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Seventh Circuit Examines Effect of Failing to Timely File Opposition to Motion for Summary Judgment

On Behalf of | Jun 11, 2021 | Firm News

We have discussed the nuances of the governing standards for summary judgment in both Indiana and federal courts. We have even examined the propriety of filing a reply brief in support of summary judgment within an Indiana state court. We have not, however, addressed what happens when a party fails to timely respond to a motion for summary judgment. Courtesy of the Seventh Circuit’s opinion in Robinson v. Waterman, we are provided an opportunity to do so.

Before we dive into Robinson, let us first look at how the issue would be resolved in Indiana trial courts. Hoosier practitioners are keenly aware that the deadline for responding to a motion for summary judgment in Indiana state courts is dictated by Indiana Trial Rule 56(C). In relevant part, that rule reads: “An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.” That relatively innocuous statement, however, has been interpreted to be a hard-and-fast deadline that cannot be altered once the deadline has passed. Unlike most every other Indiana Trial Rule, which, by operation of Trial Rule 6(B), may be enlarged both before and after the deadline has passed, Rule 56 summary judgment motions may only be enlarged prior to the expiration of the deadline. That result is dictated by Trial Rule 56(I): “For cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit.” As the Indiana Supreme Court explained:

When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period.

Mind you, that does not mean the failure of an opposing party to timely respond ensures victory for the moving party. In Murphy v. Curtis, the Indiana Court of Appeals observed that “summary judgment is awarded on the merits of the motion, not on technicalities.” Indeed, “even a party who failed to respond to a motion for summary judgment could have summary judgment entered in his favor.” As such, when a party fails to file a response or designated evidence in opposition, it may still preserve its ability to make argument upon the record designated in the original motion, even though it may not augment that record with any filings of its own.

That takes us to federal practice. Unlike Indiana Trial Rule 56, Federal Rule of Civil Procedure 56 does not establish a response deadline or the procedure for extending any such deadline, other than extending time for the purpose of allowing further discovery to occur in accordance with Rule 56(d). Instead, the deadline for responding to a federal motion for summary judgment is typically established by the local rules of the district court in which the motion was filed. Indiana has two federal district courts split between the northern counties and the southern counties. Northern District of Indiana Local Rule 56-1(b)(1) provides twenty-eight days for the non-moving party to file its response and opposing evidence. The Southern District of Indiana, in its Local Rule 56-1(b), also allows twenty-eight days to respond.

That takes us back to Robinson. That case was filed in the Eastern District of Wisconsin. That court’s Local Rule 56(b)(2) establishes a thirty-day response deadline and, in Rule 56(b)(4), further dictates that “[t]he Court will deem uncontroverted statements of material fact admitted solely for the purpose of deciding summary judgment.” When the pro se plaintiff failed to timely file a response in opposition—though filing a belated response twenty days later—the district court entered summary judgment against the plaintiff. The plaintiff appealed. Although the appeal ultimately proved unsuccessful, the opinion yielded insight into how courts are to handle similar situations.

As to rejecting the untimely response brief and deeming the facts in the summary judgment brief as admitted, the Seventh Circuit found that “[t]he district court permissibly applied Local Rule 56(b)(4)[.]” But, the Seventh Circuit rejected the district court’s assertion that the “failure to oppose the motion was ‘sufficient grounds, standing alone, to grant the motion.’” The appellate court clarified: “Regardless of the local rules, a failure to file a timely response to such a motion is not a basis for automatically granting summary judgment as some kind of sanction. Even where a non-movant fails to respond to a motion for summary judgment, the movant ‘still had to show that summary judgment was proper given the undisputed facts,’ with those facts taken as usual in the light most favorable to the nonmovant.”

To summarize. In both Indiana state and federal court a failure to timely respond to summary judgment may prohibit a belated filing of evidence in opposition to the motion. But, in Indiana, there is no discretion for the court to allow untimely filings. In federal and Indiana state courts, the moving party is not automatically entitled to summary judgment simply because the non-moving party failed to timely respond.

Join us again next time for further discussion of developments in the law.


  • Robinson v. Waterman, 1 F.4th 480 (7th Cir. 2021) (Wood, J.).
  • Borsuk v. Town of St. John, 820 N.E.2d 118 (Ind. 2005) (Shepard, C.J.).
  • Murphy v. Curtis, 930 N.E.2d 1228 (Ind. Ct. App. 2010) (Mathias, J.), trans. denied.
  • Colin E. Flora, Indiana Court Explains Meaningful Difference Between State & Federal Summary Judgment Standard, Hoosier Litig. Blog (Dec. 13, 2013).
  • Colin E. Flora, Indiana Court of Appeals Reminds that Reply Briefs are Permissible in Summary Judgment, Hoosier Litig. Blog (Feb. 16, 2018).

*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, client or otherwise, should act or refrain from acting on the basis of any content included herein without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.