Legal Memorandum: Motion for Summary Judgment – Affidavits

Issue: Under federal law as applied in Minnesota, what are the requirements for an affidavit and its attachments filed in conjunction with a motion for summary judgment in federal district court?

Area of Law: Litigation & Procedure
Keywords: Motion for summary judgment; Affidavits; Evidence
Jurisdiction: Federal, Minnesota
Cited Cases: 285 F.3d 764; 663 F.3d 336; 576 F.3d 820; 728 F.2d 1020; 324 F.2d 157; 392 F. Supp. 2d 1246; 855 F. Supp. 2d 871; 533 F. Supp. 145; 920 F.2d 493; 854 F.2d 1179; 255 F.3d 644; 673 N.W.2d 843; 474 N.W.2d 209; 488 F. Supp. 592
Cited Statutes: Fed. R. Civ. P. 56, 56(c); 10B Fed. Prac. & Proc. Civ. § 2738; Fed. R. Evid. 801
Date: 02/01/2013

When affidavits are used to support a motion for summary judgment, they must (1) be made on the affiant’s personal knowledge, (2) set forth facts that would be admissible in evidence, and (3) show affirmatively that the affiant is competent to testify as to the matters stated therein.  Fed. R. Civ. P. 56(c); 10B Fed. Prac. & Proc. Civ. § 2738 (3d ed. 2012) (citing, inter alia, Walling v. Fairmont Creamery Co., 139 F.2d 318, 322 (8th Cir. 1943) (“When affidavits are offered in support of a motion for summary judgment, they must present admissible evidence, and must not only be made on the personal knowledge of the affiant, but must show that the affiant possesses the knowledge asserted.”).  Attorneys’ affidavits are subject to the same rules that apply to other affidavits under Fed. R. Civ. P. 56.  10B Fed. Prac. & Proc. Civ. § 2738.  Accordingly, an attorney’s affidavit is admissible only to prove facts within the attorney’s personal knowledge and as to which the attorney is competent to testify.  Id. 

All evidence offered to support a motion for summary judgment must be such evidence as would be admissible at trial.  Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. Ct. App. 1991) (parallel state court rule)*FN1.  Ordinarily, an unsworn statement is inadmissible hearsay and cannot be considered on a motion for summary judgment.  Powell v. Johnson, 855 F. Supp. 2d 871, 877 n. […]

Subscribe to Litigation Pathfinder

To get the full-text of this Legal Memorandum ... and more!

(Month-to-month and annual subscriptions available)