Summary Judgment Framework Of The United States And Pakistan – A Contrast

Summary Judgment Framework Of The United States And Pakistan – A Contrast

As an attorney, the Federal Rules of Civil Procedure [which govern civil proceedings in the United States district courts] never cease to amaze me because of the level of intellect involved in formulating them, especially those pertaining to summary judgment. [A summary judgment (also judgment as a matter of law) is a judgment entered by a court for one party and against another party summarily, i.e. without a full trial. Such a judgment may be issued on the merits of an entire case, or on discrete issues in that case]. Therefore, I have chosen this subject matter in which I would firstly set out the applicable rules of summary judgment of the United States and the manner in which courts apply them. Thereafter, I will mention the procedure followed in Pakistan that is akin to summary judgment. Lastly, I will contrast the summary judgment framework of the United States and Pakistan before concluding that certain summary judgment rules set out in the Federal Rules should be incorporated in the Pakistan Civil Procedure Code 1908 (CPC) to further its objective of disposing of cases summarily where there is no genuine dispute of material facts.

There are three devices under which a litigant could end a lawsuit without a trial under the Federal Rules, and they include:

  • a voluntary dismissal of an action by a plaintiff under Rule 41(a)(1), or by a court order under Rule 41(a)(2);
  • an involuntary dismissal of an action under Rule 41(b); or
  • a motion for summary judgment under Rule 56.

[A dismissal is the disposition of a civil or criminal proceeding or a claim or charge made therein by a court order without a trial or prior to its completion which, in effect, is a denial of the relief sought by the commencement of the action. The legal effect of a dismissal varies depending upon its type. A dismissal, granted by a court that has exercised its discretion in evaluating the particular case before it, operates similarly in civil and criminal actions].

Voluntary Dismissal under the Federal Rules

As to a voluntary dismissal of an action under Rule 41(a)(1) of the Federal Rules, the plaintiff may dismiss the action without a court order. However, a notice of dismissal should be served before the other side serves either an answer or a motion for summary judgment to the plaintiff as provided under Rule 41(a)(1)(A)(i). The dismissal is without prejudice unless otherwise stated in the notice. This means that the plaintiff may institute the same claim in a court. However, if the plaintiff previously dismissed any federal or state court action based on or including the same claim, notice of dismissal operates as an adjudication on the merits under Rule 41(a)(1)(B).

There is a variety of reasons as to why the plaintiff may seek a voluntary dismissal of the action without a court order, including:

(i) to redraft or correct the errors apparent on the face of the complaint;
(ii) to defeat diversity jurisdiction by adding a defendant from the same state;
(iii) to preserve diversity jurisdiction by dropping a defendant from the same state; or
(iv) to avoid adverse determination on the merits of a case.

The rationale for allowing the plaintiff to voluntarily dismiss the action without a court order is that the defendant would not have expended a lot of resources at that stage of litigation since he or she would not have filed an answer or a motion of summary judgment. Thus, there would be no prejudice caused to the defendant if the action is dismissed without a court order.

However, in the event that the defendant has filed an answer or a motion for summary judgment, the plaintiff can file a motion for a voluntary dismissal under Rule 41(1)(2) of the Federal Rules. In such a case, the court has discretion to grant such a motion. In this regard, the court will determine the legal prejudice caused to the other side if the motion is granted. More specifically, the court will see several factors, including the stage of litigation and resources expended by the other side. The court may pass an order setting out the condition of dismissal that will have the effect of mitigating the legal prejudice to the non-movant.

Involuntary Dismissal under the Federal Rules

In regard to the second device available to a party to end the lawsuit without a trial, which is an involuntary dismissal of an action under Rule 41(b) of the Federal Rules, a defendant may move to dismiss the action or any claim against it if the plaintiff fails to prosecute or comply with the Federal Rules or a court order. As I understand, the rationale for an involuntary dismissal is that the inactive cases on the court’s docket should be dismissed to ease the burden of the court. There is a maxim of equity which says, “Equity aids the vigilant, not the indolent.” The effect of dismissal is that it operates as an adjudication on the merits and hence, bars a fresh case on the same claim. Therefore, the idea is to deter the plaintiff from being inactive.

Summary Judgment under the Federal Rules

The third device available to a party to end the lawsuit is by filing a motion for summary judgment under Rule 56(a) of the Federal Rules, which provides that:

“A party may move for summary judgment identifying each claim or defense—or the party of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on record the reasons for granting or denying the motion.” (Emphasis supplied)

From a plain reading of Rule 56(a) of the Federal Rules, it appears that the movant has the burden to show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Therefore, the basic purpose of summary judgment is to determine whether there is a genuine dispute. If not, then there is no point of going to trial and wasting resources just to achieve the same result. It may be noted that either a plaintiff or a defendant can file such a motion. If the plaintiff files a motion for summary judgment, then the plaintiff must present undisputed facts in order to prove each essential element of the claim. This is called proof-of-the-elements. However, in the event that a defendant files a motion for summary judgment, he or she has two options:

(i) to disprove an element of the plaintiff’s claim by showing affirmative evidence; or
(ii) to show that there is no evidence in the record to support a judgment for the non-moving party.

Summary Procedure under the CPC

Now adverting to the procedure in Pakistan pertaining to summary judgment, the CPC does not provide for summary judgment. However, it does provide for a summary procedure under its Order 37 for certain classes of suits, including cases based on negotiable instruments. The basic objective under the summary procedure is to fast-track the proceedings by not providing the defendant a right to file a written statement (which is known as an ‘answer’ in the United States under the Federal Rules). In fact, the defendant has to seek the court’s leave to defend the suit. In this context, the defendant may file an affidavit or a leave-to-defend application setting out a substantial defense to the plaintiff’s claim. Thereafter, the court exercising wide discretion decides on the defendant’s affidavit or leave-to-defend application by determining whether the defendant has disclosed a substantial defense to the plaintiff’s claim. If the defendant has raised a frivolous defense, then the court is likely to refuse leave-to-defend and render a judgment accordingly. If, however, the defendant is able to show a substantial defense, then the court would grant leave-to-defend and the matter will proceed as a matter of course.

Contrasting the Summary Judgment Framework of the U.S. and Pakistan

As an attorney, I can see striking differences in the procedural rules of both jurisdictions, i.e. the United States and Pakistan, while the basic objective remains the same, which is to dispose of a case summarily. Firstly, the most important difference is that under the Federal Rules, the plaintiff could dismiss the action without a court order by merely filing a notice prior to the defendant filing an answer or a motion of summary judgment. In contrast, under the CPC, the plaintiff is not allowed to dismiss the action without the court’s leave at any stage of the proceedings.

Secondly, under the Federal Rules, the plaintiff could seek a court order to dismiss the action even after filing of the answer by the defendant. The court considers the legal prejudice to the other side, which is the resources expended and the stage of litigation of a case. While under the CPC, the plaintiff could file an application under Order 23, Rule 1 seeking withdrawal of a case at any stage, the reasons for allowing the application by courts in Pakistan are different as opposed to reasons considered by the courts in the United States under the Federal Rules. As stated above, the courts in the United States will see legal prejudice in terms of time and resources expended by the other side, while in Pakistan, the courts -in considering to grant permission to withdraw the case- will see whether the suit will fail by reason of some formal defect or whether there are other sufficient grounds for the plaintiff to institute a fresh suit.

Thirdly, in relation to an involuntary dismissal under the Federal Rules, an action could be dismissed if the plaintiff fails to prosecute or comply with the Federal Rules or a court order. In such an event, the dismissal will operate as an adjudication on the merits. However, Rule 41(b) of the Federal Rules excludes involuntary dismissals for lack of venue, improper venue, or failure to join a party. Under the CPC, a court either on its own or based on the defendant’s application may dismiss a case if the plaintiff fails to prosecute (and not for any other reason). However, under the CPC, no exception is set out in relation to a dismissal of an action for non-prosecution and hence, the plaintiff will be barred from filing a new case on the same claim even if the court lacks jurisdiction.

Lastly and more significantly, while summary judgment is provided under the Federal Rules, the CPC does not cater to summary judgment. Instead, the CPC caters to the summary procedure and that only for certain classes of cases, namely suits for recovery of debt and suits based on negotiable instruments, including bills of exchange and promissory notes.

Conclusion

The differences in terms of the procedure relating to fast-tracking the proceedings intrigued me to draw a contrast between the applicable rules of both jurisdictions, i.e. the United States and Pakistan. There are several striking differences between both jurisdictions, including the fact that under the Federal Rules, a plaintiff could voluntarily dismiss the action without a court order, or seek summary judgment as a matter of law for any claim where there is no genuine dispute, whereas the CPC does not cater to such a situation. I personally believe that the voluntary dismissal of an action without a court order and summary judgment under Rule 56 of the Federal Rules should be incorporated in the CPC as well, so as to dispose of cases summarily in which there is no genuine dispute of material facts. This could be one of the ways to tackle the problem of a huge backlog of cases that the courts in Pakistan are being confronted with, and which is adversely impacting the litigants as well. Therefore, the incorporation of such Federal Rules in the CPC will help the cause of the judiciary in a significant manner.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Zohaib Ahmed

The writer has pursued an LL.M degree from the University of Maryland Carey School of Law and has worked as a Senior Associate at Orr, Dignam & Co. for eight years with a focus on corporate law, banking and finance as well as civil litigation and arbitration. Prior to that, he graduated from the University of London with LL.B (Honors) and then completed the Bar Vocation Course from City Law School in 2007. He also holds a bachelors degree in Arts and a masters degree in Political Science.



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3 Comments

  1. Hassan said:

    My friend the federal rules you shared regarding dismissal of claim are not exactly same as we have in CPC but there are summary dismissal provided in O.7 then judgment on admissions in O.12. Withdrawal of suits in O.23. Have a look into these provisions too. A provision of law which caters with summary judgment is O.12 and summary trial of O.37. New amendments proposed by IHC lately, have a look into these as well so u have better perspective. Regards

    • Zohaib Ahmed said:

      With all due respect, your comments set out above are highly misplaced except for the fact that Islamabad High Court (IHC) has recently proposed some amendments in the Civil Procedure Code (CPC) that has not yet become law. Firstly, provisions of the CPC, i.e. Order 37 thereof pertaining to the summary procedure have been discussed in the article. Please see under the subheading ‘Summary Procedure under the CPC.’ Secondly, Order 23 of the CPC has also been discussed in the article. Please see under the subheading ‘Contrasting the Summary Judgment Framework of the U.S. and Pakistan.’ Thirdly, as to your comment that “there are summary dismissal[s] provided in O.7 [of the CPC],” please note that Order 7, Rule 11 sets out the grounds for rejection of a plaint, which is essentially considered as a defense that should be raised at the outset and thus, it has no relevance to the summary judgment procedure. Please see Rule 12(b)(6) of the Federal Rules of Civil Procedure (Federal Rules) for reference purposes. Fourthly, as to your further comment that “there are summary dismissal[s] provided . . . then judgment on admission in O. 12 [of the CPC],” please note that this procedure is generally known as ‘judgment on the pleadings.’ In simpler words, it is obtaining a judgment without a trial since the decision is based upon pleadings. Please see Rule 12(c) of the Federal Rules for further clarification. Kindly note that in the event the court considers matters outside the pleadings, it would then become a summary judgment motion under the Federal Rules. Lastly, as to your last comment that new amendments have been proposed by IHC lately, kindly note that this article was written prior to the amendments proposed by IHC which are now available to the public. Having said that, it further strengthens the point, as mentioned in the article, the CPC does not cater to summary judgment. In any event, the same has not yet become law. If you have any insightful comments, I will be glad to address them.

      • Hassan said:

        You have taken my comment as criticism, whereas, I have provided an insight to the procedure already provided in CPC 1908. Any how Order 7, R.11 provides for rejection of plaint, therefore, court either on application from defendant or on its own motion can reject a plaint and such an order is called judgment against which party can avail appropriate remedy like Appeal and Revision. Such an order is a summary judgment, if not specific words like “Summary” used but in essence it is summarily dismissing a claim by the court. Further any civil suit can be summarily decided on the basis of available record, even if the plaintiff fails to produce evidence or trial court is under duty to give issue wise finding in such like circumstances. Moreover, a plaintiff can withdraw his suit subject to with court permission or without court permission. If court declines permission, the party may decide to proceed further and get decision on merits without even recording of evidence. lastly judgment on admissions does not require recording of evidence and can be made summarily. If you are looking for a specific word “summary” in CPC, then I agree there is no such word as summary, but if you look at the affect and deciding any case in summary manner, then there are modes available. Lastly, I mentioned proposed amendments, never suggested any where that such proposed amendment have been made law. With all due respect, this article is good attempt at comparative academic discussion or opinion writing, but unfortunately, clearly lacks a legal practitioners perspective, specifically in Pakistani jurisdiction. However, it definitely invites discussion on summary procedures. Regards

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