Alaska summary judgment: 15 days to oppose, a statement of genuine issues, and a judgment somebody has to draft

Alaska keeps its summary-judgment timing in the general motion rule rather than in Rule 56. That means the numbers you need are in Rule 77, and it also means the opposition deadline is the same one that applies to any dispositive motion.

Rule 56 supplies two requirements Rule 77 does not: a memorandum with the motion, and a statement of genuine issues in opposition.

Who may move, and when

A claimant — Rule 56(a): a party seeking to recover on a claim, counterclaim or cross-claim, or to obtain a declaratory judgment, may move "at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party."

A defending party — Rule 56(b): may move "at any time."

Twenty days matches Oregon's ORCP 47 A and is shorter than Georgia's 30 or California's 60-day hold.

The schedule is in Rule 77

Rule 56(c) says the motion "shall be made pursuant to Rule 77." So:

Fifteen days is a Rule 77(c)(2)(B) figure specific to dispositive motions; ordinary motions get 10 days.

The "whichever is later" clause matters for a plaintiff who moves early. A summary judgment motion served with the complaint does not shorten the defendant's time — the opposition is not due before the answer is.

Oral argument on a summary judgment motion is not discretionary. Rule 77(e)(2) makes argument discretionary "except on motions to dismiss; motions for summary judgment; motions for judgment on the pleadings; other dispositive motions; motions for delivery and motions for attachment." On those, a timely request gets a hearing.

But the request has its own short deadline — five days — and it runs from the responsive pleading or its deadline, whichever is earlier. Ask for argument when you file, not when you think of it.

What has to be filed

Rule 77(b) requires with every motion: legible copies of all photographs, affidavits and other documentary evidence the movant intends to rely on; "a brief, complete written statement of the reasons in support," including a memorandum of points and authorities; and a proposed order for the court's signature in the event the motion is granted, except from a self-represented party.

Rule 56(c) adds a second document:

There must also be served and filed with each motion a memorandum showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

And it describes the supporting affidavits as "setting forth concise statements of material facts made upon personal knowledge."

In opposition, Rule 56(c) permits opposing affidavits, "a concise 'statement of genuine issues' setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated," and any other memorandum in opposition.

Alaska's statement of genuine issues is the counterpart to the separate statement other systems require. It is the document that tells the court which facts are actually in dispute, and an opposition without one leaves the movant's version unanswered in the form the rule contemplates.

Rule 77(c)(1) requires the opposing party to file legible copies of its documentary evidence, "a brief, complete written statement of the reasons in opposition," including an adequate answering brief of points and authorities, and a proposed order in the event the motion is denied — or, alternatively, "a written statement that the party does not oppose the motion."

The standard

Rule 56(c):

Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

Note "any party." Rule 56(c) also says expressly that "summary judgment, when appropriate, may be rendered against the moving party" — the court can grant judgment to the non-movant on the same record, without a cross-motion.

And a summary judgment "interlocutory in character" may be rendered on liability alone although the amount of damages remains in issue.

No resting on the pleadings

Rule 56(e): supporting and opposing affidavits are made on personal knowledge, set forth facts admissible in evidence, and show affirmatively that the affiant is competent to testify. Sworn or certified copies of all papers referred to in an affidavit must be attached or served with it.

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 the adverse party's pleading, but the adverse party's response … must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

"If appropriate" does the work in that last sentence. A non-response does not concede the motion; the court still has to find the record supports judgment.

If you need more time to gather evidence

Rule 56(f): where it appears from the opposing party's affidavits that the party cannot, for reasons stated, present by affidavit facts essential to justify the opposition, the court may refuse the application for judgment, order a continuance to permit affidavits to be obtained or depositions taken or discovery to be had, or make such other order as is just.

The requirement is an affidavit that states the reasons. A request in a brief, without the affidavit, does not engage the rule.

Bad faith affidavits

Rule 56(g) is unusually pointed:

Should it appear to the satisfaction of the court at any time that any of the affidavits presented … are presented in bad faith or solely for the purpose of delay, the court shall forthwith 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 attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

"Shall forthwith order" — the expense award is mandatory on that finding, and contempt is available on top.

Partial adjudication

Rule 56(d): where judgment is not rendered on the whole case and a trial is necessary, the court "at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted."

It then makes an order specifying the uncontroverted facts, including the extent to which damages or other relief are not in controversy. Upon trial, the facts so specified shall be deemed established.

So a motion that does not win outright can still narrow the trial — and the narrowing is binding.

Winning does not produce a judgment

The same provision that appears in Rules 12(b) and 12(c) appears here:

A decision granting a motion for summary judgment is not a final judgment under Civil Rule 58. When the decision adjudicates all unresolved claims as to all parties, the judge shall direct the appropriate party to file a proposed final judgment. The proposed judgment must be filed within 20 days of service of the decision, on a separate document distinct from any opinion, memorandum or order.

Three practical consequences.

The case is not over when the order issues. Someone must draft the judgment, on its own document, within 20 days.

Post-judgment and appellate clocks run from that judgment, not from the decision.

And so does the fee deadline. Rule 82(c) requires a motion for attorney's fees within 10 days after the date shown in the clerk's certificate of distribution on the judgment as defined by Rule 58.1, and treats a late motion as a waiver. Since Alaska awards fees to the prevailing party as a matter of course under Rule 82(a), winning summary judgment and then missing that 10 days is an expensive sequence.

The guide on responding to an Alaska complaint covers Rule 82 in full.

Expedited consideration

Rule 77(g) allows a party to move for expedited consideration by filing a second motion, captioned "Motion for Expedited Consideration," with its own proposed order. It must include an affidavit or other evidence showing the facts justifying expedition and the date by which a decision is needed; where the parties are represented, a certification of counsel describing a good faith effort to resolve the issues with opposing counsel, or explaining why none was possible; and proof of service.

The court may not grant either the expedition motion or the principal motion without giving the opposing party a reasonable opportunity to respond — in person, by telephone or in writing — absent compelling reasons and a showing of reasonable notice efforts.

How Alaska compares

A short checklist

Moving

1. Check the 20 days if you are the claimant. A defending party may move at any time.
2. File the Rule 56(c) memorandum — no genuine issue, entitled to judgment as a matter of law — in addition to the Rule 77(b) statement of reasons.
3. Attach the evidence and a proposed order. Rule 77(b) requires both.
4. Request oral argument within five days of the responsive pleading or its deadline, whichever is earlier.
5. Draft the judgment if you win. Twenty days, separate document.
6. Move for fees within 10 days of the clerk's certificate of distribution.

Opposing

1. Calendar 15 days — or your answer date, if the plaintiff moved early.
2. File a statement of genuine issues. Concise, listing every material fact you say is in dispute.
3. Do not rest on your pleading. Specific facts, by affidavit or as the rule otherwise permits.
4. If you need discovery, file a Rule 56(f) affidavit stating why you cannot present the facts now.
5. Remember judgment can go against the movant. If the record supports it, ask for it.

Where these rules live

• Alaska R. Civ. P. 12 — Defenses and objections
• Alaska R. Civ. P. 26 — General provisions governing discovery; duty of disclosure
• Alaska R. Civ. P. 56 — Summary judgment
• Alaska R. Civ. P. 58 — Entry of judgment
• Alaska R. Civ. P. 60 — Relief from judgment or order
• Alaska R. Civ. P. 77 — Motions
• Alaska R. Civ. P. 82 — Attorney's fees

This page explains what the rules say. It isn't legal advice, and individual courts may set their own motion calendars on top of Rule 77.