West Virginia Motion for Summary Judgment
West Virginia's current Rule 56 tracks the federal summary judgment structure section by section, but the actual deadlines live in the separate motion practice rule: a 21 calendar day response counted forward from service, a 7 calendar day reply, and 14 calendar days notice before any hearing.
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Introduction
West Virginia Rule of Civil Procedure 56 now follows the same (a) through (g) lettering used in the current federal summary judgment rule, but Rule 56 itself sets no notice or response schedule of its own. A party may file a motion for summary judgment at any time until 30 days after the close of all discovery, unless a different time is set by court order, and the rule sets no minimum waiting period before a party may file (W. Va. R. Civ. P. 56(b)). The deadlines for briefing a motion for summary judgment instead come from the separate general motion practice rule: a written motion and notice of hearing must be served at least 14 calendar days before the time set for the hearing (W. Va. R. Civ. P. 6(d)(1)), though a hearing is not mandatory, since once briefing is complete the circuit court may either schedule argument or decide the motion based on the materials submitted (W. Va. R. Civ. P. 6(d)(1); W. Va. Tr. Ct. R. 22.03). Once the motion is served, the respondent, the party who received the motion, must file and serve a memorandum in response within 21 calendar days of service of the motion, and the movant may file and serve a reply memorandum within 7 calendar days of service of that response memorandum (W. Va. R. Civ. P. 6(d)(2), (d)(3)). These are calendar days, counted forward from the date the motion is served rather than backward from a hearing date, and every intermediate Saturday, Sunday, and legal holiday counts toward the total (W. Va. R. Civ. P. 6(a)(1)(A)). These 21-day and 7-day periods may be modified by the judicial officer to whom the motion is addressed, a surreply memorandum may not be filed except by leave of court, and any opposing affidavit must separately be served at least 7 days before the hearing unless the court permits otherwise (W. Va. R. Civ. P. 6(d)(2)). The standard is that the court shall grant summary judgment if the movant shows there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law (W. Va. R. Civ. P. 56(a)); West Virginia has kept this older genuine issue standard language rather than adopting the federal rule's genuine dispute phrasing. Required papers include a written motion identifying each claim or defense, or the part of each claim or defense, on which judgment is sought (W. Va. R. Civ. P. 56(a)); supporting evidentiary materials such as depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers (W. Va. R. Civ. P. 56(c)(1)(A)); and any affidavit or declaration must be made on personal knowledge, set out facts that would be admissible in evidence, and show the affiant is competent to testify (W. Va. R. Civ. P. 56(c)(4)). A supporting memorandum is optional but, like an opposing memorandum, is capped at 20 pages, double-spaced, absent a showing of good cause to exceed that limit (W. Va. Tr. Ct. R. 22.01). Unlike California, New York, or Illinois, West Virginia's rule imposes no mandatory separate statement of undisputed material facts. West Virginia has no Texas-style no-evidence motion; the movant always carries the initial burden of showing entitlement to judgment under Rule 56(c)(1). Partial summary judgment is instead built directly into Rule 56(a) itself: the same motion, under the same subsection, may seek judgment on each claim or defense, or the part of each claim or defense, using the same procedure as a full summary judgment motion. If judgment is not rendered on the whole case and a trial remains necessary, the court shall, if practicable, ascertain at the hearing what material facts exist without substantial controversy and enter an order treating those facts as established at trial (W. Va. R. Civ. P. 56(c)). Both the mover and the respondent need to track these deadlines: a respondent who misses the 21-day window risks having the motion considered without any opposing memorandum or evidence in the record. Summary judgment practice is technical and is frequently lost on procedure rather than the merits, and a motion is not automatically granted just because the other side fails to respond, since the court must still find no genuine issue as to any material fact before granting it. Attorney review is available before filing or responding. This page covers a civil motion for summary judgment in a West Virginia circuit court under Rule 56. It does not cover a motion to dismiss, a motion to set aside a default judgment, or a motion for summary judgment in federal court, which follows Federal Rule of Civil Procedure 56 rather than West Virginia's rule.
Key Things to Know
- 1
West Virginia sets no notice or response schedule in Rule 56 itself: a written motion and notice of hearing must be served at least 14 calendar days before the hearing, the respondent must file a memorandum in response within 21 calendar days of service of the motion, and the movant may reply within 7 calendar days of service of that response, all under the general motion practice rule, Rule 6(d), and all calendar days (W. Va. R. Civ. P. 6(d)(1)-(3)).
- 2
If you are the respondent, your 21-calendar-day response clock starts when the motion is served on you, not when a hearing is noticed. File any opposing memorandum and evidence within that window unless the judicial officer to whom the motion is addressed modifies the time (W. Va. R. Civ. P. 6(d)(2)).
- 3
A West Virginia motion for summary judgment is not automatically granted just because the respondent files nothing: the court must still find there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law before granting it (W. Va. R. Civ. P. 56(a)).
- 4
West Virginia's current Rule 56 follows the federal summary judgment rule's (a) through (g) structure, but keeps the older genuine issue standard language rather than adopting the federal rule's genuine dispute phrasing (W. Va. R. Civ. P. 56(a)).
- 5
A motion for summary judgment may be filed any time until 30 days after the close of all discovery, unless a different time is set by court order; the rule sets no minimum waiting period before a party may file (W. Va. R. Civ. P. 56(b)).
- 6
West Virginia has no mandatory separate statement of undisputed material facts. A supporting or opposing memorandum is optional but capped at 20 pages, double-spaced, absent a showing of good cause to exceed that limit (W. Va. Tr. Ct. R. 22.01).
- 7
West Virginia has no Texas-style no-evidence motion; the movant always carries the initial burden. Partial summary judgment is built directly into Rule 56(a). This page covers a motion for summary judgment only, not a motion to dismiss, not a motion to set aside a default judgment, and not a federal court motion, which follows a different rule.
Key decisions before you file
Before you file a Motion for Summary Judgment in West Virginia, a few decisions shape the document: which option to choose and what each one means. The Motion for Summary Judgment guide walks through them.
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West Virginia Requirements for Motion for Summary Judgment
21-Calendar-Day Response Deadline Runs Forward From Service
The respondent must file and serve a memorandum in response within 21 calendar days of service of the motion, counted forward from service rather than backward from a hearing date; this period may be modified by the judicial officer to whom the motion is addressed (W. Va. R. Civ. P. 6(d)(2)).
7-Calendar-Day Reply Deadline
The movant may file and serve a reply memorandum within 7 calendar days of service of the response memorandum. A surreply memorandum may not be filed except by leave of court (W. Va. R. Civ. P. 6(d)(3)).
14-Calendar-Day Hearing Notice Required
A written motion and notice of hearing must be served at least 14 calendar days before the time set for the hearing, though the circuit court is not required to hold a hearing and may decide the motion on the materials submitted (W. Va. R. Civ. P. 6(d)(1); W. Va. Tr. Ct. R. 22.03).
Filing Cutoff: 30 Days After Close of Discovery
A party may file a motion for summary judgment at any time until 30 days after the close of all discovery, unless a different time is set by court order, with no minimum waiting period before filing (W. Va. R. Civ. P. 56(b)).
No Separate Statement of Undisputed Facts Required
West Virginia has no mandatory separate statement of undisputed material facts. Supporting materials such as depositions, documents, affidavits or declarations, stipulations, admissions, or interrogatory answers may be relied on (W. Va. R. Civ. P. 56(c)(1)(A)).
20-Page Limit on Supporting and Opposing Memoranda
A supporting memorandum is optional but, like an opposing memorandum, is capped at 20 pages, double-spaced, absent a showing of good cause to exceed that limit (W. Va. Tr. Ct. R. 22.01).
Affidavits Must Be Made on Personal Knowledge
Any affidavit or declaration supporting or opposing the motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show the affiant is competent to testify to the matters stated (W. Va. R. Civ. P. 56(c)(4)).
Partial Summary Judgment Built Into Rule 56(a)
Rule 56(a) lets a party move for summary judgment on an entire claim or defense, or only part of one, using the same procedure as a full summary judgment motion, with no separately named partial-judgment procedure (W. Va. R. Civ. P. 56(a)).
Rule 56 Tracks Federal Rule 56 Structure
West Virginia's current Rule 56 follows the federal summary judgment rule's (a) through (g) structure, while keeping the older genuine issue standard language rather than the federal genuine dispute phrasing (W. Va. R. Civ. P. 56(a)).