Utah Bar Journal

THE REQUIREMENTS OF RULE 7
Rule 7 requires a memorandum supporting a motion for summary judgment to set forth facts the movant claims are undisputed in separate numbered paragraphs with references to the record. See Utah R. Civ. P. 7(c)(3)(A). An opposition memorandum must include a verbatim restatement of any disputed facts with an explanation of the dispute, supported by citations to the record. See Utah R. Civ. P. 7(c)(3)(B). If parties do not controvert facts in this fashion, rule 7 makes clear that they are deemed admitted for purposes of summary judgment. See Utah R. Civ. P. 7(c)(3)(A).

Rule 7’s procedural requirements were formerly in Utah Rule of Judicial Administration 4‑501(2)(A) and (B). Rule 4-501 was repealed November 1, 2003, and the procedures for summary judgment were moved to rule 7. The Rules of Judicial Administration were intended to make Utah’s judicial system more efficient and transparent. See Chief Justice Gorden R. Hall, Utah Code of Jud. Admin., Oct. 1988, (v). Rule 4-501(2)(B), which is now rule 7(c)(3)(B), created a precise means for trial judges and reviewing courts to decide whether genuine issues of material fact precluded summary judgment. In 2001 the rule was substantially amended and the “verbatim restatement” requirement became a part of the rule. Amendment Notes, Utah R. Jud. Admin. 4-501 (2002). Both versions of the rule established a bright-line: controvert the facts appropriately or they will be deemed admitted.

UTAH APPELLATE COURTS ON THE CONSEQUENCES OF A FAILURE TO COMPLY WITH RULE 7
Rule 7 clearly sets forth the consequences of a failure to controvert facts with citations to the record, yet certain decisions from Utah’s appellate courts have made a trial court’s discretion to admit those facts far less clear. Trial courts traditionally had discretion to deem such uncontroverted facts admitted, but after the Utah Supreme Court’s decision in Salt Lake County v. Metro West Ready Mix, Inc. (Metro West), 2004 UT 23, 89 P.3d 155, the extent of that discretion was questioned. The Utah Court of Appeals has questioned the meaning of the Metro West decision and expanded it through several cases addressing the consequences of a party’s failure to comply with rule 4-501 or rule 7.

Utah Trial Courts Traditionally Had Discretion to Deem Facts Admitted
Before Metro West, Utah’s trial courts clearly had discretion to deem facts admitted for noncompliance with rule 4-501. Both of Utah’s appellate courts affirmed the trial court’s decision to deem facts admitted and grant summary judgment for failure to comply with 4-501. See Fennell v. Green, 2003 UT App 291, ¶ 8, 77 P.3d 339 (citing Lovendahl v. Jordan School District, 2002 UT 130, 63 P.3d 705). The Utah Court of Appeals upheld the rule and its requirements:

[A] trial court may exercise its discretion to require compliance with the Rules of Judicial Administration, particularly rule 4‑501, without impairing a party’s substantive rights. In this case, we do not believe the court abused its discretion in requiring compliance with rule 4‑501 and thus ruling that the facts, as stated in Defendants’ motions and supporting memoranda, were deemed admitted.

2003 UT App 291, ¶ 9. The Lovendahl and Fennell cases affirmed the rule and a trial court’s discretion to require compliance with the rule.

How Metro West Changed a Trial Court’s Discretion to Deem Facts Admitted for Non-Compliance with Rule 7.
A footnote in Metro West arguably limited a trial court’s discretion to require compliance with the rule or deem facts admitted. In Metro West the trial court granted summary judgment and the Utah Court of Appeals affirmed. 2002 UT App 257, ¶ 17, 53 P.3d 499. The Utah Supreme Court then reversed the summary judgment. Metro West, 2004 UT 23, ¶ 28. In a footnote, Justice Durrant found:

Metro West asserts that the County’s failure to set forth in its opposing memorandum ‘a statement of facts it claims are in dispute as [required by] rule 4‑501(2)(B) of the Utah Code of Judicial Administration’ should result in our finding that Metro West’s facts ‘be deemed admitted for purposes of summary judgment and this appeal.’ It is true that the County’s opposing memorandum did not set forth disputed facts listed in numbered sentences in a separate section as required by the Utah Rules of Judicial Administration. See Utah R. Jud. Admin. 4‑501(2)(B). However, given that the disputed facts were clearly provided in the body of the memorandum with applicable record references, we find the failure to comply with the technical requirements of rule 4‑501(2)(B) to be harmless in this case. See Hall v. NACM Intermountain, Inc., 1999 UT 97, ¶¶ 19‑21, 988 P.2d 942 (noting the failure to specifically set forth a legal basis for the award of attorney fees in compliance with rule 4‑505 of the Utah Code of Judicial Administration was a harmless error because the court and both counsel always knew the purpose behind and the basis for the proposed award of fees)…

Id. ¶ 23 n.4 (emphasis added). This language prompted several subsequent decisions by the Utah Court of Appeals questioning whether Metro West changed the clear mandate of rule 7 and the trial court’s discretion to enforce it. However, before addressing the Court of Appeals’ interpretation of this language, it is important to consider the context of the trial court’s decision in Metro West. This context makes it clear that the footnote was not intended to limit the discretion of trial courts.

The case began in the Third District Court, where the trial court issued a two-page ruling granting the moving party’s motion for summary judgment on the merits. Salt Lake County v. Metro West Ready Mix, Inc., Case No. 990901915, 1999. The first and most important thing to understand about Metro West is that the Utah Supreme Court did not reverse the trial judge for deeming facts admitted because the opposing party failed to comply with rule 4-501(2)(B). See Metro West, 2004 UT 23, ¶ 23. The trial judge did not even refer to rule 4-501 in the order. See generally Metro West, Case No. 990901915. The decision of the Court of Appeals, affirming the trial court’s summary judgment, also makes no mention of a violation of rule 4-501. See generally 2002 UT App 257. Rather, the Court of Appeals determined, “[t]he dispositive issue on appeal is whether the trial court correctly granted Metro’s motion for summary judgment, holding that Metro is a BFP meriting protection under the Recording Statute even though the Tingeys never had legal title” and not whether the facts were properly deemed admitted under rule 4-501. Id. ¶ 5. In subsequent proceedings before the Utah Supreme Court, there was only a single short mention of rule 4-501 in the entire briefing to that court. In what comes across as a side note in its brief, Metro West Ready Mix mentions: “In support of its motion for summary judgment, Metro West set forth several numbered paragraphs of undisputed fact. The county did not dispute any of Metro West’s facts as required by Rule 4-501(2)(b) of the Utah Code of Judicial Administration.”

Brief of Defendant-Appellee, at 24, Salt Lake County v. Metro West Ready Mix, Inc., 2004 UT 23 (No. 20020701). This suggests an understanding that the rule is discretionary, and seems to say to the Utah Supreme Court, “even if you disagree with us on the merits, you can affirm the summary judgment because of Salt Lake County’s failure to comply with rule 4-501.” Rule 4-501 was clearly not the focus of their claim, and neither party, nor the Utah Supreme Court, referred to rule 4-501 at oral argument. See Transcript of Oral Argument, Salt Lake County v. Metro West Ready Mix, Inc., 2004 UT 23 (No. 20020701). This consideration of the entire record casts Metro West in a very different light than if the trial judge had been reversed for requiring strict compliance with rules 7(c)(3)(B) or 4-501(2)(B).

The Utah Court of Appeals Interprets Metro West to Require a Harmless Non-Compliance Test for Trial Courts to Deem Facts Admitted.
In cases decided after Metro West, the Utah Court of Appeals has seemingly interpreted the case as if the Utah Supreme Court reversed the trial court for deeming facts admitted for a violation of rule 4-501(2)(B). For example, in Gary Porter Construction v. Fox Construction, 2004 UT App. 354, 101 P.3d 371, the Utah Court of Appeals determined that the trial court had not abused its discretion to deem facts admitted under Fennell and Lovendahl because the opposing party did not properly controvert the facts, but it had abused its discretion after Metro West because those facts were controverted in other parts of the briefs with citations to the record. See id. ¶ 15. The Court of Appeals affirmed the trial court, because the “additional facts” – found in the briefing with citations to the record – still did not raise genuine issues of material fact. Id. ¶ 22. In a footnote, the Utah Court of Appeals addresses its dissatisfaction with the Metro West rule:

Although we are bound by the Utah Supreme Court’s most recent interpretation of rule 4‑501(2)(B), we respectfully note that the rule announced by the court leaves it unclear what remedies are available to trial courts for a party’s failure to follow the procedure outlined in rule 4‑501(2)(B).…If compliance with former‑rule 4‑501(2)(B)…is anything other than a mere suggestion, then it seems that a trial court must have the discretion to grant summary judgment in instances where it would not otherwise be sanctioned by rule 56(c) alone. In other words, if failure to comply with the rule is ‘harmless’ as long as a disputed fact can be gleaned from the opposition papers, then the rule would seem to add nothing to what rule 56 already requires.

Id. ¶ 15 n.2 (internal citation omitted). The Court of Appeals continued, stating “it currently is unclear whether granting summary judgment, because facts are admitted as undisputed that otherwise would not have been, is ever within the trial court’s discretion for failure to comply with the rule” and asked “the Utah Supreme Court to clarify the scope of remedies under rule 7(c)(3)(B) to guide trial courts.” Id. This pointed footnote suggests the Utah Court of Appeals’ dissatisfaction with Metro West and its view that Metro West created uncertainty about the effect of noncompliance with the rule. The Utah Supreme Court did not immediately respond to this footnote, and the Utah Court of Appeals has continued to interpret Metro West to limit trial courts’ discretion without actually reversing them.

In 2005, the Utah Supreme Court addressed the effects of a failure to comply with rule 4-501 in a footnote in Anderson Development Co. v. Tobias, 2005 UT 36, 116 P.3d 323, noting:

[D]istrict courts have “discretion in requiring compliance with rule 4‑501.” Gary Porter Constr. v. Fox Constr., Inc., 2004 UT App 354, ¶ 10, 101 P.3d 371 (quoting Fennell v. Green, 2003 UT App 291, ¶ 9, 77 P.3d 339). While the district court could have granted [Appellant’s]…motion for summary judgment on the basis of [Appellee’s]… noncompliance with rule 4‑501, it exercised its discretion to address the motion on its merits, and we are unpersuaded that doing so constituted an abuse of that discretion.

Id. ¶ 21 n.3. Anderson was, in part, an interlocutory appeal from a decision denying a motion for summary judgment. See id. ¶¶ 1, 16. Anderson parallels Metro West because in both cases, despite a technical failure to comply with rule 4-501, the trial court considered the merits of an opposition to summary judgment and was upheld on appeal. The Utah Supreme Court also considered the merits of the motion for summary judgment, despite clear violations of rule 4-501, and did not deem facts admitted in either case.

In several cases decided after Anderson, the Utah Court of Appeals continued to apply the harmless noncompliance rule it extrapolated from Metro West, but declined to use it to reverse trial courts for an abuse of discretion. See e.g. Utah Local Gov’t Trust v. Wheeler Mach. Co., 2006 UT App 513, 154 P.3d 175. In Wheeler, the trial court did not deem facts admitted based on a violation of rule 7, but rather on its view that the material opposing the motion for summary judgment did not comply with rule 56(e). Id. ¶ 7. The trial court in Wheeler had “noted its hesitation in granting summary judgment based on noncompliance with rules 7 and 56 of the Utah Rules of Civil Procedure, stating that appellate courts do not always enforce these rules.” Id. ¶ 7 n.4. While the Wheeler Court “sympathize[d] with the trial court’s frustration…[it] determine[d] that summary judgment was inappropriate because the City did produce sufficient admissible evidence to demonstrate the existence of genuine issues of material fact.” Id. ¶ 7 n.5. The Court of Appeals also addressed the confusion raised by Metro West, stating, “[w]e recognize that the Utah Supreme Court has, using harmless error analysis, reversed a summary judgment that was based on noncompliance with the technical requirements of rule 7.” Id. (citing Metro West, 2004 UT 23, ¶ 23 n.4). However, as discussed above, the Metro West trial court was not reversed for granting summary judgment based on deeming facts admitted for noncompliance with rule 7.

In two other cases decided after Metro West, the Utah Court of Appeals found a party’s noncompliance enough to affirm the trial court’s summary judgment on facts deemed admitted. See Bluffdale City v. Smith, 2007 UT App 25, ¶ 11, 156 P.3d 175; Johnson v. Dept. of Transportation, 2004 UT App 284, ¶ 7 n. 2, 98 P.3d 773. In Bluffdale, the Court of Appeals made patent its belief that Metro West imposed an additional requirement on trial courts’ discretion, when it stated, “we must determine whether the trial court abused its discretion in admitting as uncontroverted the facts submitted by Plaintiff in support of its request for summary judgment, which were not addressed by Defendants in accordance with rule 7(c)(3)(B).” 2007 UT App 25, ¶ 7. The court affirmed the trial court’s decision but noted, “[e]ven had we determined that Defendants substantially complied with rule 7(c)(3)(B), we would still affirm the district court’s order granting summary judgment on the alternate ground of unjust enrichment.” Id. ¶ 11 n.2. These cases illustrate the Utah Court of Appeals’ belief that Metro West changed trial courts’ broad discretion to deem facts admitted under rule 7, and that court’s reluctance to apply its interpretation of Metro West to reverse trial courts.

This review of the Court of Appeals’ decisions on rules 4-501 and 7 demonstrates that a party before that court may fail to comply with the procedural requirements of rule 7, and still avoid having facts admitted against them. The Utah Supreme Court, however, has affirmed a trial court’s broad discretion to deem facts admitted for a failure to comply with rule 7.

A trial court or litigant before that court may be asking what to make of these somewhat confusing decisions. Here are some facts that may help both:

1. No Utah trial court has ever been reversed for granting summary judgment based upon facts deemed admitted for failure to comply with rule 7.

2. The Utah Supreme Court has consistently affirmed the trial court’s discretion to require strict compliance with rule 7.

3. The Utah Court of Appeals has interpreted Metro West to limit trial courts’ discretion to strictly enforce rule 7. However, that court has also expressed hostility to the rule it extrapolated from Metro West and has never reversed a trial court for deeming facts admitted for violating rule 7.

4. If a trial judge waives strict compliance with rule 7 and entertains the merits of a summary judgment motion, appellate courts are likely to also waive the violations of rule 7 and consider the merits of the motion.

5. Trial courts may consider a harmless noncompliance test to support their decision to deem facts admitted, but even without this test, a trial court has discretion to rigorously apply rule 7.

HOW UTAH ATTORNEYS CAN AVOID PITFALLS AND SUCCEED IN SUMMARY JUDGMENT PRACTICE
Utah attorneys have become adept at avoiding the clear intent of rule 7 and summary judgment. Summary judgment is a process intended to distill the facts; for summary judgment to be appropriate there must be no genuine dispute of material facts and the undisputed facts must entitle the moving party to judgment as a matter of law. See Utah R. Civ. P. 56(c). Yet attorneys regularly file statements of uncontroverted facts that are longer than necessary, use undisputed facts to tell complex narratives rather than distill the issues to those relevant to judgment as a matter of law, and fill memoranda with disingenuous disputes of facts.

To ease the burden on Utah’s trial courts, decrease the expense of summary judgment motions for all parties, reform wasteful practices, and conform summary judgment motions to the clear purpose of the rule, attorneys should consider the following when moving for or opposing summary judgment:

Statements of Undisputed Material Facts Should Set Forth Only Material and Critical Facts.
Statements of fact in motions for summary judgment are often excessive and replete with facts that are either irrelevant or immaterial to the question of law on summary judgment. On summary judgment, a moving party’s job is to simplify the case to its core undisputed issues. There must be no dispute of material fact, which does not mean a party should include every single, undisputed fact. Elaborate statements of facts or narratives told through such facts are wasteful and distract from the relevance of critical facts. Further, the more facts a party sets forth, the greater the opposing party’s opportunity is to dispute those facts. Limit statements of fact to the critical issues that are truly undisputed. Simple and concise statements of core material facts are all a party should include when moving for summary judgment.

Problematic summary judgment motions are also present at the federal level, where neither Federal Rule of Civil Procedure 7 nor Federal Rule 56 contain the requirements that Utah’s Rule 7 does. Instead, it is a matter of local discretion whether to require a separate statement of undisputed facts. The Federal Judicial Center is considering amending Federal Rule of Civil Procedure 56 to require a statement of undisputed facts to accompany motions for summary judgment.1

The proposed amendment would require a moving party to “state in separately numbered paragraphs only those material facts that the movant asserts are not genuinely in dispute and entitle the movant to judgment as a matter of law” and an opposing party would have to separately address those facts.2 The proposed amendment makes clear that the intent of a separate statement is to identify those facts critical to the case. New York’s federal courts have such a requirement and the courts interpreting it have stressed that the purpose of a separate statement of undisputed facts is to “streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001)(emphasis added).

If a fact is not necessary to the court’s decision, it should not be included in a statement of core undisputed facts. Undisputed facts should closely follow the specific elements of a claim or defense. If a string of narrative facts is necessary to make a position clear, express it as a narrative in a separate section of the memorandum. Separate numbered paragraphs are, in any event, a poor vehicle for writing a compelling narrative.

Opposing Parties Should Not Obfuscate Facts for the Sake of Obfuscation.
Again, the purpose of a summary judgment motion is to focus the litigation on the disputed issues that a trier of fact needs to resolve. When a party opposes summary judgment by introducing disingenuous and irrelevant disputes, it works as a red flag for the court. Parties should focus on the material facts, and admit when facts are undisputed. A common, but improper response to facts is “admitted but immaterial,” followed by a paragraph or two of argument as to why the fact is immaterial. Argument on the effect of a fact belongs in the argument section of a brief, if a fact is undisputed leave it at that.

The Material Cited to Show a Material Fact is Undisputed Should Clearly Show the Fact is Undisputed.
It is utterly unhelpful for a party to support a claim that a fact is either disputed or undisputed with a source in the record that does not clearly support the party’s position. Parties should ensure that supporting material is admissible and that it truly supports the undisputed nature of your facts. It does not help your case if the court must “hunt through voluminous records” in search of a supporting citation that does not say what the party claims it does. That is a red flag to the court and undermines the credibility of your entire position.

CONCLUSION
The conclusion is simple: when moving for or opposing summary judgment, follow the clear procedural rules and consider the purpose of summary judgment. Think in terms of rifle shots, not shotgun blasts. When simplicity and clarity become the hallmark of all summary judgment pleadings, trial courts will rarely have to use our discretion to deem facts admitted for a failure to comply with rule 7. Until that day, our discretion remains broad and trial courts should not hesitate to use it.

1. Thomas E. Zehnle, FJC Weighs Changes to Summary Judgment Rule: Moving Parties in all Federal Courts May Soon Have to File a Statement of Uncontested Material Facts, A.B.A. Litigation News, at 4, Vol. 33, No. 4, May 2008, available at http://www.abanet.org/litigation/litigationnews/2008/june/0608_article_fjc.html.

2. Joe Cecil & George Cort, Initial Report on Summary Judgment Practice Across Districts with Variations in Local Rules, at 1, Nov. 2, 2007, available at http://www.fjc.gov/public/pdf.nsf/lookup/insumjre.pdf/$file/insumjre.pdf.