Standing Order on Motions for Summary Judgment

            1. It’s Time To Put The “Summary” Back In “Summary Judgment”

At the risk of sounding like Jerry Seinfeld, did you ever notice that procedures allegedly designed to streamline litigation often don’t?  (Think requests to admit under Federal Rule of Civil Procedure 36.)  Indeed, these procedures often just generate more work for everybody—the parties and the Court—without reaching the goal of a just, speedy, and inexpensive determination of the actions.  Summary judgment motions can be like this.  First, summary judgment motions are often filed unnecessarily, without real forethought.  Second, summary judgment motions often result in satellite procedural litigation with a raft of ancillary filings.  The Court hopes that this standing order will eliminate—or at least reduce—these occurrences.  Sometimes, summary judgment motions should be filed.  The goal of this standing order is for the Court to see only those kinds of motions, keeping in mind that even denied motions were not necessarily filed unnecessarily.  To that end, at the close of fact discovery, the Magistrate Judge will refer the parties to this standing order whenever a party indicates its intent to file a summary judgment motion.

            2. Before Filing Summary Judgment Motions Let’s Talk

Summary judgment motions aren’t cheap.  Properly prepared summary judgment motions require extensive attorney time and client expense.  Filing summary judgment entails more than just throwing together that short motion at the end of the process.  Instead, summary judgment motions require an extensive memorandum.  And experience teaches that for whatever reason counsel struggle with keeping the memorandum under 15 pages.  Further, in the Northern District of Illinois, summary judgment motions also require Local Rule 56.1 statements of fact, which creates a separate significant expense. 

Unfortunately, sometimes summary judgment motions are unnecessarily filed.  As Judge Shadur noted years ago, filing summary judgment motions as a Pavlovian response to the close of fact discovery is an all too often occurrence.  Lee v. Waukegan Hosp. Corp., No. 10 CV 2956, 2012 U.S. Dist. LEXIS 36187, *2 (N.D. Ill. Mar. 19, 2012).  A careful examination of the record after discovery has closed may reveal contested factual issues making the granting of the motion impossible.  A real and thorough cost-benefit analysis should be completed before a summary judgment motion is filed.  Hon. Milton I. Shadur, From the Bench:  Trial or Tribulations (Rule 56 Style)?, Litig., 5 (Winter 2003).  Moreover, by their very nature, some actions do not lend themselves to Rule 56’s procedure.  Claims of excessive force are a prime example of actions that are far less likely to result in summary judgment.  Cyrus v. Town of Mukonago, 624 F.3d 856, 862 (7th Cir. 2010); Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005).  This is true for either side—even when there is a video recording of the incident.  Godinez v. City of Chicago, No. 16 CV 7344, 2019 U.S. Dist. LEXIS 187996 (N.D. Ill. Oct. 30, 2019).  Reasonableness is a quintessential jury question.  Becker v. City of Evansville, No. 12 CV 182, 2015 U.S. Dist. LEXIS 8414 (S.D. Ind. Jan. 26, 2015).  To avoid unnecessary summary judgment motions, it may be helpful for the Court to hold a prefiling conference.  This conference will be an informal, off-the-record discussion in chambers with lead counsel to consider whether it makes sense—economically and otherwise—to file a summary judgment motion.

So, before filing a summary judgment motion, counsel must confer and jointly submit to the Court’s proposed order inbox a date and time for the prefiling conference.  During the pandemic, these prefiling conferences will be conducted telephonically.  No written submissions should be made.  This prefiling conference is not intended to be an oral argument on the merits of the case.  Instead, any party seeking summary judgment should be prepared to identify the uncontested facts that support judgment as a matter of law in its favor.  Likewise and unsurprisingly, the opposing party should be prepared to identify whether those facts are truly contested.  If counsel don’t know what these facts are and whether they are truly contested by the time of the prefiling conference, then that’s a sign of a bigger problem. Also, don’t start writing the summary judgment motion before the prefiling conference.  Again, don’t submit anything in writing supporting or opposing summary judgment before the prefiling conference.  It won’t be read.  But rest assured, no party will ever be prevented from filing a summary judgment motion that is consistent with Federal Rule of Civil Procedure 11.  The goal of the prefiling conference is to have a careful, informed discussion of the issues before significant time and expense have been incurred.  If lead counsel believe it will be helpful for a client to be present during the prefiling conference, they are more than welcome.

Prefiling conferences should be set for either a Monday or Friday at 11:00 a.m.  The parties should submit a second choice for a date in case of a conflict with the Court’s schedule.  Once submitted, the Court will confirm the date of the conference by minute order.

            3. Filing Summary Judgment Motions: What To Exclude And Include

Summary judgment is designed to resolve an action in a summary fashion.  But, like The Trouble with Tribbles, summary judgment motions often spawn a cascade of ancillary motions that become overwhelming.

Take, for example, the timing of summary judgment motions.  Filing a summary judgment motion before the close of fact discovery can be problematic.  A deposition after the filing might elicit sworn testimony that creates a genuine issue of material fact that renders the motion meritless.  Moreover, the responding party can always file a Rule 56(d) affidavit that simply forestalls the summary judgment motion, particularly when fact discovery has not closed.  Smith v. OSF HealthCare System, 933 F.3d 859, 866 (7th Cir. 2019).  The process only gets gummed up further if the movant then contests the Rule 56(d) affidavit, which will then beget a reply brief.  And a summary judgment motion filed before the close of fact discovery also dovetails into the problem of multiple or successive motions.  It should come as no surprise that district court judges don’t like multiple or successive motions for summary judgment.  See generally 11 James Wm. Moore et al., Moore’s Federal Practice §56.121[1][a] at 56-299 (3d ed. 2019).  Certainly, sometimes successive summary judgment motions make sense and a court has discretion to allow them.  Id.  For example, a summary judgment motion for failing to exhaust administrative remedies may be appropriate before the close of all fact discovery.  (Of course, this assumes that summary judgment is even appropriate in that circumstance.  Wagoner v. Lemmon, 778 F.3d 586, 591 (7th Cir. 2015).)  The prefiling conference discussed above should hopefully resolve these issues.

Another ancillary motion in the brood is the motion for leave to file a surrreply, which are disfavored.  See Smith v. Bray, 681 F.3d 888, 903 (7th Cir. 2012).  The common argument in favor of surreplies is that a new argument (as opposed to a reply to an argument raised in the response brief) was raised for the first time.  Raising new arguments for the first time in a reply brief is dirty pool.  See Darick M. v. Berryhill, No. 17 CV 50140, 2019 U.S. Dist. LEXIS 21196, at *11 (N.D. Ill. Dec. 9, 2019).  The Court can see that practice for what it is.  There is no need to file a motion for a surreply to alert the Court to this chicanery.  Sometimes, the purported assertion that the reason for filing a surreply is to address new arguments is simply a pretext for trying to get in the last word.  That is just a different form of dirty pool. Naturally, surreplies beget requests to file “sur-surreplies.”  The Court doesn’t want to see them either. 

Ancillary filings also grow out of Local Rule 56.1 filings.  Rule 56.1 is supposed to simplify summary judgment determinations, not invite satellite litigation.  Mirza v. Dept. of Treasury ex rel. Ruben, 17 F. Supp. 2d 759, 762 (N.D. Ill. 1998) (discussing former Local Rules 12(M) and 12(N)); see also Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994) (purpose is to assist the court with a roadmap).  The most common ancillary filing relating to Local Rule 56.1 is the dreaded motion to strike.  Motions to strike are strongly disfavored. Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir. 2006) (Easterbrook, J., in chambers).  A motion to strike begets both a response and reply brief. Don’t file motions to strike. There’s a better way.  If a party believes that the other side's brief contains inaccurate facts or that the other side's Local Rule 56.1 statement contains an unsupported assertion, then the complaining party should argue that in the response or reply brief.  Indeed, motions to strike should be constrained to their limited purpose of attacking pleadings as identified in Federal Rule of Civil Procedure 12(f), which does not include Daubert challenges.  (More on those later.)  Another common ancillary motion relating to Local Rule 56.1 is the “motion to deem facts admitted.”  Don’t file those either.  They are unnecessary, and like a motion to strike, result in at least two more filings.  The Court knows that if a party does not respond or fails to respond properly to Local Rule 56.1 statements of facts that those facts are admitted.  See Farina v. Ciccone Food Prods., No. 04 CV 2383, 2005 U.S. Dist. LEXIS 9962, at *7 (N.D. Ill. May 12, 2005).  Motions to deem facts admitted are even more problematic when the moving party itself failed to comply with Local Rule 56.1.  See Blackhawk Molding Co. v. Portola Packaging, Inc., 422 F. Supp. 2d 948, 952 (N.D. Ill. 2006).  Kids these days call that a “self own.”  The required filings are plenty.  There is no need to file these additional motions, especially when they produce even more filings.

Having said all that, motions for summary judgment and responses must comply with Local Rules 56.1(a) and 56.1(b), as well as the procedures set out in this standing order.  The Local Rules and this standing order are not mere suggestions or the Court’s musings on best practices. Failure to abide by the Local Rules and this standing order may result in the Court striking briefs, disregarding statements of fact, deeming statements of fact admitted, and denying summary judgment. See Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009).  With regard to Local Rule 56.1, counsel must comply with the following:

• All statements of undisputed material facts and their responses must be filed separately from the memoranda of law and must include the line, paragraph, or page number where the supporting material may be found in the record.  You can even highlight the specific relevant portion if you think that’s helpful.  But if you end up highlighting an entire page, that might tell you something.    

• The movant shall not file more than 80 statements of undisputed material facts without prior leave of the Court.  Those statements must be limited to concise, discrete factual propositions, not paragraphs of assertions. The respondent shall be limited to 40 statements of undisputed material facts without prior leave of the Court.  These statements must similarly be limited to concise, discrete facts.

• For cases involving pro se litigants, in addition to the motion, memorandum, statement of facts, and exhibits, counsel must also serve the pro se party with (1) the statement required by Local Rule 56.2, (2) an entire copy of Local Rule 56.1, (3) a copy of Federal Rule of Civil Procedure 56, and (4) a copy of this standing order. 

The Court has one last point on the topic of Local Rule 56.1 statements of fact.  Try to tell a coherent, chronological story with the facts.  The statement of facts should not read like a Quentin Tarantino script.  And have a point: It makes it so much more interesting for the reader.

The only ancillary motions that might be appropriate with a summary judgment motion relate to expert testimony.  There are two.  The first motion is a motion in limine seeking to exclude opinion testimony under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).  Boatman v. Comcast of the South, L.P., No. 17 CV 536, 2020 U.S. Dist. LEXIS 24458, at *24 n.5 (E.D. Tenn. Feb. 12, 2020).  That is a substantive motion that should be filed separately.  Some claims require expert testimony to survive, and if the testimony does not meet the requirement of Daubert, then summary judgment will be granted.  See, e.g., Winters v. Fru-Con, Inc., 498 F.3d 734, 743-44 (7th Cir. 2007).  Motions to exclude expert opinions under Daubert should only be filed either with summary judgment briefing or at trial.  The Court is fully aware that occasionally a party will want to bar an expert’s opinion before retaining its own expert to allegedly save money.  The Court is also often told that this motion will “streamline the case.”  But see the first sentence of this standing order.  This procedure is unlikely to save time or money.  Indeed, if a party is so convinced that the opponent’s expert’s opinion is junk, then the party should be confident in its decision not to hire its own rebuttal expert.  The second motion is a motion to bar opinions not disclosed under Federal Rule of Civil Procedure 26(a)(2).  Fed. R. Civ. P. 26(a)(2)(B), (C).  Opinions appearing for the first time in summary judgment briefing will be barred, unless the proponent can establish that the failure to timely disclose the opinions is harmless or substantially justified.  Fed. R. Civ. P. 37(c)(1); Clomber v. Coop. Plus, Inc., 527 F.3d 635, 641-43 (7th Cir. 2008).  Be forewarned, that is a heavy burden to meet.  See Mannoia v. Farrow, 476 F.3d 453, 456-57 (7th Cir. 2007) (barring at summary judgment expert affidavit first disclosed in summary judgment briefing).  And, even in the rare circumstances you meet that burden, there will be other consequences, including financial.  See, e.g., Beauchamp v. City of Dixon, No. 11 CV 50121, 2014 U.S. Dist. LEXIS 29453, at *22 (N.D. Ill. Mar. 7, 2014).  Parties who believe that expert opinions were not properly disclosed under Rule 26(a)(2) should immediately file a separate motion to bar.  The Court will consider the motion at the same time as the summary judgment motion.

If parties have any other questions about summary judgment motions, they can raise them at the informal conference.