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Summary Judgment in Missouri: Who, What, When, & How

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My target audience with this post is law school students and young attorneys tackling a summary judgment for the first time. Experience has shown that seasoned attorneys often forget exactly what it was like to not know how to do something. This is my primer on summary judgment for novices like me. For a more in-depth review of the subject, see Judge H.J. Bush’s article titled “How to Write a Motion for Summary Judgment.”

What is Summary Judgment?
“Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute a right to judgment as a matter of law.” ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc. 1993).
In short, summary judgment is your chance to win your case before going to trial. Like a trial verdict, the judgment is final. However unlike a trial, summary judgment does not involve witnesses, experts, or a jury. Instead, the attorneys present their cases to the judge. The judge decides whether there is dispute of facts that should be decided at a future trial or if she can rule as a matter of law in one party’s favor today.
The standard for summary judgment is when there is “no genuine dispute as to the material facts.” A material fact is a fact that is required to establish your entitlement to recovery or right to an affirmative defense. In Missouri this can easily be established by referring to the Missouri Approved Jury Instructions (MAI).

“The record is viewed in the light most favorable to the non-movant.” ITT Commercial at 382. Thus summary judgment is not a place for credibility determinations as the non-moving party will always be given the benefit of the doubt. Id. For this reason, the majority of motions for summary judgment will fail. However, summary judgment is a very powerful tool for ending frivolous law suits.

Who can seek summary judgment?

Any party in a lawsuit. According to Rule 74.04 the movant is called the “claimant” and the responding party is the “defending party.”

When can you file a motion for summary judgment?
According to 74.04(a), the Claimant must wait 30 days after the commencement of an action before filing a motion for summary judgment. Any time after that, the claimant can file. According to 74.04(b), after a summary judgment has been sought against the “defending party,” it can respond with its own motion for summary judgment at any time.

Clearly the benefit of filing a motion for summary judgment early on in a case is to save money and to get the case resolved as quickly as possible.

Other timing considerations

The response in opposition to summary judgment is due within 30 days after service of a summary judgment motion. 74.04(c)(2). Reply briefs are due within 15 days after service of the response. 74.04(c)(3). Sur-reply in opposition is due within 15 days after service of the reply. 74.04(c)(4).

How do you file a motion for Summary Judgment?
Rule 74.04(c) provides the answer. A motion for summary judgment includes four parts. First, a statement of uncontroverted material facts. Second, a copy of all competent (admissible as if you were in court) evidence. Third, suggestions in support of motion for summary judgment. This is a separate legal memorandum explaining why summary judgment should be granted. And fourth, a certificate of service.
Typically, motions for summary judgment also include oral arguments. As mentioned above, this hearing consists of the attorney for each party outlining his argument, explaining the facts in light of the law on the subject, and answering the judge’s questions.

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