Drafting a Summary Judgment Motion in Missouri Advice for New Associate Attorneys

As a first-year associate, the responsibility of drafting your first motion for summary judgment is daunting. Law students are introduced to the basics of the summary judgment standard in their 1L Civil Procedure class, and—depending on what route you took through law school—reacquainted with the standard when preparing for the bar exam.

After three years of school and a summer of studying, any law school graduate can likely rattle off the summary judgment standard without missing a beat. But what I’ve come to learn in actual practice is that understanding the dos and don’ts of drafting the motion is a skill that is learned through careful guidance from senior attorneys, a little bit of patience, and some trial and error. There are key aspects to the motion that first year associates should learn to start looking for, such as knowing the right time to file and the facts you will rely on as the basis for the motion.

Where it all begins though, is understanding the required framework for drafting this motion. In Missouri, knowing the applicable law is critical to learning this framework. And in my short time since I began practicing law, I’ve already seen opposing counsels make the fatal mistake of failing to subscribe to it.

(Just looking for a quick refresher? Jump to the end for a step-by-step guide on how to draft a summary judgment motion in Missouri.)

Understanding the Law

This is certainly self-explanatory for any lawyer: the most important thing you can do before preparing a summary judgment motion is understand the law that sets out the procedure.

What Is a Summary Judgment?

Simply put, a summary judgment is a judgment entered without a trial. It can pertain to the entire lawsuit itself, or it can pertain to a single substantive issue. For example, in a breach of contract case, a plaintiff may obtain summary judgment on the issue of breach, but the court could still hold a trial on the issue of damages. In the federal courts, Federal Rule 56 governs the summary judgment standard. In Missouri, however, summary judgment is governed under Rule 74.04.

Summary judgment is appropriate only when (1) there is no genuine dispute as to any material fact, and (2) the movant is entitled to judgment as a matter of law. Missouri courts have described material facts as those that have legal probative force as to a controlling issue. See e.g., Feder v. Nation of Israel, 830 S.W.2d 449, 451 (Mo. App. E.D. 1992). This is slightly different from the federal courts, which describes said facts as material only when it will meaningfully affect the outcome of the issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, a fact is material when we can’t determine which side will prevail until we resolve any uncertainty about it. Id.

The second requirement for obtaining summary judgment is a “genuine dispute.” It’s important to note that there is never a genuine dispute just because the non-moving party says there is, or just because the non-moving party denies the movant’s version of facts without supporting facts. In the federal courts and in Missouri, the non-moving party must show that the real evidence on the record creates a genuine dispute of material fact. So, what is a genuine dispute? Once again, the federal courts and Missouri courts differ slightly in their definitions of the term—but it’s certainly not so distinct that they should be considered contrary to each other.

In the federal courts, a “genuine dispute” exists when “reasonable minds could differ” about the truth, based on the evidence. Anderson, 477 U.S. at 248, 252. Whereas in Missouri, a genuine dispute exists where the record reasonably supports two plausible, but contradictory, accounts of the essential facts. Stanbrough v. Vitek Solutions, Inc., 445 S.W.3d 90, 99 (Mo. App. E.D. 2014). Although worded slightly different, what is required to meet the second requirement for summary judgment is virtually the same in both courts.

Although the summary judgment requirements in Missouri and the federal courts are somewhat similar on their faces, it’s important to understand the distinction between Missouri’s fact pleading regime as opposed to the federal courts’ notice pleading regime. To put it simply, Missouri and federal summary judgment practice correspond only in language, not in function. The federal courts use discovery to identify triable issues and the facts upon which the plaintiff’s claim rests, where in Missouri, the courts use pleadings to determine those. In addition, the federal courts will rely on summary judgment procedures to dispose of baseless claims, while that continues to be the role of motions to dismiss in Missouri.

The purpose of summary judgment under Missouri’s fact-pleading regime is to identify cases in which there is no genuine dispute as to the facts and the facts as admitted show a legal right to judgment for the movant. Because federal summary judgment serves a different purpose, courts find it difficult to construe the federal rules as persuasive.

The takeaway form this: federal caselaw will be considered no more persuasive than any other nonbinding authority in determining summary judgment motions, so be careful which authorities you rely on.

In Missouri, understanding the procedure for filing a motion for summary judgment starts with Rule 74.04 and the Missouri Supreme Court’s opinion in ITT Commercial Finance Corp v. Mid-America Marine Supply Corp.

Rule 74.04

As stated previously, Rule 74.04 lays out the procedure for summary judgment in the state of Missouri. It is incredibly important to know exactly what this rule requires when you file a motion for summary judgment, or a response to one.

Rule 74.04(c)(1) sets forth the contents of a motion for summary judgment. This includes the motion itself, the statement of uncontroverted facts (with supporting discovery, exhibits, or affidavits), and a separate legal memorandum explaining why summary judgment should be granted. ITT expands on the legal basis needed for the summary judgment motion (see more about ITT below), so—I cannot stress enough—make sure to read and/or reread the case before you begin drafting the motion.

Rule 74.04(c)(2) refers to the non-movants response and provides that the response shall admit or deny each of movant’s factual statements in numbered paragraphs that correspond to movant’s numbered paragraphs. “A denial may not rest upon the mere allegations or denials of the party’s pleading,” according to rule 74.04. “Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.”

ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp.

What most new attorneys (like myself) will quickly come to find in Missouri, is that most Missouri litigators are well versed in citing to ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp, 854 S.W.2d 371 380 (Mo. banc 1993). For almost thirty years, ITT governed summary judgment, despite the revisions made to Rule 74.04 in 1994. Pulling up citing references on Lexis or Westlaw will show that the case has been cited too over 3,000 times in the state of Missouri. It’s no exaggeration to say that the case is quite literally the bedrock of summary judgment practice in Missouri. It wasn’t until very recently that the Supreme Court of Missouri revised certain portions of ITT’s somewhat outdated guidance on summary judgment, particularly regarding the statement of uncontroverted facts which courts rely on when determining these motions (see the Green v. Fotoohighiam section below).

ITT states that there are only three legal bases for a motion for summary judgment made by a defendant: (1) that the facts negate any one of the plaintiff’s elements facts, (2) that plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of plaintiff’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the defendant’s properly-pleaded affirmative defense. ITT, 854 S.W.2d at 381.

Alternatively, for a plaintiff, ITT tells us that the legal basis of a summary judgment motion is that there is no genuine dispute as to those material facts—all of the elements of the claim—upon which plaintiff would have had the burden of persuasion at trial, and if an affirmative defense has been properly pled, that one or more of the facts—elements—necessary to support the affirmative defense is absent. ITT, 854 S.W.2d at 381-82.

Under the framework outlined in ITT, trial courts analyzing summary judgment were required to look at facts anywhere in the record to determine if any genuine disputes of material fact existed. This included facts that neither the movant nor non-movant cited to in their summary judgment filings. It wasn’t until 2020 when Green v. Fotoohighiam came down from the Supreme Court of Missouri that this framework was upended with its focus on the numbered paragraphs requirement. The Green decision, as we’ll discuss shortly, appears to be more directed at trial judges than attorneys themselves, but it focuses on the important role of the statement of uncontroverted facts in winning a motion.

Green v. Fotoohighiam

Green is a recent Missouri Supreme Court opinion that clarifies exactly what courts will—and, more importantly, will not—consider when examining a motion for summary judgment. Green v. Fotoohighiam, 606 S.W.3d 113 (Mo. banc 2020).

If I were to summarize Green into a short and simple phrase, it would be “properly supported, numbered paragraphs” (a/k/a PSNPs) are key. At night, after a rewarding day of drafting motions for summary judgment, I lay down in bed, close my eyes, and see “PSNP” hovering back and forth against the frame of my closed eyelids—kind of like that old school DVD screensaver from the early 2000s. I recognize this as a sign that my understanding of the summary judgment requirements is becoming deeply ingrained in my mind. Or perhaps I need to get outside more. Buckle up though, you’re going to be seeing that acronym a lot before the end of this!

The numbered paragraph framework is crucial to get a motion for summary judgment—or the response—in the running for consideration. The facts in Green illustrate exactly how important following this framework will be to any new associate.

In Green, Plaintiff sued her neighbor and several co-conspirators alleging that Defendant conspired to set her mobile home on fire, causing Plaintiff to suffer serious bodily and emotional injury and property damage. 606 S.W.3d at 114. Following discovery, Plaintiff moved for partial summary judgment against Defendant on the issue of liability. Pursuant to Mo. Rule 74.04, Plaintiff included a statement of uncontroverted facts with her motion which stated, among other things, that Defendant offered two co-defendants $500 to set Plaintiff’s mobile home on fire.

Each of Plaintiff’s allegations in the statement of uncontroverted facts cited to deposition testimony or an affidavit to support it. But along with the documents, portions of Defendant’s deposition that were not specifically cited to or referenced by Plaintiff were also included. That testimony included Defendant’s statements that he never met the two co-defendants. Defendant failed to file a timely response to Plaintiff’s motion for summary judgment, which led the circuit court to find the Plaintiff’s statements of uncontroverted facts admitted. Accordingly, the court entered partial summary judgment as to liability in Plaintiff’s favor.

On appeal, Defendant attempted to argue that Plaintiff’s inclusion of Defendant’s surplus deposition testimony contradicted material facts on which she based her summary judgment motion. However, the Missouri Supreme Court rejected this argument, reiterating that any Missouri court reviewing the record to determine a motion for summary judgment (in the first instance or on review), does not need to look any further than what was properly put before it under Rule 74.04(c). 606 S.W.3d at 121. So, under Rule 74.04(c), the facts reviewed by the court in determining motions for summary judgments are strictly limited to properly supported facts in the movant’s statement of uncontroverted material facts, and properly supported facts in the non-movant’s responsive filings. 606 S.W.3d at 117-18.

The court, in applying those principles, found that Defendant was not permitted to rely on the uncited portions of his deposition testimony to create a genuine issue of material fact because it was not cited or otherwise referenced in any Rule 74.04(c) paragraph or response. 606 S.W.3d at 118. Even the fact that Defendant’s testimony was part of the entire record was inconsequential because the court had no obligation to look outside discovery, exhibits, and affidavits referenced in Rule 74.04(c) paragraphs and responses. Id. at 118. To the contrary, if the court were to sift through the record identifying disputed issues of material fact, it would cause the court to “impermissibly act as an advocate for a party.” Id.

Applying the Law

Filing the Motion for Summary Judgment: Statement of Uncontroverted Facts

The decision in Green represents the first time the Missouri Supreme Court formally (partially) overruled ITT and its progeny. The requirement that facts would come into the summary judgment record only through the numbered paragraphs and responsive filings was essentially a complete departure from earlier trial court’s review of the “entire record” for a genuine dispute of material facts.

For new attorneys filing a motion for summary judgment, this means that when you’re drafting your statement of uncontroverted facts, PSNPs are key. A trial court will only review what is specifically alleged in your numbered paragraph format, and under Rule 74.04, each numbered paragraph must be supported with specific references to the pleadings, discovery exhibits or affidavits. In practice, this would look something like:

Plaintiff’s Statement of Uncontroverted Facts

1. Operators of motor vehicles have a duty to observe and obey traffic signals such as stop signs in the state of Blackacre. (See Defendant’s Affidavit attached as Exhibit A).

2. Defendant owns a home at the end of Green Avenue that is across the street from Plaintiff’s home in the state of Blackacre. (See Defendant Deposition, ¶¶ 4:16-17 attached as Exhibit B).

3. At the entrance to Green Avenue, there is a stop sign that every vehicle must pass to get to the end of Green Avenue (See Defendant Deposition, ¶¶ 5:31-32 attached as Exhibit C).

4. On May 3, 2019, Defendant blew through the stop sign without stopping (See Plaintiff’s Deposition, ¶¶ 6:22-24 attached as Exhibit D).

5. When Defendant blew through the stop sign, he struck Plaintiff with his vehicle, causing her damage. (See Plaintiff’s Deposition ¶¶ 8:33-34 attached as Exhibit E).

Looking at the facts outlined in this basic negligence claim, each of Plaintiff’s allegations in the statement of uncontroverted facts cited to deposition testimony or an affidavit to support it. Construing Green, a Missouri trial court would likely consider these PSNPs sufficient for determining a motion for summary judgment on the issue of liability. The trial court would not look any further beyond these paragraphs for the Plaintiff’s basis for summary judgment. If in this case, the Plaintiff failed to properly cite to deposition testimony or affidavits in any of these paragraphs, it could prove fatal to the Plaintiff’s motion.

As a defendant filing for summary judgment, your basis for the motion will likely work a little differently. Instead of attempting to establish the elements of a claim like a plaintiff, a defendant will want to refer back to ITT for the three accepted legal basis for the motion: (1) that the facts negate any one of the plaintiff’s elements facts, (2) that plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of  any one of the plaintiff’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support defendant’s properly-pleaded affirmative defense. ITT, 854 S.W.2d at 381. In practice, this would look something like:

Defendant’s Statement of Uncontroverted Facts

1. Plaintiff filed their Petition on December 3, 2019 alleging that she was struck by Defendant’s vehicle as a result of Defendant’s negligence which caused her damage (See Plaintiff’s Petition, attached as Exhibit A).

2. Per the scheduling order in this case, Plaintiff was to complete discovery depositions of all of its fact witnesses prior to October 10, 2020. (See Scheduling Order attached as Exhibit B).

3. As of the date of filing this motion, (November 11, 2020) Plaintiff has failed to produce any witnesses, including herself, for deposition in this matter. (See Case Docket).

4. In response to Plaintiff’s discovery requests, Defendant produced a dash camera video recording, taken from his vehicle, which shows the Green Avenue intersection at the time of the accident in this matter. (See Defendant’s Responses to Plaintiff’s Requests for Production, attached as Exhibit C).

5. The dash camera footage shows that on December 3, 2019, Defendant came to a full stop at the stop sign before attempting to proceed down Green Avenue. (See Exhibit C).

6. To date, Plaintiff has offered no evidence that controverts the dash cam footage caught from Defendant’s vehicle. To the contrary, the record is devoid of any evidence at all that shows Defendant’s alleged negligence caused her damage. (See Uncontroverted Facts 1-5).

Under the facts of this continuing negligence case, Defendant’s basis for his motion for summary judgment rested on the “after an adequate period of discovery, Plaintiff has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of Plaintiff’s elements” prong, as outlined in ITT above. To reiterate, a trial court will only review what has been properly put before it under Rule 74.04, which means your PSNPs need to be on point!

Responding to the motion for summary judgment

Responding to a motion for summary judgment is a bit of a different ball game, but the requirements are generally the same for a defendant as they are for a plaintiff. As seen in Green, the requirements for responding to a summary judgment motion are equally strict for the non-movant as they are for the movant. PSNPs are also just as crucial! There is a little less work involved for the non-movant, as you generally only need to prepare one response motion for summary judgment but be aware that senior attorneys will typically instruct you file a legal memorandum explaining why summary judgment should not be granted.

Under Rule 74.04(c)(2), a response must admit or deny each of movant’s factual statements in numbered paragraphs that correspond to movant’s numbered paragraphs. Additionally, the response must support each denial with specific references to the discovery exhibits, or affidavits that demonstrate specific facts showing there is a genuine issue for trial. These are essentially the same PSNP requirements for the movant, but the structure of your numbered paragraph response should follow along with the movant’s motion. In practice, this would look something like this (continuing off the Plaintiff’s Statement of Uncontroverted Facts above):

Defendant’s Responses to Plaintiff’s Statement of Uncontroverted Facts

1. Admit.

2. Admit.

3. Admit.

4. Deny. See the deposition of Witness A ¶¶ 10:13-29, attached as exhibit A, stating that Witness A was at the scene at the time of the accident, and that she saw Defendant come to a stop at the stop sign.

5. Deny. See the deposition of Witness A ¶¶ 16:18-26, attached as Exhibit B, stating that Witness A saw Plaintiff ride her bike at a fast speed into the intersection, striking Defendant’s vehicle.

Once again, under Green, a Missouri trial court would likely consider these responses sufficient for determining whether a genuine dispute of material facts exists as to the issue of liability. Failure to properly respond to each and every one of the movant’s numbered paragraphs, or a failure to properly cite to specific references for each denial will ultimately result in an admission of the truth of that numbered paragraph. Imagine if the language below were omitted from Defendant’s Responses above—this would surely result in an admission of all of Plaintiff’s uncontroverted facts and summary judgment for Plaintiff:

4. Deny. See the deposition of Witness A ¶¶ 10:13-29, attached as exhibit A, stating that Witness A was at the scene at the time of the accident, and that she saw Defendant come to a stop at the stop sign.

5. Deny. See the deposition of Witness A ¶¶ 16:18-26, attached as Exhibit B, stating that Witness A saw Plaintiff ride her bike at a fast speed into the intersection, striking Defendant’s vehicle.

As Rule 74.04 makes clear, you cannot rely on mere allegations or denials and expect a good outcome for your client. Even if the facts in the above example were true, because Defendant failed to properly cite to those facts, they did not become a part of the summary judgment record. Therefore, a court would not be able to consider them in determining whether a genuine dispute exists.

Understanding these legal principles as outlined in Rule 74.04, ITT, and Green will help new attorneys avoid any fatal deficiencies in their summary judgment filings, and ultimately become much better attorneys in the long run.

Bringing It All Together

While a lot was discussed above, the summary judgment standard in Missouri can certainly be compressed into a checklist for anyone that needs to file or respond to said motion. Keep this guide handy when you’re preparing to file a summary judgment motion in Missouri.

Filing a Motion for Summary Judgment as a Plaintiff

1. Read Missouri Rule 74.04, ITT, and Green.
2. Review the elements of your claims.
3. Review the elements for any affirmative defenses Defendant is alleging.
4. Prepare your motion for summary judgment as required by Rule 74.04.
5. Prepare your statement of uncontroverted facts. Specifically state the evidence that supports each fact (in paragraph form) for every element of your claim, and if Defendant properly pled any affirmative defense, state the evidence that supports why one or more of the facts (elements) necessary to support the affirmative defense is absent. PSNPs are key!
6. Treat yourself to a snack or something. Self-care is important.
7. Attach your exhibits as referenced in your statement of uncontroverted facts.
8. Prepare your legal memorandum in support of summary judgment.
9. Review everything.
10. File.

Filing a Motion for summary Judgment as a Defendant

1. Read Missouri Rule 74.04, ITT Commercial Finance Corp v. Mid-America Marine Supply Corp., and Green v. Fotoohighiam.
2. Determine what legal basis under ITT that you intend on filing a motion for summary judgment:
   1. If you’re contending that the facts negate an element of one or more elements of Plaintiff’s claims, review the elements of Plaintiff’s claims.
   2. If you’re contending that Plaintiff has not and cannot adduce evidence that would permit Plaintiff to prove one or more facts (elements), review the scheduling order for discovery deadlines and upcoming trial dates, what evidence has already been presented, and what witnesses (if any) have been tendered.
   3. If you’re contending that there is no genuine dispute as to the existence of each of the facts necessary to support your affirmative defense, review the elements of whatever defenses you pled (this also requires reviewing your Answer and making sure the defense was properly pled).
3. Prepare your motion for summary judgment as required by Rule 74.04.
4. Prepare your statement of uncontroverted facts (PSNPs!) using one of the three legal bases in Steps 2(a)–2(c) as your framework.
5. Snack time!
6. Attach your exhibits as referenced in your statement of uncontroverted facts.
7. Prepare your legal memorandum in support of summary judgment.
8. Review everything.
9. File.

Responding to Motion for Summary Judgment (Either Party)

1. Read MO Rule 74.04, ITT, and Green.
2. Read the opposing side’s motion, statement of uncontroverted facts, exhibits, and legal memo.
3. Read back through the opposing side’s statement of uncontroverted facts and determine which ones must be admitted and which should be denied.
4. Draft your response to the motion for summary judgment as required by Rule 74.04:
   1. In the PSNP format, admit any facts that the evidence does not refute.
   2. In the PSNP format, deny any facts that the evidence refutes and cite to any exhibits, depositions, and affidavits to support the denials.
5. Attach your exhibits as referenced in your statement of uncontroverted facts.
6. Prepare your own legal memorandum (optional, but highly recommended).
7. Review everything.
8. File.

As a first-year associate attorney, I’ve been lucky to quickly learn the ins and outs of filing motions for summary judgment under the tutelage of the experienced attorneys at Rasmussen Dickey Moore. From my first day at RDM, I was given the opportunity to dive head-first into litigation and develop legal skills that I will surely carry with me for the rest of my career.

If you’re looking to hit the ground running out of law school, or struggling to find meaning in your day-to-day work at one of the big firms, check out Rasmussen Dickey Moore’s Careers page or follow RDM on LinkedIn to stay up to date on our career opportunities in Kansas City, St. Louis, and Los Angeles.