Legal Memorandum: Filing Deadlines for Summary Judgment Motions

Issue: Under federal law applied in Minnesota, how is the deadline to apply to file a supplemental affidavit in federal district court in a summary judgment motion determined?

The authorities reviewed suggest that, although there is no real “deadline” for filing affidavits in support of a summary judgment motion, there may be grounds to contest the admission of the Supplemental Witness affidavit.

Local Rule 7.1 for the U.S. District Court, District of Minnesota, sets forth the filing deadlines applicable to summary judgment motions.  That rule provides that, for all dispositive motions, the moving party may provide affidavits with its moving papers and initial memorandum of law, all of which must be filed and served 42 days before the date of the hearing.  U.S. Dist Ct. Rules, D. Minn, L.R. 7.1(c)(1)(A).  The responding party may serve and file its responsive memorandum and affidavits within 21 days after the moving party serves and files its papers.  Id. at R. 7.1(c)(2).  While the Rule also allows for a reply memorandum from the moving party within 14 days after the non-movant’s response, this provision does not mention the inclusion of affidavits at that point.  See id. at R. 7.1(c)(3).  That is, “[a]lthough the rule makes provision for a Reply Memorandum, it neither permits nor prohibits the moving party from filing affidavits or other factual materials therewith.”  Id., 1999 Advisory Committee’s Note to L.R. 7.1(b)(2) [now 7.1(c)(2)].  The Note goes on to explain that

[t]he rule contemplates that the discovery record will allow the initial summary judgment submission to anticipate and address the responding party’s factual claims.  Reply affidavits are appropriate only when necessary to address […]

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