SUMMARY JUDGMENT UNDER THE FEDERAL RULES WHEN AN ISSUE OF FACT IS PRESENTED

Rule 56 of the Federal Rules of Civil Procedure introduced to federal practice the summary judgment procedure, which had been developed previously in England and several of the states. The scope of rule 56 is the broadest possible, since the rule provides that any party may move for a summary judgment in any type of civil action. Rule 56(c) provides that the court shall grant a motion for summary judgment if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. It is clear from this provision that the movant in order to obtain a summary judgment must show: (1) that there is no genuine issue as to any material fact in the case, and (2) that he is entitled to a judgment in his favor as a matter of law. The second of these requirements has not caused much difficulty; here generally the courts have borrowed a test with which they are familiar, holding that the movant to obtain summary judgment must show that he would be entitled to a directed verdict at trial (if the case were tried to a jury) on the basis of the undisputed facts. It is rather the first of these two requirements which has caused conflict and uncertainty