How to Oppose a Motion for Summary Judgment: The Non-Movant's Playbook

To oppose a motion for summary judgment, you file three things: a memorandum, a paragraph-by-paragraph response to the movant's statement of undisputed facts, and record evidence supporting every fact you call disputed. Rule 56 sets no national response deadline. Your district's local rule or scheduling order does, and the separate statement is what usually decides the motion.

Most guides restate the standard and stop. What sinks oppositions is procedural: the wrong deadline, a separate statement that ignores the movant's numbering, cites pointing at an exhibit instead of a line.

This article is for general information and is not legal advice. For guidance on a specific case, consult a licensed attorney in your jurisdiction.

Your deadline is not in Rule 56

Read Rule 56 start to finish. It contains no deadline for the non-movant to respond. Its only timing provision, Rule 56(b), governs the movant: a party may move "at any time until 30 days after the close of all discovery," unless a local rule or order says otherwise.

The "21 days to respond" figure circulating in blog posts and AI answers is real but dead. The 2009 amendments briefly gave Rule 56(c) a national schedule of 21 days to respond and 14 to reply; the 2010 rewrite removed it. The Committee Note to the current subdivision (b) is one sentence: "The timing provisions in former subdivisions (a) and (c) are superseded."

Your deadline comes instead from the standing order, the scheduling order, and the local rule. Check all three; they diverge, and some count backward.

The California rule is the trap worth internalizing. If the movant notices a hearing eight weeks out, your opposition is due five weeks out, not 21 days after service.

The separate statement decides the motion

Most districts make the movant file numbered undisputed facts with pinpoint cites, then make you answer them fact by fact. That responsive document, not the brief, is where the court actually works.

The Central District of California states the mechanism plainly. Under L.R. 56-2, your "Statement of Genuine Disputes" restates every movant fact "in the same order, using the same numbers," answering each with "pinpoint citations (including page and line numbers, if available) to evidence in the record." L.R. 56-4 supplies the consequence: the court "may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy," and "is not obligated to look any further in the record." The District of Utah requires the same substance under DUCivR 56-1(c); Illinois's Northern District runs the best-known version under LR 56.1.

Behind all of them sits Rule 56(e): when a party "fails to properly address another party's assertion of fact," the court may "consider the fact undisputed for purposes of the motion." Three rules follow.

1. Answer every numbered fact, in the movant's order and numbering. Reorganizing the facts into your own narrative is the most common way to get them deemed admitted.
2. Say "disputed" or "immaterial," then prove it. A dispute asserted without a record cite is not a dispute.
3. Put your affirmative facts in a separate statement of additional material facts. Burying them in responses is how good evidence goes unread.

What a genuine dispute of material fact requires

Two words do the work, and the Supreme Court defined both in 1986.

Material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986): "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." A fight that changes no element is wasted space.

Genuine. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. That inquiry mirrors the directed-verdict standard, and it has a ceiling worth quoting in every opposition: "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." 477 U.S. at 255.

Two companion cases set the outer bounds. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) lets the movant carry its initial burden by "pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) sets your floor: you "must do more than simply show that there is some metaphysical doubt as to the material facts." Argument is not evidence, and neither is a pleading or an unsworn attorney statement.

Before building on a favorable case, confirm it is still good law; for the standard in depth, see our companion piece on the summary judgment standard.

Rule 56(c)(1): pin cites, not record dumps

Rule 56(c)(1) requires support by "citing to particular parts of materials in the record." Rule 56(c)(3) punishes sloppiness: "The court need consider only the cited materials, but it may consider other materials in the record." May, not must. Evidence you filed but never cited to a page and line may as well not exist.

The underused arm is Rule 56(c)(1)(B), which lets you respond by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." That is the Celotex move run in reverse, and it is often the whole opposition when the movant has overclaimed a deposition excerpt.

Assembling those pin cites across a full case file consumes more of the week than the drafting does. It is why we built CaseRead to search a firm's own matter file and the public law in one query, with every answer traced to a source it actually retrieved.

Evidence must be presentable in admissible form

The 2010 amendments changed the question. It is no longer whether evidence is admissible as filed. Under Rule 56(c)(2) a party may object that cited material "cannot be presented in a form that would be admissible in evidence," and the Committee Note places the burden squarely: "The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated." Your unauthenticated exhibit survives if you can name the witness who will authenticate it. So does theirs.

Rule 56(c)(4) governs the papers: a declaration "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify." Two practice points follow.

• Object in the brief, not by separate motion. Many courts now say so outright. Utah's rule: "Motions to strike evidence as inadmissible are no longer appropriate and should not be filed. The proper procedure is to make an objection."
• Do not paper over bad testimony. A declaration contradicting your client's deposition without a satisfactory explanation invites the sham affidavit doctrine, which the ABA has surveyed for practitioners. That is a job for deposition preparation. Under Rule 56(h), an affidavit filed in bad faith can also cost your client the other side's fees.

Rule 56(d): the affidavit that buys discovery time

When the motion lands before you have the discovery you need, Rule 56(d) is the answer, and it is badly underused. If a non-movant "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition," the court may defer or deny the motion, allow time to take discovery, or issue any other appropriate order. "Specified reasons" is the operative phrase; courts routinely reject conclusory requests. A declaration that works establishes four things:

1. What facts you expect discovery to produce, identified specifically rather than as a category.
2. Why those facts would create a genuine dispute on an element the motion attacks.
3. What you have already done to obtain them, including any motion to compel filed.
4. Why those efforts failed — a stay, a pending dispute, a witness who has not yet sat.

One trap: some districts forbid burying the request in your brief. Utah requires that "[n]o motion, including... motions pursuant to Fed. R. Civ. P. 56(d), may be included in a response or reply memorandum."

Partial motions and cross-motions

Rule 56(a) lets a party move on "each claim or defense — or the part of each claim or defense," and nothing requires you to defend everything. Two provisions to watch: under Rule 56(g), a court that denies part of the motion may still treat undisputed facts "as established in the case," so surviving does not reset the record; and under Rule 56(f), after notice, it may "grant summary judgment for a nonmovant."

The week the motion lands

1. Day one: calendar it. Standing order, scheduling order, local rule. Does the clock run from service or backward from a hearing? Note the word limit.
2. Day one: read the statement of facts before the brief. That is the document you have to beat.
3. Days two to three: audit every movant cite. Overclaimed deposition excerpts are the most common defect, and each is a Rule 56(c)(1)(B) response.
4. Day three: decide on Rule 56(d) — now, not the night before filing.
5. Days three to five: build the two-column response first, brief second. Every "disputed" needs a page and line; what you cannot cite becomes "immaterial" or a concession.
6. Day six: evidentiary objections, placed where the local rule wants them.
7. Day seven: cite-check the brief.

If the motion arrived before the pleadings closed, the posture overlaps with responding to a motion to dismiss.

Frequently asked questions

How long do you have to respond to a motion for summary judgment?

Rule 56 sets no response deadline. It caps only when a motion may be filed: any time until 30 days after the close of all discovery. Your deadline comes from the local rule, the scheduling order, or the judge's standing order, and those commonly run 14 to 28 days after service. Some are counted backward from the hearing date.

What happens if you don't respond to a motion for summary judgment?

You do not lose automatically, but you lose most of the fight. Under Rule 56(e) a court may consider an unaddressed fact undisputed for purposes of the motion, then grant judgment if the movant's materials show entitlement to it. There is no default summary judgment.

What evidence can you use to oppose summary judgment?

Rule 56(c)(1)(A) lists depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, and other materials. The evidence need not be in admissible form yet. Under Rule 56(c)(2) the test is whether it can be presented in a form that would be admissible at trial.

What is a Rule 56(d) affidavit?

It is a sworn statement that you cannot yet present facts essential to your opposition because discovery is incomplete. Rule 56(d) lets the court defer or deny the motion, allow time to take discovery, or issue any other appropriate order. Courts want specifics, not a general plea for time.

Do you have to file an affidavit to oppose summary judgment?

No. You can defeat a motion entirely with the movant's own record: deposition excerpts, produced documents, discovery responses. Under Celotex the movant carries the initial burden, and a motion that fails to carry it can be beaten without a single new declaration.

Before you file

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