At this point, several of our judges here require parties seeking summary judgment to file a separate concise statement of materials facts. Parties often seem to stumble over this requirement and, as we've discussed before, doing it wrong can be a great way to get your summary judgment motion denied.
In The Estate of Edward Bovee v. Corporal Sam Wilks, C.A. No. 23-192-CFC (D. Del.), the parties' agreed-upon scheduling order included Chief Judge Connolly's normal language requiring concise statements:
Any motion for summary judgment shall be accompanied by a separate concise statement detailing each material fact as to which the moving party contends that there are no genuine issues to be tried that are essential for the Court's determination of the summary judgment motion (not the entire case).
D.I. 12, 13 at ¶ 11(c).
Despite this language, the defendants filed a motion for summary judgment and a brief, but failed to include a concise statement. Just 10 days later, and before the deadline to respond, the Court denied the motion for failure to include the concise statement:
Pending before me is Defendants' Motion for Summary Judgment (D.I. 41). Although the Scheduling Order expressly requires the filing of a concise statement of facts with any summary judgment motion, D.I. 13 4 11.c, Defendants did not file a concise statement of facts. The motion also appears to violate paragraph 11.b of the Scheduling Order. See D.I. 13 4 11.b ("A party shall not combine into a single motion multiple motions that rely in whole or in part on different facts.").
NOW THEREFORE, at Wilmington on this Ninth day of July in 2024, Defendants' Motion for Summary Judgment (D.I. 41) is DENIED.
D.I. 50. In response, the defendants requested leave to re-file.
In a move that gives hope for all of those who may in the future inadvertently fail to comply with the Court's concise statement of facts requirement, the Court granted the motion to refile.
Great, right? But—somehow—the defendant's second round of summary judgment briefing once again omitted the required concise statement of facts.
The plaintiff wisely pointed this out in its response, and defendants then moved for leave to file two separate concise statements of fact, which they attached to their motion.
The Court did not go for it. It denied their motion, noting their repeated failure to comply:
In its answer to Defendants' motions for summary judgment, Plaintiff requests that I deny Defendants' motions or alternatively strike their opening briefs for failure to comply with the Scheduling Order. . . . In response, Defendants jointly filed a reply brief in which they argue that their motions for summary judgment complied with the Scheduling Order because "[e]ach of the [o]pening [b]riefs filed by Defendants have separate sections titled 'Statement of Facts' which provide[] a succinct and concise set of statements of the events that occurred on December 1, 2021." . . . Later that same day, Defendants filed the pending Motion for Leave (D.1. 59), seeking leave to file separate concise statements of facts because "after consulting with other counsel, [they] determined the format the Court is seeking is different than what has been submitted." . . . Defendants attached to their Motion for Leave two separate concise statements of facts for each of their motions for summary judgment. . . .
I will deny Defendants' motions for summary judgment and Motion for Leave based on their repeated and blatant disregard of the express terms of the Scheduling Order. I am also persuaded that Plaintiff will suffer prejudice from another delay in the summary judgment briefing schedule. The Pretrial Order in this case is due in less than two months (on September 19, 2024) and a jury trial is less than three months away (beginning on October 21, 2024). . . .
D.I. 61 at 2-3.
The Court's order makes clear that having a fact section in your brief is not enough. The separate concise statement of material facts is required.
The Court explicitly rejected the idea that it was depriving the defendants of resolution on the merits—because that resolution will take place at trial:
Defendants argue in support of their motions that "[t]he Third Circuit has 'repeatedly stated our preference that cases be disposed of on the merits whenever practicable,' Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984)." D.I. 59 1 8. Make no mistake, consistent with Hritz, this case will be decided on the merits. But because of the repeated failures of Defendants' counsel to comply with unambiguous court orders, the merits will be adjudicated solely at trial.
D.I. 61 at 2-3.
If you've got a summary judgment brief coming up with a concise statement of facts requirement, be sure to follow the scheduling order exactly! Read it twice! It also doesn't hurt to check out our posts on this issue as well—several of which involve other attempts (and, sometimes, failures) to comply with this requirement.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
