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Last updated November 22 , 2009

Motion for Summary Judgment

Motions for summary judgment ("MSJ") 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. An MSJ can end the process so you need to take it seriously.

Summary judgments are tricky but not impossible. When the other side answers the complaint 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 adhere to these rules or it may be rejected. A lot of courts have a twenty page limit for motions for summary judgment, and 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.

A motion for summary judgment is as serious as a heart attack and should be treated as such. The non-movig party cannot rely upon statements made in the complaint (or answer) as a defense. Allegations and emotionalism will not defeat an MSJ. Like Sergeant Joe Friday would say, "Just the facts." You must refute every claim made against you and you need to do it with an affidavit or physical proof. Simply making a statement that the other side is lying will not be enough.

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. These pages are not a complete analysis of everything that can happen. These are intended a guide and starting point. Always consult competent legal help.

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