Massachusetts summary judgment: 20 days to move, 10 days' notice, and no deadline at the other end

Massachusetts summary judgment is defined by what it does not contain. There is no fixed number of days before trial by which the motion must be filed, no statewide page limit, and no required statement of undisputed facts. What there is instead is a short, precise set of timing rules and a demanding response standard.

Who may move, and when

Mass. R. Civ. P. 56(a) — the claimant:

For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, 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, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

Rule 56(b) — the defending party:

For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

The asymmetry is deliberate and worth noticing.

A defendant may move immediately — the day after being served, if it wishes.

A claimant must wait 20 days from commencement, unless the other side moves first, in which case the wait disappears.

And neither needs affidavits. "With or without supporting affidavits" appears in both subsections. A motion resting on the pleadings, answers to interrogatories and admissions is procedurally proper.

The ten days

Rule 56(c):

Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, 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.

Two timing rules, and they are not symmetrical.

The movant has a hard floor: 10 days before the hearing. Ten days is fewer than the periods most states allow, and it is counted from the hearing rather than from filing.

The opponent has no fixed deadline — only "prior to the day of hearing." That is unusually loose, and in practice individual sessions and standing orders often tighten it. Do not rely on the rule's generosity without checking what the session expects.

Rule 56(c) also permits partial judgment: "A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."

And it contains a provision that surprises people: "Summary judgment, when appropriate, may be rendered against the moving party." Moving carries a risk that the court will decide the point the other way.

The response standard

Rule 56(e) is the part that decides most motions:

Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. 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 his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Four requirements for an affidavit — personal knowledge, admissible facts, demonstrated competence, and attached sworn or certified copies of anything referred to. That last one is a frequent and avoidable defect: an affidavit that quotes a contract without attaching a certified copy is vulnerable.

And the response rule is the familiar one, stated firmly: a party opposing a supported motion may not rest on the pleadings. Specific facts, in admissible form.

What happens if the motion only partly succeeds

Rule 56(d):

Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked 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 shall thereupon make an order specifying the facts that appear without substantial controversy …

This is worth using deliberately. A motion that will not win outright can still narrow the case by producing an order establishing the facts that are not really in dispute.

How Massachusetts compares

A short checklist

1. If you are the plaintiff, wait 20 days from commencement — unless the other side has already moved, in which case you may move immediately.
2. If you are the defendant, you may move at any time, including before discovery.
3. Serve at least 10 days before the hearing date. The floor is measured from the hearing, not from filing.
4. Do not rely on the rule's loose opposition deadline. Check the session's own standing order.
5. Attach sworn or certified copies of everything an affidavit refers to. Rule 56(e) requires it.
6. Make sure every affidavit shows personal knowledge, admissible facts and competence on its face.
7. Never oppose by resting on the pleadings. Specific facts, in admissible form, or the motion succeeds.
8. Consider Rule 56(d) even where you cannot win outright — an order fixing the uncontroverted facts is worth having.
9. Remember judgment can be entered against you as the moving party.

Where these rules live

• Mass. R. Civ. P. 6 — Time
• Mass. R. Civ. P. 8 — General Rules of Pleading
• Mass. R. Civ. P. 12 — Defenses and Objections
• Mass. R. Civ. P. 56 — Summary Judgment

This page explains what the rule says. It isn't legal advice, and individual sessions impose their own standing orders on summary judgment practice that this page does not cover.