How to File a Rule 56(d) Motion Before Summary Judgment

To file a Rule 56(d) motion, you submit a written motion together with a sworn affidavit or declaration, before your deadline to oppose summary judgment, that identifies the specific evidence you still need, explains why you cannot present it yet, ties it to the arguments in the summary judgment motion, and shows you have pursued discovery diligently. The rule exists because a party can move for summary judgment at any point in a case, sometimes before you have had a real chance to take depositions or obtain documents, and Rule 56(d) is the mechanism that keeps the court from ruling on an incomplete record.¹

Only the nonmovant can invoke it. If you are the party defending against someone else’s summary judgment motion and the evidence you need is in the other side’s files, held by a third party you have not yet subpoenaed, or depends on a deposition that has not happened, you have a legitimate basis. The rule’s text requires you to show that you “cannot present facts essential to justify [your] opposition.”¹

When to File

File within the deadline your court sets for responding to the summary judgment motion. The federal rules do not impose a single nationwide response deadline; local rules control, and judges set their own schedules. When summary judgment is filed before your answer is even due, the rules give you 21 days after that responsive pleading deadline to respond.¹ Waiting until after the response window closes, or until the court has already ruled, will almost certainly kill your chances.

Before you even draft the motion, look honestly at what you have already done in discovery. The single most important factor judges weigh is whether you pursued discovery with reasonable diligence before claiming you need more time. If the case has been pending for a year and you never served a document request, the motion will read as a stalling tactic. The Supreme Court in Celotex Corp. v. Catrett saw no problem with summary judgment filed a year into litigation where the parties had already conducted discovery.²

A judge evaluating diligence looks at whether you already had the chance to obtain the information through normal discovery channels, whether you actually used those channels, and whether something outside your control prevented you from getting what you needed. If the information is already in your possession, or the discovery you propose is unlikely to turn up anything useful, the motion will be denied.³ The strongest requests come from parties who started discovery promptly, hit a wall they could not control, and can point to a specific trail of effort.

What the Affidavit Must Do

The affidavit is the heart of the filing. Without it, the motion fails. The rule requires the sworn document to lay out “specified reasons” why you cannot present the facts you need, based on personal knowledge and setting out facts that would be admissible as evidence.¹ Vague complaints about incomplete discovery will not clear this bar. The affidavit has to do four things well.

Identify the Specific Evidence You Need

Name the witnesses, documents, or records you intend to pursue. If you need testimony from a company’s chief financial officer about how a contract was priced, say so. If you need internal emails between two specific employees during a particular time period, describe them. This level of detail signals that you have a real investigative plan rather than a hope that something useful might turn up.

Tie the Evidence to the Motion’s Arguments

The missing evidence cannot just be interesting in a general sense. You must tie it directly to the specific arguments in the summary judgment motion that you currently cannot answer. If the motion claims you have no proof of the defendant’s intent, your affidavit should explain that the deposition or document you are seeking would establish exactly that. Judges want to see that granting more time will change the analysis.

Explain Why You Do Not Already Have It

This is where diligence becomes concrete. Document your discovery efforts: dates you served requests, the status of pending subpoenas, any objections or stonewalling from the other side, and any court orders that limited your discovery timeline. A party who has been actively pursuing evidence and encountered obstacles beyond their control is in a fundamentally different position than one who never tried.

Show the Discovery Will Actually Produce Results

Courts will not grant extra time based on speculation. The affidavit needs to make it plausible that the proposed discovery will yield material facts. A request to depose someone who likely has no relevant knowledge, or to search records that probably do not exist, will not persuade a skeptical judge.³ Conclusory statements like “further discovery will reveal disputed facts” are exactly what courts reject.

How to File It

Federal courts use the Case Management/Electronic Case Files (CM/ECF) system for filing motions and other case documents.⁴ Upload the motion, the supporting affidavit or declaration, and a proposed order for the judge. File these as a combined package so the judge sees your justification alongside the request. The electronic timestamp establishes your compliance with deadlines, which matters if timing is contested later.

Serving the motion on the opposing party is mandatory. In most federal courts, electronic filing through CM/ECF generates automatic notification to all registered counsel in the case. No separate filing fee applies for motions within an existing case; the initial civil filing fee covers motion practice throughout the litigation. If your affidavit is sworn before a notary rather than made as an unsworn declaration under penalty of perjury, expect a small notary fee, ranging from nothing to around $25 depending on the state.

Do Not Confuse This with a Rule 6(b) Extension

Rule 6(b) allows courts to extend deadlines generally, and the 2009 Committee Notes to Rule 56 acknowledge that both Rule 56(d) and Rule 6(b) can address premature summary judgment motions.¹ The difference is what you are asking for. A Rule 6(b) motion simply extends the time to file your opposition. A Rule 56(d) motion asks the court to delay or deny summary judgment altogether so you can conduct discovery. If your problem is that you need more time to write your brief, Rule 6(b) is the right tool. If your problem is that evidence you need does not yet exist in the record, Rule 56(d) is the one that fits.

What the Court Can Order

Three outcomes are possible under the rule’s text:

Defer or deny summary judgment. The court can put the motion on hold while you conduct discovery, or deny it outright if ruling without the missing evidence would be premature.¹
Allow targeted discovery. Rather than reopening the entire discovery phase, the court may grant a narrow window for specific actions, such as 30 days to depose one witness or obtain one set of financial records, with clear restrictions on scope.
Issue any other appropriate order. This catch-all gives the court flexibility to impose conditions on the additional discovery, set a compressed timeline, or require cost-sharing between the parties.¹

The court communicates its decision through a written order on the case docket, specifying new deadlines and any limits on the discovery it is permitting. The timeline for a ruling varies widely with the judge’s caseload, from a few days to several weeks. If the court denies your motion, you still have to oppose summary judgment with whatever evidence you already have. Denial does not mean you automatically lose on summary judgment, but it often signals that the court sees your opposition as thin.

Why the Formal Affidavit Matters

Some parties argue in their opposition brief that discovery is incomplete, expecting the judge to treat that as a Rule 56(d) request. That approach fails in most courts. The rule specifically requires an affidavit or declaration. Raising the issue informally in a brief, without the sworn filing, risks waiving the right to seek additional discovery entirely. Courts do take extra care with self-represented litigants, sometimes advising them about the need to respond and the risk of losing by summary judgment if they do not file an adequate response.¹ That leniency has limits. Even pro se parties should file the formal affidavit.

Filing a Rule 56(d) motion purely to delay the case carries real consequences. Under Rule 56(h), if the court concludes that an affidavit was submitted in bad faith or solely to buy time, it can order the filer to pay the other side’s reasonable expenses, including attorney’s fees. The court can also hold the offending party or their attorney in contempt or impose other sanctions.¹ The court must give notice and a reasonable opportunity to respond before imposing these penalties.

Preserving the Issue for Appeal

If the trial court denies your Rule 56(d) motion and then grants summary judgment against you, the denial becomes an issue you can raise on appeal. Appellate courts review these decisions for abuse of discretion, which is a high bar. The appeals court will not second-guess the trial judge unless the ruling was “plainly wrong and resulted in substantial prejudice.”⁵

The quality of your affidavit at the trial level directly controls your chances on appeal. A detailed, specific affidavit that shows diligence and connects the missing evidence to the legal issues gives the appellate court something to work with. A conclusory affidavit, or no affidavit at all, almost guarantees affirmance. Building the record properly at the district court stage is the single most important thing you can do to preserve this issue.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment
2
Legal Information Institute. Celotex Corp v Catrett
3
Federal Judicial Center. The Analysis and Decision of Summary Judgment Motions – A Monograph on Rule 56 of the Federal Rules of Civil Procedure
4
United States Courts. Electronic Filing CM/ECF
5
Justia. In re PHC, Inc Shareholder Litigation