Hawaii summary judgment: 50 days before trial, 18 before the hearing, 8 to oppose, 3 to reply

Hawaii puts four numbers in Rule 56, and all four are outer limits rather than targets. Two of them — the 50 days before trial and the 3 days for a reply — catch people out for opposite reasons: one is far earlier than expected, and the other is far shorter.

The 50-day rule applies to everybody

Most systems that set a trial-relative deadline for summary judgment apply it to the motion generally. Hawaii writes it into both subdivisions, so there is no argument about who it covers.

Rule 56(a) — for a claimant: a party seeking to recover on a claim, counterclaim or cross-claim, or to obtain a declaratory judgment, may move with or without supporting affidavits, and

may seek relief 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, provided, however, that a motion seeking relief under this rule shall be served and filed no less than 50 days before the date of the trial unless granted permission by the court and for good cause shown.

Rule 56(b) — for a defending party: may move with or without supporting affidavits, "provided, however, that a motion seeking relief under this rule shall be filed and served no less than 50 days before the date of the trial unless granted permission by the court and for good cause shown."

A defending party may move at any time in the sense that there is no waiting period — but the 50-day backstop applies to it just as much as to a claimant.

Permission is available, on good cause shown. But it is permission you have to ask for and be granted, not something to assume.

Compare Oregon, whose ORCP 47 C requires the motion 60 days before trial. Hawaii's 50 is the same idea, ten days closer in.

The hearing schedule

Rule 56(c):

The motion shall be filed and served not less than 18 days before the date set for the hearing. The adverse party may file and serve opposing memorandum and/or affidavits not less than 8 days before the date set for the hearing. The moving party may file and serve a reply or affidavit not less than 3 days before the date set for the hearing.

Three points about counting these.

Everything runs backward from the hearing, not forward from a filing. That is the California pattern rather than the Oregon one.

The 18 days match Rule 6(d), which requires every non-ex-parte motion to be served not less than 18 days before its hearing. Rule 56(c) is not an exception; it is the general rule restated.

And the short periods are counted without weekends. Rule 6(a) provides that "when the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded." So the 3-day reply period is three working days — usually about five calendar days. The 8-day opposition period is eight calendar days, because eight is not less than seven.

That distinction between 8 and 3 is easy to get backwards. Check it before you calendar.

The standard

Rule 56(c):

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

A summary judgment "interlocutory in character" may be rendered on liability alone although there is a genuine issue as to the amount of damages.

Hawaii does not define "genuine issue" in the rule — unlike Oregon, whose ORCP 47 C states an objectively reasonable juror test in the text.

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 or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

That attachment requirement is enforced and easy to overlook. An affidavit that describes a document without attaching a sworn or certified copy does not comply.

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, by affidavits or as otherwise provided in this rule, 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.

The court may permit affidavits "to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits."

Note "if appropriate." Failing to oppose does not hand the movant the judgment; the court still has to be satisfied the record supports it.

If you need discovery first

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

The rule requires an affidavit setting out the reasons. Argument in a memorandum does not substitute for it.

This matters more in Hawaii than in a system without the 50-day rule. A motion filed at the outer limit lands while discovery may still be running, and Rule 56(f) is the response — but only if you file the affidavit.

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 the amount of damages or other relief is not in controversy," and directing such further proceedings as are just. Upon trial, the facts so specified shall be deemed established, and the trial is conducted accordingly.

So a motion that does not dispose of the case can still take facts off the table permanently. That is worth building into the motion — ask for the Rule 56(d) findings in the alternative.

Rule 56(h): what a partial order must say

Hawaii adds a subdivision with no federal counterpart:

Whenever the court on a motion for summary judgment disposes of one or more but fewer than all claims, involving one or more parties, the order entered must specifically set forth the claim or claims disposed of, and with respect to each such claim, the party or parties in whose favor the disposition is made and the party or parties against whom the disposition is made.

Three things must appear in the order: which claims, in whose favour, and against whom — claim by claim.

The purpose is clarity about what survives. In a multi-party case where a motion knocks out three of seven claims against two of four defendants, an order saying "the motion is granted in part" tells nobody what is left standing.

If you are the prevailing party, this is your drafting job. Prepare the order to Rule 56(h)'s terms rather than leaving it to be worked out later.

Bad faith affidavits

Rule 56(g):

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.

The expense award is mandatory on that finding — "shall forthwith order" — with contempt available on top. Alaska's Rule 56(g) and Oregon's ORCP 47 G are in the same terms.

How Hawaii compares

A short checklist

Moving

1. Find the trial date first. Fifty days before it is the outer limit, for either side, and going later needs the court's permission on good cause.
2. Work back 18 days from the hearing for filing and service.
3. Attach sworn or certified copies of everything your affidavits refer to. Rule 56(e) requires it.
4. Ask for Rule 56(d) findings in the alternative — facts established without substantial controversy are binding at trial.
5. Draft the order to Rule 56(h) if you win in part: each claim disposed of, in whose favour, against whom.

Opposing

1. Calendar 8 days before the hearing. That is calendar days.
2. Calendar the reply at 3 days — those are counted excluding weekends and holidays, so the movant has longer than it looks.
3. Do not rest on your pleading. Specific facts, by affidavit, deposition or interrogatory answers.
4. If the motion arrived before you could develop the record, file a Rule 56(f) affidavit stating the reasons you cannot present the facts. A request in the memorandum will not do.

Where these rules live

• Haw. R. Civ. P. 6 — Times
• Haw. R. Civ. P. 7 — Pleadings allowed; form of motions
• Haw. R. Civ. P. 12 — Defenses and objections
• Haw. R. Civ. P. 26 — General provisions governing discovery
• Haw. R. Civ. P. 33 — Interrogatories to parties
• Haw. R. Civ. P. 36 — Requests for admission
• Haw. R. Civ. P. 54 — Judgments; costs; attorneys' fees
• Haw. R. Civ. P. 56 — Summary judgment
• Haw. R. Civ. P. 58 — Entry of judgment

Circuit court rules add their own motion-practice requirements. This page explains what the rules say. It isn't legal advice.