Last updated March 16, 2008

Motion for Summary Judgment

We are not lawyers nor have we received any significant assistance from any lawyers beyond our appeal to the Tenth District which we won. The information presented here is based upon our experiences in federal court defending and prosecuting claims of trademark infringement and copyright infringement. It is presented to prepare you for what lies ahead should you end up in court. This outline is for those sellers who are thinking about representing themselves, pro se, in a court action. A business cannot represent themselves in federal court but individuals and unincorporated business can.. The court rules and the federal rules are written by lawyers for lawyers. We try to put them into plain English here.

Motions for summary judgment are governed by F.R.C.P. 56. The complaining party may move for summary judgment twenty days after service. The defending party may move for summary judgment at any time. The basic standard for winning a motion for summary judgment, which is decided by the judge, is based upon the evidence submitted, whether or not the judge feels you will win at trial.

Summary judgments are tricky but not impossible. When the other side answers with deny, deny, deny, you can file a motion for summary judgment to get a feel for their defense since they didn't state it in their answer. But, be careful. If they counter-move, and their case is strong, you could end up a loser. However, we are assuming you got this far because you have a valid case and should win if it is properly argued.

Most court and judges have local rules concerning motions for summary judgment. Your motion must adher to these rules or it may be rejected. A lot of courts have a twenty page limit for motions for summary judgment, they require a paragraph of undisputed facts, etc. Learn them.

The single biggest problem you will face is the proper introduction of evidence to support your undisputed facts. When you file a complaint or answer, you have the option of attaching exhibits that act as evidence to prove what you are saying is true. In a motion for summary judgment, this evidence is introduced through a supporting affidavit (also called a declaration) in which the evidence is stated, what it represents, and it's source.