[opinion8r]

I am a lawyer. The legal effect of NOT responding to a Motion for Summary Judgement is to Admit to the allegations contained in the underlying complaint. That is what WND was saying.

[savedbygrace]

That's what this non-lawyer thought. Thanks for clearing this matter up.

[bmwcyle]

What is the judge afraid to act on the silence?

[Pres Raygun]

I am a lawyer. The legal effect of NOT responding to a Motion for Summary Judgement is to Admit to the allegations contained in the underlying complaint. That is what WND was saying.

It appears that some apologies are in order from non-lawyers, mlo and John H K. I'm not holding my breath.

[mlo]

I am a lawyer. The legal effect of NOT responding to a Motion for Summary Judgement is to Admit to the allegations contained in the underlying complaint. That is what WND was saying.

The effect of not responding to a Rule 56.1 motion is to concede the issues raised in the motion. Notice how WND didn't actually tell us what those issues were? That's what I was saying.

[MindBender26]

Let's see the motion and the order before we accept anything from Wierd News Delivery

[lawyamike]

That's not correct. The complete and accurate answer is as follows:

"When a motion for summary judgment is made and supported as provided in this rule [nb: by affidavit and other proof], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."

It's the last sentence here that is probably most relevant in this case. It sounds like the Government [the adverse party] did not respond, and so if appropriate, then it will have summary judgment entered against it.

When would summary judgment be "appropriate"? If the Government had failed to create a genuine factual dispute (through the submission of an affidavit, etc.) on an issue of material relevance to the case, then it would be appropriate. Summary judgment works like this: the judge determines whether, on the facts as submitted and undisputed, the law requires judgment for one party or not.

I'll put it in concrete terms: if WND-Guy alleged that Flight 800 was blown to pieces by a missile, but whether the flight was blown to pieces was not the question at issue, then the Government was right not to respond, and it will not lose the case as a result. For example, if the legal issue is whether a government agency possesses any of the materials sought, then it doesn't matter whether Flight 800 was attacked by terrorists.

Keep in mind throughout that not responding to an allegation in a motion for summary judgment does not -- emphasis: *does not* -- concede a point as a moral or metaphysical matter.

For example, if I were to sue Mr. Opinion8r on the legal theory that I deserve a judicial declaration that I am Freerepublic's most brilliant lawyer, I might submit the relevant facts in support of my case: I would claim that I attended a better law school, won more cases after trial or on appeal, earned more money from clients, garnered more professional accolades, etc. Were he to fail to respond to any of those factual assertions, and the judge decided that the assertions were relevant to the question whether I was the more brilliant attorney, then Rule 56(e) would kick in, and I would be entitled to summary judgment.

On the other hand, had I alleged that I am more handsome than Mr. Opinion8r -- a matter that is not relevant to the question of legal brilliance -- then Mr. Opinion8r could decline to respond (to my scurrilous and likely meritless claim to being better-looking) and it would not matter to the merits of his legal claim. Of course, it also would not be the equivalent of Mr. Opinion8r's conceding that I am, in fact, more handsome than him. It's this last sentence that I think WND-guy is misinterpreting Rule 56(e) -- of which Rule 56.1 is probably a local variant -- to demonstrate or to imply.

[1L]

I am a lawyer. The legal effect of NOT responding to a Motion for Summary Judgement is to Admit to the allegations contained in the underlying complaint.

Not exactly, counselor. IF the movant has satisfied their initial burden on summary judgment of essentially showing by whatever means there is no genuine issue of material fact, it is then up to the non-movant to show discovered facts outside of the pleadings that prove there are sufficient material facts in question. While this is the federal standard (where this case is), state standards vary. In Texas, for example, there is no requirement on the part of the non-movant to even respond. The motion for summary judgment stands or falls on it's own.

Either way, it has nothing to do with "admitting" anything, only acknowledging whether there are or are not sufficient material fact issues. Summary judgment is a huge part of my practice, and I win the majority of mine. I would almost never recommend a non-movant not respond, but getting sloppy when it comes to burdens on either party can prove fatal -- either at that time or on appeal.