on the jurisdiction you’re practicing in. For illustration, this article will look specifically at the effects of failing to respond in a timely manner to a motion for summary judgment.
Minnesota
Timing for a motion for summary judgment in Minnesota state court is controlled by Minn. Gen. R. Prac. 115.03.[2] That rule provides that the nonmovant has until 14 days before the hearing on the matter to file its memorandum of law and any supplementary affidavits and exhibits.[3] Minn. Gen. R. Prac. 115.02 generally outlines the procedure for obtaining a hearing date. While the Rule itself is unclear on whose duty it is to request a hearing date, case law heavily implies that the moving party bears that burden.[4] Additionally, Rule 115.06 gives courts latitude in determining the appropriate sanction for failure to properly file responsive documents in a dispositive motion.[5]
While a court may elect to waive or modify the time limits established in Minn. Gen. R. Prac. 115 to avoid irreparable harm, or in the interests of justice,[6] Minnesota courts have repeatedly upheld summary judgment proceedings even when a filing party failed to meet the timing requirements.[7]
A party’s failure to meet the response deadline is not a golden ticket to default judgment however, as a court will still consider the merits of the motion.[8] This is in line with Minnesota case law which “reflect[s] a preference that actions be determined on the merits and not on the basis of technical compliance.”[9] Indeed, our research reveals no Minnesota cases in which summary judgment was granted solely because a nonmovant failed to timely respond.
Practitioners should not mistake this latitude for a free pass to ignore the filing rules, however: courts have and often do refuse to allow supplemental evidence from a party when the party fails to file on time. For example, in Doss v. Minnesota Dept. of Labor and Industry, the plaintiff brought a discrimination action, which one of the defendants moved for summary judgment on.[10] One day before the responsive brief was due, plaintiff filed a motion for extension, which the plaintiff subsequently missed.[11] The plaintiff then proceeded to file additional exhibits and affidavits over the course of the next week or so, all of which were untimely, and which the court noted were “statutorily noncompliant.”[12] Citing Rule 115.06, the court refused to consider the tardy papers, but even so, considered the motion on its merits, and the file, sans tardy exhibits and affidavits, in its entirety.[13] Though the trial court’s grant of summary judgment was later overturned on appeal in an unreported, nonprecedential opinion, the Court of Appeals made no mention of the trial court’s decision to disregard the untimely filings.[14]
Federal
Unlike the Minnesota Rules of Civil Procedure, the Federal Rules of Civil Procedure are conspicuously silent on when a response to a motion for summary judgment is due.[15] In fact, the word “respond” appears only twice in the text of Fed. R. Civ. P. 56, and exclusively in the context of declaring that a nonmovant shall be given “notice and a reasonable time to respond.”[16] The next question, then: what constitutes a “reasonable” amount of time?
Since Fed. R. Civ. P. 56 does not establish a time limit for response, that task has fallen on the local courts. Specifically, the Local Rules of the U.S. District Court for the District of Minnesota specify that a party has twenty one (21) days after the filing of a dispositive motion to respond.[17] This same deadline is shared by the remainder of the 8th Circuit, with the exception of both the Eastern and Western Districts of Arkansas, where a party has fourteen (14) days to file an opposition to summary judgment.[18]
But what will a court do if a party fails to respond on time, or fails to respond at all? Once again, a failure to timely respond—unadvisable as it may be—does not mean an automatic grant of default judgment in favor of the movant. The Committee Notes on the 2010 amendment of Rule 56 provide, when referring to the new subdivision (e), that “summary judgment cannot be granted by default even if there is a complete failure to respond to the motion, much less when an attempted response fails to comply with Rule 56(c) requirements.”[19] Even if the court, faced with an uncontested motion for summary judgment, chooses to consider facts undisputed as it is authorized to do under Rule 56(e)(2), “[the party who failed to respond] remains free to contest the fact at further proceedings.”[20] In other words, the failure to respond, though it will undoubtedly frustrate the court and is ill-advised, may not result in an party being forced to forfeit all or even part of their argument. This perspective is shared by the 8th Circuit, which has posited that “[failure to respond to a motion for summary judgment] does not automatically compel resolution [of a matter] in favor of the [movant] . . . . a reviewing court must still determine whether the district court’s entry of summary judgment was appropriate.”[21]
However, a failure to respond may still be grounds for sanctions. For example, in Johnson v. Sheriff’s Office, the defendants filed motions for summary judgment against the pro se plaintiff.[22] The court specifically advised the plaintiff of his obligation to respond, directed him to the pertinent federal and local rules, and ordered him to show cause why the motions should not be granted, yet plaintiff still failed to respond.[23] Recognizing this to be a “particularly egregious” case of disobedience, the court dismissed the complaint with prejudice pursuant to Fed. R. Civ. P. 41(b).[24] Similarly, in United States v. Cisco, the pro se defendant, whom the court noted had a history of failing to meet deadlines, appear at hearings, and comply with court orders, failed to respond to the United States’ motion for summary judgment.[25] As a result, the court issued an order giving defendant fourteen (14) days to show cause for his failure to respond, and explicitly stating that it would grant default judgment for plaintiff if defendant again failed to respond.[26] These cases are illustrative because, if Federal courts are willing to hold even pro se parties firmly to the rules, even when such rulings have catastrophic effects on the parties’ cases, it is unlikely they will look with sympathy upon a represented party’s failure to meet a deadline. Thus, just because failure to respond to a summary judgment motion alone is not grounds for default judgment, does not mean that a court does not have other tools for disposal in its toolbox.
Attorneys conducting legal research on this topic will note that the vast majority of these decisions are nonprecedential. Notwithstanding this, it is a safe bet to expect courts to be unenthused should a deadline for response to a motion for summary judgment be missed. The neglectful attorney and their client may end up paying the price for that mistake. Even if your opposing counsel angers the judge in such a way, though, the diligent, responsible attorney should not pop the champagne bottle; your work is still the same and you will still have to win on the merits of your argument.
If you need representation in litigation, or face a pending motion for summary judgment, the experienced litigation attorneys at Eckland & Blando, LLP can help.
[1] Research and drafting assistance provided by Tommy Harshaw, Law Clerk at Eckland & Blando LLP.
[2] Minn. R. Civ. P. 56.02.
[3] Minn. Gen. R. Prac. 115.03(b).
[4] State v. Vang, 763 N.W.2d 354, 356-57 (Minn. Ct. App. 2009).
[5] Minn. Gen. R. Prac. 115.06.
[6] Minn. Gen. R. Prac. 115.07.
[7] See, e.g., Benassi v. Back & Neck Pain Clinic, Inc., 629 N.W.2d 475,483 (Minn. Ct. App. 2001), Benigni v. Cnty. Of St. Louis, 585 N.W.2d 51, 53 (Minn. 1998); Wikert v. N. Sand & Gravel, Inc., 402 N.W.2d 178, 182 (Minn. Ct. App. 1987); see also Minn. R. Gen. Prac. 115.06 advisory comm. cmt. (stating that “permissive language is included to make it clear the court retains the discretion to hear matters even if the rules have been ignored”).
[8] See Brandow Properties, LLC v. Melander, No. 27-CV-20-2033, 2021 WL 5748410, fn1 (Minn.Dist.Ct. July 16, 2021), reversed on other grounds, No. A21-1182, 2022 WL 1765966 (Minn. Ct. App. May 31, 2022); Tolchinsky v. Anderson, No. 27-CV-20-10003, 2021 WL 4813835, at *3 (Minn.Dist.Ct. July 15, 2021).
[9] Patterson v. Wu Family Corp., 608 N.W.2d 863, 865 (Minn. 2000).
[10] Doss v. Minnesota Dept. of Labor and Industry, No. 62-CV-19-5493, 2021 WL 8649237 (Minn. Dist. Ct. July 12, 2021).
[11] Id. at *4.
[12] Id.
[13] Id.
[14] Doss v. St. Paul Area Elec. JATC Registered Apprenticeship Program, No. A21-1150, 2022 WL 588168 (Minn. Ct. App. Feb. 28, 2022)
[15] Note that the original draft of the rule did contain response times (and reply times) in subsection (b). Those specifications were subsequently deleted after publication and comment. Legal Information Institute, Rule 56. Summary Judgment, Cornell Law School, https://www.law.cornell.edu/rules/frcp/rule_56.
[16] Fed. R. Civ. P. 56(f); (h)
[17] U.S. Dist. Ct. D. Minn. LR 7.1(c)(2).
[18] See, e.g., U.S. Dist. Ct. D. N.D. Civil Rule 7.1(A)(1); U.S. Dist. Ct. D. S.D. LR 7.1(B); Local Rules of the United States District Court for the Eastern and Western Districts of Arkansas 7.2(b).
[19] Fed. R. Civ. P. 56 advisory committee’s note (2010 amendment).
[20] Id.
[21] United States v. One Parcel of Real Prop., 27 F.3d 327, 329 n.1 (8th Cir. 1994). This case was operating under an older version of Rule 56, but is still cited with relative frequency in the 8th Circuit, as the underlying proposition that failure to respond does not warrant default judgment has not changed.
[22] No. CIV. 11-5100-JLV, 2013 WL 325254, at *1 (D.S.D. Jan. 28, 2013)
[23] Id.
[24] Id. at *1-*2.
[25] No. 21-CV-8-CJW-KEM, 2022 WL 1702511, at *1 (N.D. Iowa Mar. 29, 2022)
[26] Id.