Request to Defer Summary Judgment for More Discovery

When the request for more discovery is used

Timing: in response to a summary judgment motion. Dispositive motions ask the court to decide all or part of a case without a full trial. They usually follow discovery.

What the rule requires

• If the nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may defer or deny the motion, allow time for discovery, or issue another appropriate order (Rule 56(d)).

In practice, read each requirement closely. Then check whether your court adds anything of its own. For example, many courts set page limits, formatting rules or a duty to confer with the other side first.

You can read the full text of Fed. R. Civ. P. 56(d) online. Also, the federal judiciary publishes the current rules and recent amendments.

The request for more discovery in state court

State courts follow their own rules of procedure. Many states model their rules on the federal rules, so you will often find a similar request for more discovery procedure. However, the name, the deadline and the required form can differ. Therefore, look up the matching rule in your state’s rules of civil procedure. Also read your court’s local rules. Our state procedures guide links to each state’s official rules.

Key terms

In addition, these terms come up often with this procedure:

• Declaration: a written statement of facts signed under penalty of perjury. In federal matters, 28 U.S.C. § 1746 allows an unsworn declaration in place of an affidavit in many situations.

Related procedures

Similarly, these procedures often come up alongside it:

• Motion for Summary Judgment: a motion asserting there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Before you rely on this page

Always read the current rule yourself instead of relying on a summary. Next, check the local rules and the judge’s standing orders, since they often add steps. Then look for recent decisions from your court that apply the rule. Finally, talk to a licensed attorney about your situation. You can find one in our directory.

State court procedure for this filing

The federal rule above applies in federal court. In state court, the same filing is governed by that state's own rules of civil procedure, statutes and local court rules. Many states model their rules on the Federal Rules of Civil Procedure, so the requirements are often similar, but names, numbers, deadlines and forms can differ. Always use the version that applies to the court where your case is filed.

Find the rule in your state

In your state's rules, look for the rule on request to defer summary judgment for more discovery. In states that number their rules like the federal rules, it is often the same rule number as the federal rule.