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11. Should the court grant the summary-judgment motion?
The actor's brief opposing the motion relied solely on the allegations of the complaint.
An actor brought a federal diversity action against a theater company for breach of contract. Twenty days after discovery closed, the company moved for summary judgment. The company attached to the motion affidavits of its managing director and artistic director and a verified copy of its contract with the actor. In their affidavits, the directors stated facts establishing that the company had fully performed the contract.
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A is incorrect. The court need not take the allegations and inferences of the complaint as true. In fact, the court may consider evidence beyond the pleadings to determine whether there is a genuine dispute as to any material fact. Here, the company offered such evidence to establish its defense of full performance.
B is incorrect. A party may move for summary judgment at any time prior to 30 days after the close of discovery. Fed. R. Civ. P. 56(b). Here, the company's motion for summary judgment was timely because it was made 20 days after discovery closed.
C is incorrect. The failure to file evidence is not, itself, a basis for granting summary judgment as there is no requirement that an opposing party file evidence in opposition to a summary judgment motion. First Nat. Bank of Arizona v. Cities Serv. Co., 88 S. Ct. 1575 (1968). The opposing party may simply argue that the moving party's evidence is insufficient to warrant judgment as a matter of law. 10A Wright, Miller & Kane, Federal Practice & Procedure § 2727.2.