Change to summary judgment procedures discussed

The General Assembly’s 2019 expansion of summary judgment procedures to allow certain business litigants to use affidavits and depositions to support summary judgment motions does not require opposing parties to file responsive affidavits or contrary deposition testimony to support a general denial of a claim.

Background

The underlying matter is a subcontract dispute between two government contractors, Abacus Technology (Abacus) and Science Applications International Corporation (SAIC). Abacus asserts that under the General Assembly’s recent amendment to summary judgment procedures, once Abacus filed its motion with a supporting declaration, “SAIC’s failure to file responsive affidavits, offer contrary deposition testimony, or otherwise put on evidence, negates any general denials of Abacus’ claims in
pleadings.

“Stated differently, Abacus argues for a motion for summary judgment default judgment rule.”

Different than federal rule

“Federal Rule of Civil Procedure 56(c)(1) requires a party to support or defend a factual assertion in a motion for summary judgment. In fact, failure by a party to do so may lead a court to deem the non-presented fact undisputed for purposes of the motion. …

“However, Virginia does not have a corresponding provision in its summary judgment standard to Rule 56(c) or (e). Virginia’s controlling law is Virginia Code § 8.01-420. The Code is silent compared to the federal rule language requiring factual support at the summary judgment stage and permitting default treatment against a party who fails to bring such support.

“In 2019 Virginia cracked the door on broadening summary judgment practice in the Commonwealth. By a new amendment, Virginia now permits parties to use depositions and affidavits to support or oppose a motion for summary judgment. …

“However, it did not require the use of depositions and affidavits as the federal courts do. The General Assembly must have been advised about how the federal courts behave and could have modeled Virginia’s summary judgment standard exactly like the federal standard, but it did not do so.

“The General Assembly also knew the Supreme Court of Virginia directly held that a party has no duty to develop a factual record in time for an opposing party’s summary judgment motion, and these opinions have never been overruled. … The legislature did not overturn those opinions by statute while it was under the hood of Virginia Code § 8.01-420, amending it in 2019.”

Hypothetical

“Exploring the extent of Abacus’ interpretation of the expansion of Virginia summary judgment procedure, the Court presented Abacus with a hypothetical: a plaintiff driver alleged in his complaint that he had a green light, but that a defendant driver answered that the plaintiff really had a red light – a clear material fact in dispute.

“However, the plaintiff then filed a motion for summary judgment with an attached affidavit swearing that he had a green light. The defendant did not file any contrary
affidavit. The question was whether the plaintiff would be entitled to summary judgment, even though the defendant
categorically denied the key material fact in his answer.

“Abacus responded that the plaintiff of this hypothetical would be entitled to summary judgment because the defendant was required to bring proof and could not rest on his general denial in his answer.

“However, the Court finds no authority for this position or a principled reason to justify it. A sworn allegation in an affidavit is better than an unsworn allegation in a complaint – but barely. The affidavit is subject to perjury – a crime, but one prosecuted as rarely as adultery. While not subject to criminal penalties, a false allegation in a complaint is subject to sanctions. …

“Thus, both make one subject to penalties for dishonesty, begging the question who cares if a party makes an assertion in an affidavit or in a pleading?

“If Abacus wishes to rebut SAIC’s general denial of Abacus’ claims, it would be better suited to skip the self-serving affidavit of its own employee. …

“Abacus needed deposition testimony or affidavits from SAIC rebutting its pleaded claims, not itself. Or, Abacus needed other evidence showing that SAIC does not really dispute Abacus’ claims despite its denials in the pleadings. However, it has neither.”

Ruling

“The Court holds that Virginia’s summary judgment procedure is not as broad as Abacus asserts. The recent 2019 statutory amendments permitting use of affidavits and depositions to support summary judgment motions in cases involving businesses with disputes exceeding $50,000 did not create a rule mandating that a party bring evidence to defend a motion for summary judgment.

“A party may deny a material fact without proving the factual support of its denial pre-trial.

“Virginia summary judgment procedure is little changed by the 2019 amendments to Virginia Code § 8.01-460(C).

“Before the change, parties routinely took depositions, obtained undisputed facts, and then memorialized them in a targeted request for admission which could be used to support a summary judgment motion. …

“Now, a party obtaining favorable deposition testimony can skip the step of the formal request for admission by directly using depositions and affidavits to support its motion. However, Virginia’s summary judgement procedure remains otherwise distinct from federal summary judgment procedure.

“In the present case, the Court finds significant material facts in dispute making summary judgment inappropriate. Plaintiff Abacus’ Motion for Partial Summary Judgment will be denied.”

Abacus Technology v. Science Applications Int’l, Case No. CL-2021-138092, April 6, 2022, Fairfax County Circuit Court (Oblon). Michael A. Warley for Abacus Technology. Edmund M. Amorosi, Stephen D. Knight, Daniel D. Rounds, Daniel H. Ramish for Science Application Int’l. VLW 022-8-022, 9 pp.