Have you ever received a summary judgment opposition memorandum that warns the trial court that summary judgment is a “drastic remedy,” as if that is a standard the trial court must apply or consider when ruling on the motion? That language litters opposition memoranda in dockets around the state. And why not? There is plenty of Utah caselaw that supports it. See, e.g., Draper City v. Estate of Bernardo, 888 P.2d 1097, 1101 (Utah 1995) (“‘Summary judgment procedure is generally considered a drastic remedy,’ and is appropriate only when the facts are clear and undisputed.’”) (quoting Timm v. Dewsnup, 851 P.2d 1178, 1181 (Utah 1993)).
This label appears to have taken root in a 1956 Utah Supreme Court opinion, Holland v. Columbia Iron Mining Co., 293 P.2d 700 (Utah 1956). There, the court explained that summary judgment “is a drastic remedy with great possibility of saving time, but will neither save time or further justice unless granted only where it affirmatively appears that there is no reasonable possibility that the loser could establish a valid claim.” 4 Utah 2d 303, 317 (Utah 1956). This view was repeated over the years, several times by a single justice—Justice Crockett—who appeared openly hostile to the procedure:
- Holland v. Columbia Iron Mining Co., 293 P.2d 700, 311 (Utah 1956) (“It is true, indeed, that a summary judgment is a drastic remedy which the courts are, and should be reluctant to use.”) (Crockett, J., concurring).
- Richards v. Anderson, 337 P.2d 59 (Utah 1959) (“It is true that summary judgment is a severe measure which courts should be reluctant to use, and that doubts should be resolved in favor of allowing a full trial of the case.”) (Crockett, C.J.)
- Welchman v. Wood, 337 P.2d 410, 28 (Utah 1959) (“Summary judgment is a drastic remedy and the courts should be reluctant to deprive litigants of an opportunity to fully present their contentions upon a trial.”)
- Pender v. Alix, 354 P.2d 1066, 11 Utah 2d 58, 59 (1960) (“It should be kept uppermost in mind that this is a review of a summary judgment; that it is a drastic remedy which deprives the party of the opportunity to present his evidence; and which the court therefore should be extremely reluctant to grant.”) (Crockett, C.J., dissenting)
- Housley v. Anaconda Co., 427 P.2d 390, 127 (Utah 1967) (“Prior decisions point out that summary judgment is a drastic remedy and should be granted with reluctance.”)
- Burningham v. Ott, 525 P.2d 620, 624 (Utah 1974) (“A summary judgment … is a drastic remedy and is never warranted except on a clear showing that there is no genuine issue as to any material fact.”) (Crockett, J., dissenting in part).
- Timm v. Dewsnup, 851 P.2d 1178, 1181 (Utah 1993) (“Summary judgment procedure is generally considered a drastic remedy, requiring strict compliance with the rule authorizing it.”)
The last reference in a Utah appellate opinion to summary judgment as a “drastic remedy” appears to be in 2008, Kell v. State, 2008 UT 62, 194 P.3d 913. There, the court (citing Timm) stated that “[b]ecause summary judgment is a drastic remedy, we generally require strict compliance with the rules governing summary judgment.” Id. ¶ 48. But requiring strict compliance with the rules should spring from the fact that they are rules, not suggestions. Still, because the “drastic remedy” language is embedded in our caselaw, it often finds its way into long passages in summary judgment oppositions as though it is a standard trial courts must apply. Not so.
There is nothing drastic about summary judgment. It secures what Utah Rule of Civil Procedure 1 promises: “the just, speedy, and inexpensive determination of every action.” Utah R. Civ. P. 1. As the United States Supreme Court put it, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (emphasis added) (quoting Fed. R. Civ. P. 1).
Utah’s standard, which follows the federal standard, is no different. See Salo v. Tyler, 2018 UT 7, ¶ 30, 417 P.3d 581. Just as in federal court, summary judgment in Utah courts cuts off evidence-deficient cases from going to trial, and thus not only eliminates the time and expense of trials, but helps unclog already overburdened trial court dockets. See, e.g., Penunuri v. Sundance Partners Ltd., 2017 UT 54, ¶ 31, 423 P.3d 1150; Kerr v. City of Salt Lake, 2013 UT 75, ¶ 30, 322 P.3d 669. To put it bluntly, as the Seventh Circuit often does, it is the “‘put up or shut up” moment in a lawsuit.” Harney v. Speedway Superamerica LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003)). If a party cannot put up the evidence to survive summary judgment, that party does not deserve a trial.
So don’t fall victim to the “drastic remedy” strategy. Instead, call it what it is: A myth employed to avoid a just result and force a trial that no party deserves.