THE NUTS AND BOLTS OF DISPOSITIVE MOTIONS
Eric Johnston
John Charles Hernandez
McGinnis, Lochridge & Kilgore, L.L.P.
600 Congress Avenues, Suite 2100
Austin, Texas 78701
Jo Ann Merica
Duggins Wren Mann & Romero
600 Congress Avenue, Suite 1900
Austin, Texas 78701
State Bar of Texas
Government Law Bootcamp
July 26
th
, 2017
Doubletree Hotel Austin
CHAPTER 4
The Nuts and Bolts of Dispositive Motions Chapter #
TABLE OF CONTENTS
I. TEXAS PLEAS TO THE JURISDICTION ........................................................................4
A. Introduction ............................................................................................................. 4
B. Use of Evidence ...................................................................................................... 5
C. Timing ..................................................................................................................... 6
D. Burden of Proof....................................................................................................... 7
E. Standard of Review ................................................................................................. 8
II. TEXAS RULE 91A .............................................................................................................8
A. Grounds for and Contents of Motion ...................................................................... 9
B. Timing Considerations .......................................................................................... 10
C. Hearing on Motion to Dismiss .............................................................................. 11
D. “Loser-Pay” Provision .......................................................................................... 12
E. Impact on Other Procedures.................................................................................. 14
F. Appellate Review of Trial Court’s Ruling ............................................................ 14
III. CONCLUSION ..................................................................................................................16
IV. TEXAS MOTIONS FOR SUMMARY JUDGMENT ......................................................16
A. Traditional Motion for Summary Judgment ......................................................... 17
B. No Evidence Motion for Summary Judgment ...................................................... 18
C. Timing ................................................................................................................... 19
D. The Hearing .......................................................................................................... 22
E. Evidence ................................................................................................................ 23
F. Burden of Proof and Standard of Review ............................................................. 24
V. FEDERAL RULE OF CIVIL PROCEDURE 12(B)(1): CHALLENGING
SUBJECT MATTER JURISDICTION .............................................................................25
A. Burden of Proof and Use of Evidence .................................................................. 25
1. Facial Attacks............................................................................................ 25
2. Factual Attacks.......................................................................................... 26
B. Timing ................................................................................................................... 26
C. Appeals and the Standard of Review .................................................................... 27
VI. FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6): FAILURE TO STATE A
CLAIM ...............................................................................................................................27
A. Burden of Proof..................................................................................................... 28
B. A Seminal Case: Ashcroft v. Iqbal ....................................................................... 29
C. Evidence ................................................................................................................ 29
The Nuts and Bolts of Dispositive Motions Chapter #
D. Response ............................................................................................................... 30
E. Standard of Review ............................................................................................... 30
F. Examples of successful 12(b)(6) motions: ............................................................ 30
VII. FEDERAL MOTIONS FOR SUMMARY JUDGMENT .................................................31
A. Timing ................................................................................................................... 31
B. Discovery and Evidence ....................................................................................... 32
C. Response ............................................................................................................... 34
D. Appeals ................................................................................................................. 35
E. State Motions Compared to Federal Ones ............................................................ 36
THE NUTS AND BOLTS OF DISPOSITIVE MOTIONS
By: Eric Johnston, John Charles Hernandez, Jo Ann Merica
Given that so few cases make it to trial in this era, litigation is largely a creature of motions
practice. The following six dispositive motions, three used in Texas state courts and three used in
federal courts, are the primary tools attorneys use to conclude litigation. We have attempted to
provide an overview of each type of motion as a practical reference to trial lawyers.
This paper covers Texas state and federal motions for summary judgment, state pleas to
the jurisdiction, motions under Texas Rule of Civil Procedure 91A, motions under Federal Rule
of Civil Procedure 12(b)(1), and motions under Federal Rule of Civil Procedure 12(b)(6). State
pleas to the jurisdiction are roughly analogous to Federal Rule 12(b)(1) motions, while State Rule
91A motions are roughly analogous to Federal Rule 12(b)(6) motions.
I. TEXAS PLEAS TO THE JURISDICTION
A. Introduction
A plea to the jurisdiction challenges a court’s subject matter jurisdiction to hear a case.
1
Without subject-matter jurisdiction over a dispute, a court may not decide the case.
2
Common
issues that can deprive a court of subject-matter jurisdiction include lack of standing, mootness,
failure to satisfy a court’s minimum jurisdictional amount, and ripeness. Last but not least,
governmental entities frequently use pleas to the jurisdiction to raise the issue of sovereign
immunity.
3
1
See Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing Hosner v. DeYoung, 1
Tex. 764, 769 (1847)).
2
Dale Wainwright & Lindsay Hagans, Pleas to the Jurisdiction, 72 The Advoc. (Texas) 18, 18 (2015).
3
Id.; See, e.g., Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000) (standing and jurisdictional
amount); Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 679 (Tex. App.—Austin 2004, no
pet.) (mootness); Perry v. Del Rio, 66 S.W.3d 239, 244 (Tex. 2001) (ripeness).
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5
A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of
action without reaching the merits of the claim.
4
The claims may form the context in which a
dilatory plea is raised.
5
The purpose of a dilatory plea is not to preview the merits of the case but
to establish whether they should be reached at all.
6
B. Use of Evidence
The proper function of a plea to the jurisdiction does not authorize an inquiry so far into
the substance of a claim that plaintiffs are required to put on their case simply to establish
jurisdiction.
7
Nonetheless, the Texas Supreme Court has stated that “the issues raised by a [plea
to the jurisdiction] are often such that they cannot be resolved without hearing evidence.”
8
As
such, a plaintiff may be asked to prove facts if those facts are “primarily jurisdictional.”
9
The
court should then hear evidence as necessary to determine whether it has subject matter jurisdiction
over the case.
10
Bland Independent School District v Blue offers the following example: “when a defendant
asserts that a plaintiff organization does not have standing to assert claims on behalf of its
members, an evidentiary inquiry into the nature and purpose of the organization sufficient to
determine standing does not involve a significant inquiry into the substance of the claims.
11
In a
case such as that, a determination of associational standing is a prerequisite to the case moving on
to the substantive claims.
12
Similarly, a challenge to personal jurisdiction by special appearance,
4
Bland Indep. Sch. Dist., 34 S.W.3d at 554; Tex. R. Civ. P. 85.
5
Id.
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.
11
Id.
12
Id. at 554–55.
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6
which is a dilatory plea, almost always requires consideration of evidence.
13
The rules of
procedure contain special rules for the consideration of such evidence.
14
That evidence focuses
on the defendant’s contacts with the forum, though of course such facts may overlap to some
degree with facts about the merit of the claim.
15
On the other hand, when a defendant asserts that the amount in controversy is below the
court’s jurisdictional limit, the plaintiff’s pleadings are determinative unless the defendant
specifically alleges that the amount was pleaded merely as a sham for the purpose of wrongfully
obtaining jurisdiction, or the defendant can readily establish that the court should look to
something other than the amount of money damages pled by the plaintiff to establish the amount
in controversy, as with a case regarding an injunction or a license.
16
C. Timing
The scheduling of a hearing of a plea to the jurisdiction is at the discretion of the trial court,
however, the court should determine at its earliest opportunity whether it has the constitutional or
statutory authority to decide the case before moving forward with the litigation.
17
Texas practice
and rules also allow the parties to request additional time to prepare for hearings or to conduct
discovery upon a showing of sufficient cause, and the court’s ruling on such a motion is reviewed
for abuse of discretion.
18
Whether the court’s subject-matter jurisdiction can be determined in a
preliminary hearing or should await development of the facts is left largely to the trial court’s
discretion.
19
13
Id. at 555.
14
Id.
15
Id.
16
Id. at 554.
17
Miranda, 133 S.W.3d at 226, 229; Austin & N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 405 (1903) (“[T]here
can be no doubt that the courts of Texas must look to the Constitution of this state, the enactments of the Legislature,
and the common law for their authority to proceed ....).
18
See, e.g., Tex.R. Civ. P. 166a(g), 247, 251, 252; Miranda, 133 S.W.3d at 229.
19
Bland Indep. Sch. Dist., 34 S.W.3d at 554.
The Nuts and Bolts of Dispositive Motions Chapter 4
7
When the consideration of a trial court’s subject matter jurisdiction requires the
examination of evidence, the trial court has discretion to decide whether the jurisdictional
determination should be made at a preliminary hearing or await a fuller development of the case.
20
When the jurisdictional challenge implicates the merits of the plaintiff’s cause of action and the
plea to the jurisdiction includes evidence, a trial court should review the relevant evidence to
determine if a fact issue exists.
21
If the evidence creates a fact question regarding the jurisdictional
issue, the trial cannot grant the plea to the jurisdiction, and the fact issue must be resolved by the
fact finder.
22
However, if the relevant evidence is undisputed or fails to raise a fact question on
the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.
23
D. Burden of Proof
Whether a court has subject matter jurisdiction is a question of law.
24
When a plea to the
jurisdiction challenges the pleadings, courts must determine if the pleader has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause.
25
Courts construe the
pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent.
26
“If the pleadings do
not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not
affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency
and the plaintiffs should be afforded the opportunity to amend.”
27
If the pleadings affirmatively
negate the existence of jurisdiction, a plea to the jurisdiction may be granted without opportunity
to amend.
28
20
Id.
21
Miranda, 133 S.W.3d at 227.
22
Id. at 227–28.
23
Id. at 228.
24
Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.2002).
25
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).
26
Id.
27
County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
28
Miranda, 133 S.W.3d 227.
The Nuts and Bolts of Dispositive Motions Chapter 4
8
A court must not proceed on the merits of a case until challenges to its jurisdiction have
been decided.
29
This allows the state in a timely manner to extricate itself from litigation if it is
truly immune based on sovereign immunity.
30
After the defendant asserts and supports with
evidence that the trial court lacks subject matter jurisdiction, plaintiffs, when the facts underlying
the merits and subject matter jurisdiction are intertwined, must show that there is a disputed
material fact regarding the jurisdictional issue.
31
E. Standard of Review
Appellate courts reviewing a challenge to a trial court’s subject matter jurisdiction review
the trial court’s ruling de novo.
32
Further, they indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor and take as true all evidence favorable to the nonmovant.
33
Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction
is also a question of law.
34
Practice Tip: Unlike a private citizen, a state agency or its employee may file an interlocutory
appeal on the denial of a plea to the jurisdiction if that plea to the jurisdiction is based upon
sovereign immunity.
35
II. TEXAS RULE 91A
Rule 91a allows a party to move to dismiss a cause of action that “has no basis in law or
fact.”
36
29
Id. at 228.
30
Miranda, 133 S.W.3d at 228.
31
See Huckabee v. Time Warner Entm’t Co. L.P., 19 S.W.3d 413, 420 (Tex.2000); Phan Son Van v. Pena, 990 S.W.2d
751, 753 (Tex.1999); Miranda, 133 S.W.3d at 227.
32
Texas Nat. Res. Conservation Com’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Miranda, 133 S.W.3d at 228.
33
Id.
34
Id. at 226.
35
Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841-42 (Tex. 2007).
36
Tex. R. Civ. P. 91a.1.
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A. Grounds for and Contents of Motion
In all cases except cases brought under the Texas Family Code or Chapter 14 of the Texas
Civil Practice and Remedies Code, a party may file a motion “to dismiss a cause of action on the
grounds that [the cause of action] has no basis in law or fact.
37
Rule 91a provides the following guidance for assessing the merits of a cause of action: “A
cause of action has no basis in law if the allegations, taken as true, together with the inferences
reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has
no basis in fact if no reasonable person could believe the facts pleaded.”
38
A motion to dismiss must state that it is made pursuant to Rule 91a, “identify each cause
of action to which it is addressed, and . . . state specifically the reasons the cause of action has no
basis in law, no basis in fact, or both.”
39
The trial court may not consider evidence in ruling on the motion and must decide the
motion based solely on the pleading of the cause of action, together with any exhibits permitted
by Rule 59 of the Texas Rules of Civil Procedure.
40
Practice Tip: A vague assertion that a cause of action is groundless will not suffice. A motion to
dismiss must state specifically the reasons why each challenged cause of action has no basis in law
and/or in fact
37
Tex. R. Civ. P. 91a.1; In Ramirez v. Owens, the trial court granted a Rule 91a motion in a case governed by Chapter
14 of the Texas Civil Practice and Remedies Code. Because neither party complained of it on appeal, the dismissal
was affirmed. No. 07-15-00152-CV, 2015 WL 7422890, at *1 (Tex. App.—Amarillo Nov. 19, 2015, pet. denied)
(mem. op.).
38
Id.
39
Id. 91a.2; see also Quintanilla v. Trevino, No. 13-15-00377-CV, 2016 WL 1552025, at *3 (Tex. App.—Corpus
Christi Apr. 14, 2016, no pet. h.) (mem. op.) (trial court erred through sue sponte dismissal without a Rule 91a motion
being filed).
40
Tex. R. Civ. P. 91a.6; see also Wooley v. Schafer, 447 S.W.3d 71, 75 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied) (finding Rule 91a motions to be analogous to pleas to the jurisdiction, which require a court to determine
whether the pleader has alleged facts demonstrating jurisdiction).
The Nuts and Bolts of Dispositive Motions Chapter 4
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B. Timing Considerations
Under Rule 91a, “[a] motion to dismiss must be . . . filed within 60 days after the first
pleading containing the challenged cause of action is served on the movant[.]”
41
Considering this
tight time period, any discovery that will be helpful in determining the validity of a motion to
dismiss should be initiated directly after the cause of action is pled. But a party need not engage
in any discovery, much less thorough discovery, before filing a motion to dismiss under Rule 91a.
42
Several deadlines in Rule 91a are based on the date the motion to dismiss is set to be heard.
First, the motion must be filed at least 21 days before the hearing.
43
Second, “[a]ny response to the
motion must be filed no later than 7 days before the date of the hearing.”
44
Third, a court will be
precluded from ruling on the motion if, at least three days before the date of the hearing, the
respondent nonsuits the challenged cause of action or the movant withdraws the motion.
45
Fourth,
if a respondent amends the challenged cause of action at least three days before the date of the
hearing, the movant may—before the date of the hearing—withdraw the motion or file an amended
motion directed to the amended cause of action.
46
If a movant responds to amended pleadings by filing an amended motion within the allotted
time period—before the date of the hearing—the amended motion “restarts the time periods” in
41
Tex. R. Civ. P. 91a.3(a).
42
See Gonzales v. Dallas Cty. Appraisal Dist., No. 05-13-01658-CV, 2015 WL 3866530, at *5 (Tex. App.—Dallas
June 23, 2015, no. pet.) (mem. op.) (“Rule 91a is intended to be asserted and determined soon after the filing of the
case and before the opportunity for thorough discovery.”).
43
Tex. R. Civ. P. 91a.3(b).
44
Id. 91a.4.
45
Id. 91a.5(a); see also Thuesen v. Amerisure Ins. Co., 487 S.W.3d 291, 301 (Tex. App.—Houston [14th Dist.] 2016,
no pet.) (stating that if a claimant timely nonsuits claims that are the subject of a Rule 91a motion, the court cannot
rule on the motion).
46
Tex. R. Civ. P. 91a.5(b); see also Drake v. Walker, No. 05-14-00355-CV, 2015 WL 2160565, at *2 (Tex. App.—
Dallas May 8, 2015, no pet.) (mem. op.) (affirming dismissal of claims and finding that an amended petition did not
cancel a motion to dismiss under Rule 91a).
The Nuts and Bolts of Dispositive Motions Chapter 4
11
Rule 91a. Tex. R. Civ. P. 91a.5(d). But if any amendments, as well as nonsuits, are not filed
within the allotted time period under Rule 91a, the court is prohibited from considering them.
47
Practice Tip: If you file a motion to dismiss and then decide the grounds for the motion are faulty,
withdraw the motion at least three days before the motion is set to be heard so that you can avoid
incurring attorney fees and costs associated with losing the motion. For the same reason, if you
file a cause of action that is challenged via a motion to dismiss and you decide the cause of action
has no merit as pleaded, nonsuit or amend it at least three days before the motion to dismiss is set
to be heard.
The rule requires that a court grant or deny a motion to dismiss within 45 days after the
motion is filed, “unless the motion, pleading, or cause of action is withdrawn, amended, or
nonsuited as specified in 91a.5.”
48
As indicated in Rule 91a.5, “[i]f an amended motion is filed in
response to an amended cause of action in accordance with Rule 91a.5(b), the court must rule on
the motion within 45 days of the filing of the amended motion and the respondent must be given
an opportunity to respond to the amended motion.”
49
Failure of the court to rule on a 91a motion to dismiss within the 45-day period does
not preclude a later ruling. The Austin court of appeals has noted that the 45–day
period during which a court “shall” deny or grant a Rule 91a motion to dismiss is
merely directory rather than mandatory and is not a hard deadline that prohibits the
court from considering the substance of the motion to dismiss after the expiration of
the 45-day time period.
50
C. Hearing on Motion to Dismiss
A hearing on a motion to dismiss may be oral or by submission.
51
Regardless, “[e]ach
party is entitled to at least 14 days’ notice of the hearing[.]”
52
Because dismissal is a “harsh
47
Id. 91.a.5(c); see also Dailey v. Thorpe, 445 S.W.3d 785, 790 (Tex. App.—Houston [1st Dist.] 2014, no pet.)
(concluding that a plaintiff who chooses neither to nonsuit nor amend challenged causes of action before a hearing
cannot cure a defective pleading after the hearing).
48
Comment to 2013 Change to Rule 91a; see also Tex. R. Civ. P. 91a.3(c); Drake, 2015 WL 2160565, at *2 (noting
that Rule “91a.5 requires the court to rule on a motion to dismiss that has not been withdrawn”).
49
Comment to 2013 Change to Rule 91a.
50
Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin 2016, pet. denied)
51
Tex. R. Civ. P. 91a.6.
52
Id.
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12
remedy,” Rule 91a’s notice provision is strictly construed.
53
For example, the San Antonio court
of appeals has held that a trial court must provide the parties with formal notice of a hearing before
ruling on a Rule 91a motion, “regardless of whether the trial court will hold an oral hearing.”
54
The court also held “that Rule 91a does not contain implied notice of a hearing on the forty-fifth
day after the motion is filed that triggers the other deadlines in the rule.”
55
Except to the extent required to determine an award of attorney’s fees and costs, the court
is prohibited from considering evidence when ruling on the motion.
56
The motion must be decided
based solely on the pleading of the cause of action, together with any pleading exhibits permitted
by Rule [of Civil Procedure] 59.”
57
D. “Loser-Pay” Provision
With some limited exceptions (for actions by or against a governmental entity or a public
official acting in his her official capacity or under color of state law), a court is required to “award
the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred
with respect to the challenged cause of action in the trial court.”
58
If the claimant nonsuits the
claims challenged in a Rule 91a motion, there is no “prevailing party on the motion,” and the court
53
Gaskill v. VHS San Antonio Partners, LLC, 456 S.W.3d 234, 238 (Tex. App.—San Antonio 2014, pet. denied).
54
Id. at 239.
55
Id. (concluding that a trial court erred by conducting a hearing on a Rule 91a motion without giving prior notice of
said hearing).
56
Id.
57
Id.; see also Dailey, 445 S.W.3d at 790 (concluding that the trial court did not err in granting a dismissal motion
without giving the parties an opportunity to be heard so that credibility and/or demeanor of the parties and witnesses
could be ascertained, reasoning that Rule 91a “expressly prohibits trial courts from considering the type of evidence
that the [parties] complain that they were denied an opportunity to present”).
58
Tex. R. Civ. P. 91a.7; see also Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 187 (Tex. App.—Houston [14th
Dist.] 2015, pet. denied) (“Undisputedly, the rule mandates an award of attorney’s fees to a prevailing party, and the
award is not discretionary.”); Drake v. Chase Bank, No. 02-13-00340-CV, 2014 WL 6493411 *2 (Tex. App.—Fort
Worth Nov. 20, 2014, no pet.) (mem. op.) (noting that Rule 91a’s “language suggests that an award of attorneys’ fees
to the prevailing party on a rule 91a motion to dismiss is mandatory, not discretionary[,]” and concluding that rule
does not exempt “indigent parties from paying attorneys’ fees to a party who prevails under rule 91a”).
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13
cannot award costs and attorney’s fees under Rule 91a.
59
A defendant who has filed a Rule 91a
motion may “withdraw” the motion after seeing the response without incurring fees.
60
However,
once a trial court has decided a Rule 91a motion, the court must “consider evidence regarding
costs and fees in determining the award.”
61
Attorney’s fees ancillary to the Rule 91a motion may also be recovered. For example, the
Fort Worth Court of Appeals recently affirmed the award of costs and fees related to a motion to
reconsider a dismissal under Rule 91a.
62
The Houston court of Appeals recently held that a
prevailing party on a Rule 91a motion is entitled to recover its reasonable and necessary appellate
attorney’s fees.
63
Two appellate courts have addressed the costs and fees provision when a party moves to
dismiss multiple claims and succeeds regarding some but not all claims. The Houston Fourteenth
District Court of Appeals analyzed the issue and held that a party who prevails in regard to some
but not all claims must segregate its fees by claim, if possible, and can only recover fees related to
the claims on which it prevailed.
64
The court also concluded that, if a party seeks all fees, then it
has the burden to show that segregation is not required.
65
The Dallas Court of Appeals also
addressed the impact of a mixed outcome on appeal and concluded, without analysis, that a remand
was necessary for reconsideration of attorney’s fees.
66
59
Thuesen, 2016 WL 514404, at *7-9 (reversing the trial court’s award of costs and attorney’s fees because, even
though the defendants prevailed in the lawsuit, the defendants were not the “prevailing party on the motion”).
60
Tex. R. Civ. P. 91a.5(a).
61
Tex. R. Civ. P. 91a.7; see also Tex. R. Civ. P. 91a.7.
62
See Drake, 2014 WL 6493411, at *3.
63
See Zheng, 468 S.W.3d at 187–88.
64
Id. at 187.
65
Id.
66
See Drake, 2015 WL 2160565, at *4 (“[E]ach party has prevailed in part and the award of attorney’s fees is [thus]
subject to reconsideration on remand.”).
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14
Practice Tip: “Attorney fees awarded under [Rule] 91a.7 are limited to those associated with [a]
challenged cause of action, including fees for preparing or responding to the motion to dismiss.”
67
Comment to 2013 Change to Rule 91a. Thus, if you expect to file a motion or have to defend
against a motion, segregate your billing records to delineate clearly which fees relate to each
challenged cause of action, to the extent possible.
E. Impact on Other Procedures
Rule 91a.8 provides explicitly that a party does not submit itself to a court’s full jurisdiction
by filing a motion to dismiss. Instead, the party submits to the court’s jurisdiction only in
proceedings on the motion.
68
Finally, Rule 91a.9 provides that the dismissal “rule is in addition
to, and does not supersede or affect, other procedures that authorize dismissal.”
69
Examples of
such “other procedures” include special exceptions and motions for summary judgment.
70
F. Appellate Review of Trial Court’s Ruling
Appellate review of a trial court’s ruling under Rule 91a is generally de novo.
71
Thus, like
trial courts, appellate courts must “construe the pleadings liberally in favor of the plaintiff, look to
the pleader’s intent, and accept as true the factual allegations in the pleadings” to determine if the
petition sufficiently alleges a cause of action.”
72
De novo review is proper because the availability
of a remedy under alleged facts is a question of law and because the rule’s factual-plausibility
standard is akin to a “legal-sufficiency review.”
73
The City of Dallas Court cited not only the
Wooley opinion but also City of Keller v. Wilson, (Tex. 2005), for the proposition that Legal-
68
Tex. R. Civ. P. 91a.8.
68
Tex. R. Civ. P. 91a.8.
69
Id. 91a.9.
70
See, e.g., Zheng, 468 S.W.3d at 185 (concluding that a party’s Rule 91a contention “seem[ed] to be a summary-
judgment ground” that the party was entitled to have evaluated under summary judgment standards); Townsend v.
Montgomery Cent. Appraisal Dist., No. 14-14-00103-CV, 2015 WL 971313, at *8 (Tex. App.—Houston [14th Dist.]
Mar. 3, 2015, no pet.) (mem. op.) (refusing to apply Rule 91a deadlines to a summary judgment motion granted by a
trial court).
71
City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (finding that malfunctioning and other problems with
9-1-1 system did not proximately cause wrongful death as a matter of law based on the pleadings).
72
Wooley, 447 S.W.3d at 76.
73
City of Dallas, 494 S.W.3d at 724.
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15
sufficiency review must credit favorable evidence if reasonable jurors could, and disregard
contrary evidence unless reasonable jurors could not.”
74
Mandamus relief may also be available.
75
Some courts of appeals have also “likened the standard for addressing a Rule 91a motion
to the standard for addressing a motion under Federal Rule of Civil Procedure 12(b)(6), which
allows dismissal if a plaintiff fails ‘to state a claim upon which relief can be granted.’”
76
Although
some of these courts have recognized that the language in Rule 91a is not identical to the language
in federal Rule 12(b)(b), they have relied on federal Rule 12(b)(6) precedent in determining
whether a claim should be dismissed under Rule 91a.
77
This reliance on federal jurisprudence raises the question: what remains of the fair-notice
pleading standard under Rule 45 of the Texas Rules of Civil Procedure?
78
Some courts have
recognized that Rule 91a.1 does not supersede prior pleading requirements set forth in Rule 45 of
the Texas [R]ules [of Civil Procedure], but has simply modified the standard such that ‘fair notice’
must now be judged in the context of Rule 91a.”
79
74
Id.
75
In re Essex Ins. Co., 450 S.W.3d 524, 526-28 (Tex. 2014) (per curiam) (trial court abused discretion by not
dismissing plaintiff’s declaratory judgment claim against insurer in personal injury action).
76
Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 186 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied) (citing Wooley, 447 S.W.3d at 75-76, and Fed. R. Civ. P. 12(b)(6)).
77
See, e.g., Zheng, 2015 WL 3424702, at *4; Wooley, 447 S.W.3d at 75-76; GoDaddy.com, LLC v. Toups, 429 S.W.3d
752, 754 (Tex. App.—Beaumont 2014, pet. denied); Kidd v. Cascos, No. 03-14-00805, 2015 WL 9436655 *2 (Tex.
App.—Austin Dec. 22, 2015, no pet.).
78
See Davis v. Metro. Lloyds Ins. Co. of Texas, No. 4:14-CV-957-A, 2015 WL 456726, at *2 (N.D. Tex. Feb. 3, 2015)
(“As this court explained in Plascencia, the effect of Rule 91(a).1 [sic] . . . is to cause the pleading standard in Texas
to be substantially the same as the federal standard, as outlined by the Supreme Court in Bell Atlantic Corp. v.
Twombly, 550 U.S. 554 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).”); Craig
Penfold Props., Inc. v. The Travelers Cas. Ins. Co., No. 3:14-CV-326-L, 2015 WL 356885 *3 (N.D. Tex. Jan. 28,
2015) (“This new rule now allows a state court to do what a federal court is allowed to do under Federal Rule of Civil
Procedure 12(b)(6).”).
79
Resendez v. Scottsdale Ins. Co., No. 1-15-CV-1082-RP, 2016 WL 756576, at *2 (W.D. Tex. Feb. 26, 2016); see
also New Life Assembly of God of City of Pampa, Tex. v. Church Mutual Ins. Co., No. 2:15-CV-00051-J, 2015 WL
2234890, at *5 (N.D. Tex. May 12, 2015) (“Rule 91a.1 has simply modified the existing Tex. R. Civ. P. 45(b) fair
notice pleading standard such that fair notice must now be judged in the context of Rule 91a.”) (internal quotes
omitted).
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When a Rule 91a motion contains multiple grounds for dismissal and the trial court’s order
does not specify the ground upon which it relied, one court of appeals has held that the claimant
attacking the dismissal order must “negate the validity of each ground upon which the trial court
could have relied.
80
Thus, as when challenging orders granting summary judgments, if a party
“fails to address any particular ground, [the court] must uphold the order on the unchallenged
ground.”
81
III. CONCLUSION
Litigants are using Rule 91a dismissal procedures successfully in a wide variety of cases.
Case law relating to Rule 91a is developing rapidly. Existing case law makes clear that parties
must carefully follow the procedures in Rule 91a and, to the extent possible, track separately the
attorney’s fees incurred with respect to each cause of action challenged in a Rule 91a motion, both
in the trial court and on appeal. The full extent to which the federal Rule 12(b)(6) standards will
impact Rule 91a jurisprudence remains to be determined, and only time will tell whether and how
Rule 91a jurisprudence will ultimately impact fair-notice pleading standards in Texas.
IV. TEXAS MOTIONS FOR SUMMARY JUDGMENT
A summary judgment is the primary dispositive motion used to dispose of a case before
trial. A motion for summary judgment is a creature of written pleadings, so even if there is an
opportunity for a hearing, parties must be careful to include all of the arguments they will rely on
in the written motion. A motion for summary judgment will only be granted for a party that
submits a written motion, or joins in one, so codefendants should take care not to rely on the other’s
motion to dispose of a claim.
82
In Texas state courts, there are two types of motions for summary
80
Parkhurst v. Office of Attorney Gen. of Tex., 481 S.W.3d 400, 402 (Tex. App.—Amarillo 2015, no pet.).
81
Id. (citations omitted).
82
McAllen Hosps., L.P. v. State Farm Mut. Ins. Co. of Tex., 433 S.W.3d 535, 542 (Tex. 2014).
The Nuts and Bolts of Dispositive Motions Chapter 4
17
judgment: a traditional motion for summary judgment and a no evidence motion for summary
judgment.
A. Traditional Motion for Summary Judgment
In a traditional motion for summary judgment, the movant must show that no issue of
material fact exists and that it is entitled to judgment as a matter of law.
83
To prevail, a moving
defendant must disprove at least one element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense.
84
A plaintiff, on the other hand,
must show that it should prevail on each element of the cause of action, except for the amount of
damages.
85
A traditional motion for summary judgment must be supported by pleadings on file at
the time of the hearing.
86
If the movant’s motion and evidence establish the movant’s right to judgment as a matter
of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat
summary judgment.
87
A fact is material when it “affects the ultimate outcome of the suit under
the governing law.”
88
A material fact issue is genuine if “reasonable… jurors could differ in their
conclusions in light of” the evidence.
89
In other words, if evidence exists such that a reasonable
jury could find the fact in favor of the nonmoving party, summary judgment cannot be granted.”
90
83
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
84
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).
85
See, e.g., Rivera v. White, 234 S.W.3d 802, 805 (Tex. App.— Texarkana 2007, no pet.); Fry v. Comm’n for Lawyer
Discipline, 979 S.W.2d 331, 334 (Tex. App.—Houston [14th Dist.] 1998, pet. denied); Green v. Unauthorized
Practice of Law Comm., 883 S.W.2d 293, 297 (Tex. App.—Dallas 1994, no writ); Brooks v. Sherry Lane Nat’l Bank,
788 S.W.2d 874, 876 (Tex. App.— Dallas 1990, no writ).
86
Tex. R. Civ. P. 166a(c).
87
M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex. 2000) (per curiam).
88
Rayon v. Energy Specialties, Inc., 121 S.W.3d 7, 11 (Tex. App.—Fort Worth 2002, no pet.) (citing Lampasas v.
Spring Ctr., Inc., 988 S.W.2d 428, 433 (Tex. App.—Houston [14th Dist.] 1999, no pet.)).
89
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
90
Rayon v. Energy Specialties, Inc., 121 S.W.3d 7, 11-12 (Tex. App.—Fort Worth 2002, no pet
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In deciding whether a fact issue exists, the court reviews the evidence in the light most favorable
to the nonmovant.
91
B. No Evidence Motion for Summary Judgment
In a no evidence summary judgment, a party moves for summary judgment on the ground
that there is no evidence of an essential element or elements of a claim or defense on which an
adverse party has the burden of proof at trial.
92
The movant need not produce any evidence
supporting its no-evidence motion.
93
Instead, the motion shifts the burden to the nonmovant to
raise a genuine issue of material fact.
94
Otherwise, the court must grant the motion.
95
To prevail, the movant should identify the grounds for the motion, specifically the elements
of the causes of action or defense for which there is no evidence.
96
The grounds cannot broadly
state that there is no evidence to support the claims.
97
Instead, the motion must provide adequate
information for opposing the motion, which the Supreme Court has called a “fair notice”
standard.
98
The degree of specificity required depends on the case.
99
A movant can use the pattern
jury questions to help identify and attack the gaps in the evidence supporting the non-movant’s
causes of action or defenses.
100
91
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); see Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).
92
W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
93
TEX. R. CIV. P. 166a(i); Home State Cnty. Mut. Ins. Co. v. Horn, No. 12-07-00094-CV, 2008 WL 2514332, at *2
(Tex. App.— Tyler June 25, 2008, pet. denied) (mem. op.); Branson v. Spiros Partners Ltd., No. 04-07-00007-CV,
2007 WL 4547502, at *2 (Tex. App.—San Antonio Dec. 28, 2007, no pet.) (mem. op.).
94
Home State Cnty. Mut. Ins. Co., 2008 WL 2514332, at *2;
95
TEX. R. CIV. P. 166a(i).
96
Id.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,
310 (Tex. 2009).
97
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
98
Id.
99
Id.
100
James M. Stanton, How to Prevail at a Summary Judgment Hearing, TEX. LAW., May 21, 2012.
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A party that does not have the burden of proof may file a combined traditional and no
evidence motion for summary judgment.
101
Such combined motions are common in practice.
Practice Tip: When reviewing case law on summary judgment, ask yourself: is the court
ruling on a traditional or a no evidence motion for summary judgment? The opinion may not
always make it obvious.
C. Timing
A plaintiff may file a traditional motion for summary judgment any time after the adverse
party answers the suit.
102
A defendant may file a motion for summary judgment at any time after
the plaintiff has filed suit, even before filing an answer.
103
However, a motion for summary
judgment must be filed and served at least twenty-one days before the time specified for the hearing
on the summary judgment.
104
Parties may alter the deadlines for filing summary judgment motions
by Rule 11 agreement.
105
Periods governing summary judgment procedures are counted in the
same manner as for other procedural rules.
106
Even though allowed, filing a traditional motion for summary judgment before filing an
answer is usually not appropriate. Exceptions include when the court must only interpret a statute,
interpret an unambiguous contract, or apply the statute of limitations. If the summary judgment
grounds are fact-based, generally the nonmovant will have grounds for a continuance to conduct
some discovery.
107
101
Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004).
102
Rule 166a(a).
103
TEX. R. CIV. P. 166a(b);Zimmelman v. Harris Cnty., 819 S.W.2d 178, 181 (Tex. App.— Houston [1st Dist.]
1991, no writ).
104
TEX. R. CIV. P. 166a(c); Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994) (per curiam).
105
TEX. R. CIV. P. 11; D.B. v. K.B., 176 S.W.3d 343, 347 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
106
Lewis, 876 S.W.2d at 315-16 (citing TEX. R. CIV. P. 4) (disapproving of a series of appellate court decisions that
did not add the extra three days for service by mail or telephonic document transfer); The day a motion for summary
judgment is served is not included in computing the minimum twenty-one-day notice for hearing, but the day of the
hearing is. Lewis, 876 S.W.2d at 315-16 (citing TEX. R. CIV. P. 4). If the motion is served by mail, three days are
added to the twenty-one-day notice period. Id. at 315.
107
See Judge David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, 52 Hous.
L. Rev. 773, 808 (2015).
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Before filing a no-evidence summary judgment, there must be an “adequate time for
discovery”, though discovery does not need to have been completed.
108
Specifically, the rule
provides in relevant part:
(i) No-Evidence Motion. After adequate time for discovery, a party without presenting
summary judgment evidence may move for summary judgment on the ground that there is
no evidence of one or more essential elements of a claim or defense on which an adverse
party would have the burden of proof at trial.
109
The “Notes and Comments” section states that “[a] discovery period set by pretrial order
should be adequate opportunity for discovery unless there is a showing to the contrary, and
ordinarily a motion under paragraph (i) would be permitted after the period but not before.”
110
A party waives its right to challenge failure to receive twenty-one days’ notice if that party
“received notice of the hearing, appeared at it, filed no controverting affidavit, and did not ask for
a continuance.”
111
“An allegation that a party received less notice than required by statute… may
not be raised for the first time on appeal.”
112
A judge may not grant a summary judgment without
21 days’ notice of the setting.
113
However, failure to provide 21 days’ notice is only reversible if
the nonmovant can show harm.
114
Additional notice is not required for a court to rehear a denied
motion for summary judgment.
115
A party opposing a motion for summary judgment must file a response at least seven days
before the day of the hearing.
116
The seven-day rule applies to responses of all kinds, including
108
TEX. R. CIV. P. 166a(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App. Houstin — [14
th
Dist.]
2000, pet. denied).
109
TEX. R. CIV. P. 166a(i) (emphasis added).
110
TEX. R. CIV. P. 166a(i) cmt.—1997.
111
Negrini v. Beale, 822 S.W.2d 822, 823 (Tex. App.—Houston [14th Dist.] 1992, no writ).
112
Id. at 823.
113
Milam v. Nat’l Ins. Crime Bureau, 989 S.W.2d 126, 129 (Tex. App.—San Antonio 1999, no pet.).
114
Id.
115
Winn v. Martin Homebuilders, Inc., 153 S.W.3d 553, 555-56 (Tex. App.—Amarillo 2004, no pet.).
116
TEX. R. CIV. P. 166a(c).
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21
traditional responses, cross-motions for summary judgment, a special exception due to a lack of
clarity or ambiguity in the motion for summary judgment, and amended pleadings.
117
The nonmovant must obtain leave of court to file a late response.
118
To file a late response,
the filer must show good cause and no undue prejudice to the movant. The court has discretion
whether or not to allow a late response. If a court allows a late response, the court “must
affirmatively indicate in the record acceptance of the late filing,” though the bar for what indicates
acceptance is fairly low.
119
A movant should file a reply if the movant objects to a nonmovant’s evidence.
120
However,
the movant is not entitled to use its reply to amend its motion for summary judgment or to raise
new and independent summary-judgment grounds.
121
Neither may a movant rely on his or her
reply to the nonmovant’s response to provide the requisite specificity (to state the elements of the
claim for which there is no evidence) required when filing a no-evidence motion for summary
117
Murphy v. McDermott Inc., 807 S.W.2d 606, 609 (Tex. App.— Houston [14th Dist.] 1991, writ denied); McConnell
v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993) (finding that any confusion regarding an exception
must be responded to in written form, filed, and served at least seven days before the hearing); Sosa v. Cent. Power &
Light, 909 S.W.2d 893, 895 (Tex. 1995) (per curiam).
118
Neimes v. Kien Chung Ta, 985 S.W.2d 132, 139 (Tex. App. — San Antonio 1998, pet. dism’d by agr.) (citing TEX.
R. CIV. P. 166a(c)).
119
See, e.g., Shore v. Thomas A. Sweeney & Assocs., 864 S.W.2d 182, 184-85 (Tex. App.—Tyler 1993, no writ)
(holding that the docket entry allowing a late response satisfied Texas Rule of Civil Procedure 166a). But see Energo
Int’l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151-52 (Tex. App.—Dallas 1986, no writ) (stating that a
docket entry is inadequate indication of acceptance).
120
See Alaniz v. Hoyt, 105 S.W.3d 330, 339 (Tex. App.—Corpus Christi 2003, no pet.) (observing that failure to file
objections in writing or at the hearing results in waiver of any error on appeal), abrogated on other grounds by Fort
Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879 (Tex. 2009) (per curiam).
121
Reliance Ins. Co. v. Hibdon, 333 S.W.3d 364, 378 (Tex. App.— Houston [14th Dist.] 2011, pet. denied).
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judgment.
122
The movant may file a reply up until the day of the hearing, unless local rules say
otherwise.
123
A special exception must be filed at least three days prior to the hearing.
124
If the plaintiff amends the pleadings after the defendant files a motion for summary
judgment, the defendant will likely have to amend or supplement the motion to address it. That is
why it is beneficial to have a discovery control plan in place and file a motion for summary
judgment after the deadline for amending pleadings.
D. The Hearing
A motion for summary judgment is based on written argument and written evidence.
125
An
oral hearing is not required, but a hearing date or submission date must be set.
126
The hearing is a
review of the written motion, response, reply, and attached evidence, with no oral testimony.
127
This means that the court may not consider oral objections to summary judgment evidence that are
not also within filed pleadings.
128
At the hearing, counsel should object to oral testimony not based
on the written documents on file.
129
However, parties may waive these restrictions: “An oral
122
Barnes v. Tex. A&M Univ. Sys., No. 14-13-00646-CV, 2014 WL 4915499, at *6 (Tex. App.—Houston [14th Dist.]
Sept. 30, 2014, no pet.); Meru, 136 S.W.3d at 390 n.3.
123
See, e.g., Ennis, Inc. v. Dunbrooke Apparel Corp., 427 S.W.3d 527, 530 n.1 (Tex. App.—Dallas 2014, no pet.)
(noting with approval that the trial court took under advisement the movant’s reply that was filed on the day of the
hearing); Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, LLP, 404 S.W.3d 75, 88 & n.4 (Tex. App.—
Houston [14th Dist.] 2013, no pet.); Wright v. Lewis, 777 S.W.2d 520, 522 (Tex. App.—Corpus Christi 1989, writ
denied) (concluding that there was no harm in allowing objections to be filed before or even on the day of the hearing);
Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.—Fort Worth 2006, pet. denied);But see DALL. CNTY. (TEX.)
CIV. DIST. CT. LOC. R. 2.09 (“[R]eply briefs in support of a motion for summary judgment must be filed and served
no less than three days before the hearing.”).
124
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993) (citing TEX. R. CIV. P. 21).
125
TEX. R. CIV. P. 166a(c).
126
Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam).
127
TEX. R. CIV. P. 166a(c); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 n.4 (Tex. 1992); Richards v. Allen,
402 S.W.2d 158, 160-61 (Tex. 1966).
128
But see Aguilar v. LVDVD, L.C., 70 S.W.3d 915, 917 (Tex. App.— El Paso 2002, no pet.) (suggesting a ruling can
be implied).
129
See El Paso Assocs., Ltd. v. J.R. Thurman & Co., 786 S.W.2d 17, 19-21 (Tex. App.—El Paso 1990, no writ)
(affirming the sustaining of an objection to oral testimony at a summary judgment hearing and declaring that no oral
testimony was received); Nash v. Corpus Christi Nat’l Bank, 692 S.W.2d 117, 119 (Tex. App.—Dallas 1985, writ
ref'd n.r.e.) (concluding that it is improper for a trial court to hear testimony of witnesses at a summary judgment
hearing).
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waiver or agreement made in open court satisfies [R]ule 11 if it is described in the judgment or an
order of the court.”
130
E. Evidence
Summary judgment evidence may consist of deposition transcripts, interrogatory answers,
other discovery responses, pleadings, admissions, affidavits (including sworn or certified papers
attached to the affidavits), unsworn declarations, stipulations of the parties, and authenticated or
certified public records.
131
Generally, pleadings cannot constitute summary judgment evidence,
unless the movant uses the nonmovant’s pleadings to show some deficiency in the nonmovant’s
claims or defenses.
132
Pleadings used in this manner include the motion for summary judgment
and the response.
133
The rules of evidence fully apply to summary judgment proceedings.
134
The standard of
review on appeal for the admission or exclusion of evidence is abuse of discretion.
135
The
“reasonable juror” standard is used to determine whether a fact issue exists.
136
“To obtain reversal
of a judgment based on error in the admission or exclusion of evidence, an appellant must show
that the trial court’s ruling was in error and that the error probably caused the rendition of an
improper judgment.”
137
One major difference between evidence at trial and evidence at hearings
130
Clement v. City of Plano, 26 S.W.3d 544, 549 (Tex. App.—Dallas 2000, no pet.), overruled on other grounds by
Telthorster v. Tennell, 92 S.W.3d 457 (Tex. 2002).
131
TEX. R. CIV. P. 166a(c).
132
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Hidalgo v. Sur. Sav. & Loan Ass’n,
462 S.W.2d 540, 545 (Tex. 1971); Watson v. Frost Nat’l Bank, 139 S.W.3d 118, 119 (Tex. App.—Texarkana 2004,
no pet.); Hidalgo, 462 S.W.2d at 543 n.1.
133
Hidalgo, 462 S.W.2d at 545.
134
Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881-82 (Tex. 2009) (per curiam); United
Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per curiam).
135
United Blood Servs. v. Longoria, 938 S.W.2d 29, 30-31 (Tex. 1997) (per curiam).
136
Hittner & Liberato, supra note 102, at 889.
137
Patrick v. McGowan, 104 S.W.3d 219, 221 (Tex. App.—Texarkana 2003, no pet.).
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on motions for summary judgment is that “a summary judgment cannot be based on an attack of a
witness’s credibility.”
138
Summary judgment evidence must be filed concurrently or before the filing it supports.
139
Summary judgment evidence may be filed late with leave of court granted by written order, so
long as the evidence is filed before judgment.
140
To admit evidence that would be excluded for
filing late, a party must show good cause or the lack of unfair surprise or unfair prejudice.
141
A claim of inability to obtain discovery necessary to defeat a summary judgment may be
waived if the respondent did not request a continuance on that basis.
142
A party’s explanation of
how an expert will testify, in response to a discovery request, is not competent summary judgment
evidence.
143
Practice Tip: A no evidence motion for summary judgment has similar standards to those of
directed verdicts. In other words, if there is enough evidence to defeat a directed verdict, there is
enough evidence to defeat a no evidence motion for summary judgment.
F. Burden of Proof and Standard of Review
A trial court’s granting of a summary judgment is reviewed de novo on appeal.
144
Any
evidence that was presented at the trial level is considered in the light most favorable to the
nonmovant, and any disputed evidence favorable to the nonmovant will be taken as true.
145
A no
evidence motion for summary judgment will be upheld if there is no more than a scintilla of
evidence offered to prove a challenged element, or if the evidence established conclusively the
138
State v. Durham, 860 S.W.2d 63, 66 (Tex. 1993).
139
TEX. R. CIV. P. 166a(c).
140
Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Beavers v. Goose Creek Consol. I.S.D., 884
S.W.2d 932, 935 (Tex. App.—Waco 1994, writ denied).
141
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687-88 (Tex. 2002).
142
Elizondo v. Krist, 415 S.W.3d 259, 267-69 (Tex. 2013).
143
Kiesel v. Rentway, 245 S.W.3d 96, 101 (Tex. App.—Dallas 2008, pet. Dism’d).
144
Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam).
145
Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).
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opposite of the challenged element.
146
More than a scintilla exists when the evidence is such that
it “would enable reasonable and fair-minded people to differ in their conclusions.”
147
V. FEDERAL RULE OF CIVIL PROCEDURE 12(B)(1):
CHALLENGING SUBJECT MATTER JURISDICTION
Federal Rule of Civil Procedure 12(b)(1) functions similarly to state pleas to the jurisdiction:
It is often used to challenge subject matter jurisdiction of the court, and is therefore to assert the
sovereign immunity of a defendant.
148
It is also used to allege that the case should not be in federal
court for lack of diversity or federal question jurisdiction, and to challenge the plaintiff’s standing
to bring the suit.
149
Other reasons to bring a 12(b)(1) motion include contesting ripeness,
mootness, lack of supplemental jurisdiction, and the abstention doctrine. Like a 12(b)(6) motion,
a 12(b)(1) motion must be in writing, but whereas a court may address a failure to state a claim
sua sponte, a court has a duty to address a lack of subject matter jurisdiction sua sponte.
150
Like
a state plea to the jurisdiction, a court may resolve a 12(b)(1) motion with or without a hearing.
A. Burden of Proof and Use of Evidence
1. Facial Attacks
There are two kinds of 12(b)(1) motions. The first is a facial attack on the pleadings, which
challenges the sufficiency of the allegations in the complaint. Once a defendant files a motion to
dismiss for lack of subject matter jurisdiction, it is the plaintiff’s burden to affirmatively establish
that the court has subject matter jurisdiction.
151
In a facial attack, the allegations in the complaint
146
City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
147
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
148
See, e.g., Harrison v. Potter, 323 F. Supp. 2d 593, 604 (S.D.N.Y. 2004).
149
§ 1350 Motions to Dismiss—Lack of Jurisdiction Over the Subject Matter, 5B Fed. Prac. & Proc. Civ. § 1350 (3d
ed.).
150
United Inv’rs Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (citing Feidt v. Owens
Corning Fiberglas Corp., 153 F.3d 124, 128 (3d Cir.1998))
151
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).
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26
are taken as true and construed in the light most favorable to the nonmovant.
152
A respondent to
a 12(b)(1) motion facially attacking the pleadings should consider amending the pleading, which
can be done once as a “matter of course” under Rule 15(a) within twenty-one days after the
defendant’s answer or the 12(b)(1) motion is served, whichever is earlier.
153
2. Factual Attacks
The second kind of 12(b)(1) motion asserts the facts alleged in the complaint that establish
the court’s jurisdiction are not true. Such a motion is often triggered through the use of affidavits,
testimony, or other evidence.
154
When the facts are contested, the plaintiff must establish the facts
that give the court jurisdiction by a preponderance of the evidence.
155
Unlike a 12(b)(6) motion
or a facial attack, allegations in the pleading are not taken as true and the court can weigh the
evidence.
156
The court has broad discretion to hear evidence should it choose to have a hearing,
and may even defer its decision on the motion in order to conduct limited discovery.
157
B. Timing
If possible, the court should resolve the outcome of a 12(b)(1) motion before it resolves
most other issues because a court lacking in subject matter jurisdiction does not have the authority
to rule on other issues.
158
The only issues that clearly come before a lack of subject matter
jurisdiction are a lack of personal jurisdiction, forum non conveniens, and discretionary transfers
152
Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
153
Fed. R. Civ. P. 15(a).
154
Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989), aff’d sub nom. Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990).
155
Id.
156
Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 423 (5th Cir. 2013).
157
See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994).
158
Id.
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27
of venue.
159
Despite that, lack of subject matter jurisdiction may be asserted at any time and is
never waived, and may even be considered for the first time on appeal.
160
C. Appeals and the Standard of Review
A plaintiff may appeal a 12(b)(1) motion that has been granted, but a defendant may not
appeal one that has been denied.
161
Generally, a dismissal for lack of subject-matter jurisdiction
is reviewed de novo.
162
However, if the court ruled on a disputed issue of fact in response to an
attack on the facts, that factual finding is reviewed for clear error.
163
VI. FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6):
FAILURE TO STATE A CLAIM
A case may be dismissed for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). A motion for failure to state a claim based on the rule challenges the sufficiency of the
plaintiff’s complaint.
164
Such a motion should be granted if the plaintiff has not alleged facts that
entitle it to relief.
165
A 12(b)(6) motion is also appropriate to respond to deficiencies in the
complaint’s statements of fact, as in when the facts alleged are speculative and do not provide the
defendant with fair notice of the claim.
166
A 12(b)(6) motion must be in writing, but a court may
also dismiss a complaint sua sponte on the same grounds as a 12(b)(6) motion.
167
A 12(b)(6)
motion may be filed any time up to a trial on the merits.
168
In granting a 12(b)(6) motion, a court
159
Id.
160
Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., 666 F.3d 932, 935 (5th Cir. 2012).
161
Hosp. House, Inc. v. Gilbert, 298 F.3d 424, 429 n.5 (5th Cir. 2002).
162
Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003).
163
Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 481 (6th Cir. 2009).
164
See Republican Party v. Martin, 980 F.2d 943, 952 (4
th
Cir.1992).
165
Fed. R. Civ. P. 12(b)(6).
166
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
167
Fed. R. Civ. P. 7; Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5
th
Cir.2006).
168
Fed. R. Civ. P. 12(h)(2); Arbaugh v. Y&H Corp., 546 U.S. 500, 507 (2006).
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can dismiss with or without prejudice, but generally dismisses without prejudice the first time the
claim has been filed and allows the plaintiff to amend its pleadings.
169
A. Burden of Proof
A court will grant a 12(b)(6) motion if the defendant shows that the complaint fails to state
a claim which is plausible on its face.
170
A claim is plausible on its face when the plaintiff pleads
facts that allow the court to draw the reasonable inference that the defendant is liable for the
pleaded claims.
171
Conclusory allegations of law, inferences unsupported by pleaded, plausible
facts, and formulaic recitations of the law will not defeat a 12(b)(6) motion.
172
An allegation is
conclusory where it is a “threadbare recital of the elements of a cause of action, supported by mere
conclusory statements.”
173
Where there are nonconclusory factual allegations, the court must treat
them as if they are true to determine whether they would entitle a plaintiff to relief, in which case
a court will deny the motion.
174
In so doing, the court must indulge all reasonable inferences in
favor of the nonmovant.
175
The Twombly/Iqbal standard is a heightened pleading standard and a lower standard for
granting a 12(b)(6) motion than the previous standard that a 12(b)(6) motion should only be
granted if the defendant proved beyond any doubt that the plaintiff could prove no facts that would
entitle him to relief.
176
Practice Tip: It can be difficult to determine what makes facts plausible as opposed to not
plausible, especially since a court is not supposed to rule based simply on a judge’s disbelief of
the claims. However, the more specific and logical the facts, the better.
169
Curley v. Perry, 246 F.3d 1278, 1281-82 (10
th
Cir.2001).
170
Iqbal, 556 U.S. at 678.
171
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007).
172
Iqbal, 556 U.S. at 678.
173
Id.
174
Id.
175
Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014); Kirkcaldy v. Richmond Cty. Bd. of Educ., 212
F.R.D. 289, 294 (M.D.N.C. 2002).
176
See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984)
The Nuts and Bolts of Dispositive Motions Chapter 4
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B. A Seminal Case: Ashcroft v. Iqbal
One of two seminal 12(b)(6) cases (the other being Bell Atlantic v. Twombly), Aschcroft v.
Iqbal is especially relevant to government practice as it involved a claim alleging civil rights
violations by officers at the highest level of the executive branch.
177
The plaintiff alleged that the
defendants, Robert Mueller, head of the FBI, and Attorney General John Ashcroft, had violated
his First and Fifth Amendment rights by implementing a policy that allegedly targeted Muslims
based on their religion, resulting in the plaintiff’s incarceration and wrongful treatment in the
aftermath of the 9-11 attacks.
178
Existing law made clear that the defendants would only be liable
if they acted with a discriminatory purpose.
179
Applying Twombly, the Supreme Court ruled that
allegations describing the plaintiff’s wrongful treatment by government employees and describing
the policy enacted by the defendants were not enough, because those facts, taken as true, would
not show discriminatory intent where there were legitimate nondiscriminatory explanations for
implementing the policy, namely ensuring the security of the United States in the aftermath of 9-
11.
180
C. Evidence
Generally, no evidence is allowed in a hearing on a 12(b)(6) motion; the court must decide
the motion solely by the content of the plaintiff’s complaint.
181
If evidence is considered, then the
claim becomes one for summary judgment.
182
However, courts may consider documents attached
or incorporated by reference into the complaint, or those documents “solely” relied on and integral
to the complaint.
183
177
Iqbal, 556 U.S. at 669.
178
Id.
179
Id. at 676.
180
Id. at 677, 687.
181
Speaker v. U.S. Dept. of H&HS Ctrs. For Disease Control & Prevention, 623 F.3d 1371, 1379 (11
th
Cir. 2010).
182
Fed. R. Civ. P. 12(d).
183
See Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011); Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).
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D. Response
A typical response should emphasize that the court must assume all material facts alleged
are true, and demonstrate how the complaint provides fair notice and shows a plausible claim for
relief.
184
There is no deadline under the federal rules for filing a response. However, a better
response might be to amend the complaint to address the alleged deficiencies. A Plaintiff may
only amend once “as a matter of course” within twenty-one days after the defendant’s answer or
the 12(b)(6) motion is served, whichever is earlier.
185
If leave is necessary to amend, a plaintiff
should file a response that asks for leave to amend.
E. Standard of Review
A defendant generally cannot appeal a trial court’s denial of a Rule 12(b)(6) motion.
186
There is a limited exception where a judge states in the order that the opinion involves a controlling
question of law as to which there is substantial ground for difference of opinion and an immediate
appeal may advance the termination of the litigation.
187
On the other hand, a plaintiff can
immediately appeal an order granting a motion 12(b)(6) which is to be expected given that such
an order is a final decision on some or all of a plaintiff’s claims.
188
Courts of appeals review a
district court’s order granting a 12(b)(6) motion de novo.
189
F. Examples of successful 12(b)(6) motions:
• The defendant was entitled to municipal immunity under state law.
190
184
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555-56.
185
Fed. R. Civ. P. 15(a). Note that there may also be a deadline to amend in the local rules.
186
Jackson v. City of Atlanta, Tex., 73 F.3d 60, 62 (5th Cir. 1996).
187
28 U.S.C.A. § 1292.
188
See, e.g., Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 527 (5th Cir. 1996).
189
Id.
190
Carter v. Cornwell, 983 F.2d 52, 54-55 (6
th
Cir. 1993).
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31
• The complaint did not allege specific instances of discrimination, but discrimination
generally.
191
• The complaint alleged fraud but did not allege a false or misleading act by defendant.
192
• The complaint alleged facts that were not plausible, because they were clearly contradicted
by a promissory note referred to in the complaint whose veracity was not contested.
193
VII. FEDERAL MOTIONS FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56 governs summary judgments in Federal Court. Like the
state version, the rule states that a court “shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”
194
A federal motion for summary judgment is a creature of written motions, even
more so than a state motion for summary judgment. Oral hearings for summary judgment motions
are not required and rarely granted.
195
A. Timing
The only timing requirement of a federal motion for summary judgment is that it must be
filed within thirty days after the close of discovery unless local rules or a scheduling order state
otherwise.
196
Unlike the state rule, there is no specific time by which motions must be served on
the opposing party.
197
Courts are generally permitted to rule on summary judgment motions
without giving the parties notice that the court will decide the motion by a certain date.
198
However,
191
Coyne v. City of Somerville, 972 F.2d 440, 442-445 (1
st
Cir. 1992).
192
Royal Bus. Grp. V. Realist, Inc., 933 F.2d 1056, 1065-66 (1
st
Cir. 1991).
193
Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013).
194
FED. R. CIV. P. 56(a).
195
Hittner & Liberato, supra note 102, at 935; See FED. R. CIV. P. 56.
196
FED. R. CIV. P. 56(b).
197
Hittner & Liberato, supra note 102, at 935; See FED. R. CIV. P. 56.
198
Hall v. Smith, 497 F. App’x 366, 374 (5th Cir. 2012) (per curiam) (quoting Daniels v. Morris, 746 F.2d 271, 275
(5th Cir. 1984)).
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courts must give notice if they intend to make a summary judgment decision sua sponte.
199
The
Federal rules do not provide a deadline to respond; local rules and scheduling orders determine the
date by which responses and replies must be filed.
200
B. Discovery and Evidence
To move for summary judgment when it bears the burden of proof, a party should begin
by identifying each claim or defense on which summary judgment is sought.
201
To win summary
judgment, the movant must demonstrate by admissible evidence that there is no genuine dispute
as to any material fact concerning each element of its claim for relief.
202
As the defendant has the
burden of proof on affirmative defenses, a plaintiff may win summary judgment on the defense by
demonstrating the absence of evidence on an affirmative defense.
203
When a movant files for summary judgment on a claim for which it does not have the
burden of proof, it bears the burden to demonstrate the absence of a genuine dispute as to any
material fact on the adverse party’s claim.
204
The moving party cannot rely on conclusory
199
Atkins v. Salazar, 677 F.3d 667, 678 (5th Cir. 2011).
200
FED. R. CIV. P. 56 advisory committee’s note to the 2010 amendments; See N. DIST. TEX. LOCAL R. 7.1(f)
(“Unless otherwise directed by the presiding judge, a party who has filed an opposed motion may file a reply brief
within 14 days from the date the response is filed.”).
201
FED. R. CIV. P. 56(a). Among the 2010 amendments to Rule 56 was the explicit clarification that a party may
request summary judgment as to part of a claim or defense. See id. (“A party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought.”
(emphasis added)).
202
Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Ruby Robinson Co. v. Kalil Fresh Mktg., Inc.,
No. H-08-199, 2010 WL 3701579, at *3-4 (S.D. Tex. Sept. 16, 2010) (granting summary judgment to an intervenor
in an action under the Perishable Agricultural Commodities Act upon the finding by the court that, based on the
submitted evidence, two individual defendants were shareholders, directors, and officers of a company in default and
exercised sufficient control over the company to justify individual liability for failure to maintain trust assets).
203
See id.
204
FED. R. CIV. P. 56(a); Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544 (5th Cir. 2005) (“On summary judgment,
the moving party is not required to present evidence proving the absence of a material fact issue; rather, the moving
party may meet its burden by simply ‘pointing to an absence of evidence to support the nonmoving party’s case.”’
(quoting Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003))); see also Chambers v. Sears
Roebuck & Co., 428 F. App’x 400, 407 (5th Cir. 2011) (per curiam) (“The moving party...need not negate the elements
of the non-movant’s case. The moving party may meet its burden by pointing out the absence of evidence supporting
the nonmoving party’s case.” (citation omitted) (internal quotation marks omitted)). This burden can be particularly
difficult in certain kinds of cases. For example, “[s]ummary judgment is rarely appropriate in negligence and products
The Nuts and Bolts of Dispositive Motions Chapter 4
33
statements but must instead specifically show the absence of evidence showing a genuine
dispute.
205
If a nonmovant shows by affidavit or declaration specific reasons that it has not had
sufficient time to present essential facts to respond to a summary judgment motion, a court has
broad authority to fashion the appropriate relief necessary.
206
Failure by a respondent to do so
could waive a prematurity argument on appeal.
207
The Fifth Circuit has commented that “a
continuance of a motion for summary judgment for purposes of discovery should be granted almost
as a matter of course,” but a party must still show specific facts in support of its motion for
continuance.
208
“If a party fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact . . . the court may . . . consider the fact undisputed for purposes of the
motion [or] grant summary judgment.”
209
However, a district court may not grant a summary
judgment motion simply because the opposing party failed to respond.
210
liability cases, even if the material facts are not in dispute.” Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir.
1992).
205
St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 (5th Cir. 2000).
206
FED. R. CIV. P. 56(d); see also Bradley Scott Shannon, Why Denials of Summary Judgment Should Be Appealable,
80 TENN. L. REV. 45, 57 (2012) (“[S]ubdivision [56(d)] virtually assures that a plaintiff will get the time necessary
to amass the information that she needs to avoid an adverse ruling....”). A district court’s denial of a Rule 56(d) motion
is reviewed on appeal for abuse of discretion. Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (per curiam).
207
Carner v. La. Health Serv. & Indem. Co., 442 F. App’x 957, 961 (5th Cir. 2011) (per curiam) (“We have stated
that our court has foreclosed a party’s contention on appeal that it had inadequate time to marshal evidence to defend
against summary judgment when the party did not seek Rule 56(f) [now rule 56(d)] relief before the summary
judgment ruling. As [appellant] failed to raise this issue before the district court, the issue has been waived.” (first
alteration in original) (citations omitted) (internal quotation marks omitted)); Tate v. Starks, 444 F. App’x 720, 730 &
n.12 (5th Cir. 2011) (Smith, J., dissenting).
208
Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 963 (5th Cir. 2009); But see Martins v. BAC
Home Loans Servicing, L.P., 722 F.3d 249, 257 (5th Cir. 2013) (affirming the district court’s denial of a motion for
continuance that was filed late and that failed to state specific facts in support); Am. Family Life Assurance Co. of
Columbus v. Biles, 714 F.3d 887, 893-95 (5th Cir. 2013) (per curiam) (evaluating the sufficiency of the purported
discovery-- a deposition--to conclude that the district court’s denial was not an abuse of discretion, given that the
deposition would not have influenced the outcome of the case).
209
FED. R. CIV. P. 56(e)(2), (3).
210
Bustos v. Martini Club, Inc., 599 F.3d 458, 468 (5th Cir. 2010).
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34
The quantum of proof for evidence at summary judgment is the same as the quantum of
proof required at trial. For example, if a plaintiff must prove a fact by clear and convincing
evidence, then a court must grant a motion for summary judgment unless the plaintiff has
introduced evidence that would allow a reasonable jury to find by clear and convincing evidence
that the disputed fact exists.
211
In deciding whether to grant summary judgment, the court views
all evidence in the light most favorable to the nonmoving party and draws all reasonable inferences
in favor of the nonmoving party.
212
Practice Tip: The seminal cases for federal summary judgment are Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) and it is worth refreshing your memory
of them before writing a summary judgment motion.
C. Response
If the movant satisfies its initial burden, the burden shifts to the respondent to avoid
summary judgment by coming forward with specific facts to show that there is a genuine dispute
for trial.
213
To show a genuine issue of material fact so as to defeat summary judgment it is not enough
that “there is some metaphysical doubt as to the material facts.”
214
Instead, the respondent must
show that “the record taken as a whole could . . . lead a rational trier of fact to find for the non-
moving party.”
215
“[S]ummary judgment will not [be granted] if the dispute about a material fact
is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the
211
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
212
Homoki v. Conversion Servs., Inc., 717 F.3d 388, 395 (5th Cir. 2013).
213
Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir. 2012) (“Once the movant carries [its] burden, the
burden shifts to the nonmovant to show that summary judgment should not be granted.”);
214
Id. at 586.
215
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Nuts and Bolts of Dispositive Motions Chapter 4
35
nonmoving party.”
216
Further, the less plausible the claim, the stronger the evidence required to
overcome summary judgment.
217
A genuine dispute as to any material fact necessary to defeat summary judgment cannot be
established by allegations contained in the respondents pleadings but must be established by
evidence such as, documents, depositions, affidavits, and answers to interrogatories.
218
A response
may consist of: admissible summary judgment evidence;
219
a memorandum of points and
authorities;
220
objections to the movant’s evidence;
221
and a request for more time for discovery,
if appropriate.
222
In lieu of submitting evidence, a respondent may rely on evidence submitted by
the movant.
223
A respondent cannot simply rely on evidence in the record to avoid summary
judgment but must “articulate the precise manner in which the submitted or identified evidence
supports his or her claim.”
224
D. Appeals
The denial of a motion for summary judgment is ordinarily not appealable.
225
Instead, a
party whose summary judgment motion was denied must generally wait to appeal until after a
216
Anderson, 477 U.S. at 248; Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013); R & L Inv. Prop., L.L.C. v.
Hamm, 715 F.3d 145, 149 (5th Cir. 2013).
217
Id.
218
Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010); Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 264-65
(5th Cir. 2002); FED. R. CIV. P. 56(c)(1)(A).
219
FED. R. CIV. P. 56(c)(2); see also Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 692 (5th Cir.
2011) (stating that hearsay evidence cannot create a genuine dispute of material fact to avoid summary judgment). But
see Crostley v. Lamar Cnty., Tex., 717 F.3d 410, 423-24 (5th Cir. 2013) (providing that hearsay statements can be
considered by a court when ruling on qualified immunity-based summary judgment motions grounded in whether
probable cause existed).
220
See, e.g., S. DIST. TEX. LOCAL R. 7.1(B) (requiring opposed motions to be accompanied by authority).
221
FED. R. CIV. P. 56(c)(2); see also Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671 F.3d 512,
515 (5th Cir. 2012) (observing that objections under Rule 56(c)(2) have replaced the necessity of filing independent
motions to strike).
222
FED. R. CIV. P. 56(d); see also supra Part 2.I.D (elaborating on Rule 56(d)).
223
Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004) (directing the nonmovant to point
out “the precise manner in which the submitted or identified evidence supports his or her claim”); Isquith ex rel.
Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 199-200 (5th Cir. 1988).
224
CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 273 (5th Cir. 2009).
225
Hogan v. Cunningham, 722 F.3d 725, 730 (5th Cir. 2013).
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36
court has entered a judgment after a trial on the merits.
226
Exceptions exist where the trial court
was ruling on two competing motions for summary judgment, or where the trial court certifies the
summary judgment for permissive appeal.
227
A grant of a motion for summary judgment is appealable, and is reviewed de novo.
228
On
those occasions where an appellate court has a chance to review the denial of a motion for summary
judgment, it may review whether a fact is material, but not whether the fact is genuine.
229
An
appellate court can affirm a summary judgment that was granted on incorrect grounds if it finds
separate grounds to grant summary judgment.
230
However, it can generally only do so on the
factual record before the trial court.
231
E. State Motions Compared to Federal Ones
Given the similarities between summary judgments at the state and federal level, it can be
useful to highlight the major differences between the two. Summary judgments may be granted
sua sponte at the federal level, but not at the state level. It follows that a federal court may grant a
summary judgment on grounds not stated in the motion for summary judgment at the federal level,
but not at the state level. Thus, a federal court may simply rule on a motion, without giving a
notice of intention to rule as is required at the state level.
226
See 28 U.S.C.A. § 1291.
227
See Dore Energy Corp. v. Prospective Inv. & Trading Co., 570 F.3d 219, 224 (5th Cir. 2009);
228
Miller v. Gorski Wladyslaw Estate, 547 F.3d 273, 277 (5th Cir. 2008).
229
Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004).
230
Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014).
231
Id.
