75 Ohio St. 3d 280 | Ohio | 1996
The sole issue in this appeal involves the standards for granting summary judgment when the moving party asserts that the nonmoving party has no evidence to establish an essential element of the nonmoving party’s case. In particular, the issue certified to this court by the Court of Appeals for Montgomery County is, “[m]ay a court grant summary judgment when neither the movant nor the non-movant provides evidentiary materials demonstrating that there are no material facts in dispute and the movant is entitled to judgment as a matter of law?” (Emphasis sic.) Resolution of this issue requires an interpretation of Civ.R. 56, a detailed review of Celotex, supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, and an examination of our holding in paragraph three of the syllabus in Wing, supra, 59 Ohio St.3d 108, 570 N.E.2d 1095.
In Celotex, supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, Myrtle Catrett (“Catrett”), administrator of the estate of her deceased husband, Louis H. Catrett, filed a wrongful death action in the United States District Court for the District of Columbia against fifteen named corporations. In the complaint, Catrett alleged that her husband’s death had been caused by exposure to products containing asbestos that had been manufactured or distributed by the defendants. Several of the defendants, including the Celotex Corporation (“Celo-tex”), filed motions for summary judgment. In support of its motion, Celotex argued that summary judgment was proper because Catrett had “ ‘failed to produce evidence that any [Celotex] product * * * was the proximate cause of the injuries alleged within the jurisdictional limits of [the District] Court.’ ” Id. at 319-320, 106 S.Ct. at 2551, 91 L.Ed.2d at 272. In particular, Celotex noted that Catrett had failed to identify, in answering interrogatories specifically requesting such information, any witnesses who could testify about the decedent’s exposure to Celotex’s asbestos products. Catrett responded to the motion for summary judgment and produced three documents to counter Celotex’s assertions. The three documents included a transcript of a deposition, a letter from an official of one of the decedent’s former employers whom Catrett planned to call as a witness at trial, and a letter from an insurance company to Catrett’s attorney. These documents tended to establish that the decedent had been exposed to Celotex’s asbestos products in Chicago in 1970 and 1971. Catrett claimed that the three documents demonstrated that there was a genuine and material factual
The district court in Celotex granted the motion for summary judgment, finding that there was “‘no showing that the plaintiff was exposed to the defendant Celotex’s product in the District of Columbia or elsewhere within the statutory period.’ ” Id, 477 U.S. at 320,106 S.Ct. at 2551, 91 L.Ed.2d at 272. On appeal, the United States Court of Appeals for the District of Columbia, in a split decision, reversed the judgment of the district court. Catrett v. Johns-Manville Sales Corp. (C.A.D.C.1985), 756 F.2d 181. The court of appeals’ majority stated, in part:
“We need not, however, reach the evidentiary issue [raised by Celotex that none of the evidence produced by Catrett in response to the motion for summary judgment would have been admissible at trial], inasmuch as defendant’s [Celo-tex’s] moving papers were patently defective on their face, rendering inappropriate the grant of summary judgment on the record as it stood before the District Court. Celotex offered no affidavits, declarations or evidence of any sort whatever in support of its summary judgment motion. To the contrary, Celotex’s motion was based solely on the plaintiffs purported failure to produce credible evidence to support her claim. While Celotex may have faced difficulty, to be sure, in ‘proving the negative’ that plaintiffs decedent had not been exposed to its products, * * * [Celotex] made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion. * * * [T]hat undisputed failure renders its motion fatally defective.” (Emphasis sic and footnotes omitted.) Catrett, supra, 756 F.2d at 184.
In Celotex, supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, the United States Supreme Court reversed the judgment of the court of appeals. Justice (now Chief Justice) Rehnquist authored the lead opinion in Celotex, which mustered the full support of Justices Marshall, Powell and O’Connor. Justice White concurred separately. Id at 328-329, 106 S.Ct. at 2555, 91 L.Ed.2d at 277 (White, J., concurring). Justice Brennan, joined by then Chief Justice Burger and Justice Blackmun, dissented. Id at 329-337, 106 S.Ct. at 2555-2560, 91 L.Ed.2d at 277-282 (Brennan, J., dissenting). Justice Stevens also filed a separate dissenting opinion. Id at 337-339, 106 S.Ct. at 2560-2561, 91 L.Ed.2d at 283-284 (Stevens, J., dissenting). Virtually all of the Justices agreed that the court of appeals had erred in concluding that Fed.R.Civ.P. 56 requires a defendant seeking summary judgment to produce affirmative evidence disproving (“negating”) the plaintiffs case. We quote, at length, from the lead opinion in Celotex, because, with all due respect to the United States Supreme Court, its
“The majority of the Court of Appeals held that petitioner’s [Celotex’s] summary judgment motion was rendered ‘fatally defective’ by the fact that petitioner ‘made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion.’ * * * [Catrett, supra, 756 F.2d at 184] (emphasis in original). According to the majority, Rule 56(e) of the Federal Rules of Civil Procedure, and this Court’s decision in * * * [Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142, 155], establish that ‘the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact.’ * * * [Catrett, supra, 756 F.2d at 184] (emphasis in original; footnote omitted). The majority therefore declined to consider petitioner’s argument that none of the
“We think that the position taken by the majority of the Court of Appeals is inconsistent with the standard for summary judgment set forth in Rule 56(c) of the Federal Rules of Civil Procedure. Under Rule 56(c), summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, 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.’ In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. * * *
“Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ’ which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim. On the contrary, Rule 56(c), which refers to ‘the affidavits, if any ’ (emphasis added), suggests the absence of such a requirement. And if there were any doubt about the meaning of Rule 56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that claimants and defendants, respectively, may move for summary judgment ‘with or without supporting affidavits ’ (emphasis added). The import of these subsections is that, regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.
“Respondent [Catrett] argues, however, that Rule 56(e), by its terms, places on the nonmoving party the burden of coming forward with rebuttal affidavits, or
“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred.
“The Court of Appeals in this case felt itself constrained, however, by language in our decision in Adickes * * * [supra, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142]. There we held that summary judgment had been improperly entered in favor of the defendant restaurant in an action brought under 42 U.S.C. § 1983. In the course of its opinion, the Adickes Court said that ‘both the commentary on and the background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party * * * to show initially the absence of a genuine issue concerning any material fact.’ Id., at 159 [90 S.Ct. at 1609, 26 L.Ed.2d at 155]. We think that this statement is accurate in a literal sense, since we fully agree with the Adickes Court that the 1963 amendment to Rule 56(e) was not designed to modify the burden of making the showing generally required by Rule 56(c). It also appears to us that, on the basis of the showing before the Court in Adickes, the motion for summary judgment in that case should have been denied. But we do not think the Adickes language quoted above should be construed to mean that the burden is on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact, even with respect to an issue on which the nonmoving party bears the burden of proof. Instead, as we have explained, the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district
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“In this Court, respondent’s [Catrett’s] brief and oral argument have been devoted as much to the proposition that an adequate showing of exposure to petitioner’s asbestos products was made as to the proposition that no such showing should have been required. But the Court of Appeals declined to address either the adequacy of the showing made by respondent in opposition to petitioner’s motion for summary judgment, or the question whether such a showing, if reduced to admissible evidence, would be sufficient to carry respondent’s burden of proof at trial. We think the Court of Appeals with its superior knowledge of local law is better suited than we are to make these determinations in the first instance.
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“The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion.” (Emphasis added in part and footnotes omitted.) Celotex, supra, 477 U.S. 317, 321-328, 106 S.Ct. 2548, 2551-2555, 91 L.Ed.2d 265, 272-277.
Justice White, who provided the fifth and deciding vote in Celotex, stated, in a separate concurring opinion:
“I agree that the Court of Appeals was wrong in holding that the moving defendant must always support his motion with evidence or affidavits showing the absence of a genuine dispute about a material fact. I also agree that the movant may rely on depositions, answers to interrogatories, and the like, to demonstrate that the plaintiff has no evidence to prove his case and hence that there can be no factual dispute. But the movant must discharge the burden the Rules place upon him: It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case.
“A plaintiff need not initiate any discovery or reveal his witnesses or evidence unless required to do so under the discovery Rules or by court order. Of course, he must respond if required to do so; but he need not also depose his witnesses or obtain their affidavits to defeat a summary judgment motion asserting only that he has failed to produce any support for his case. It is the defendant’s task to negate, if he can, the claimed basis for the suit.
“Petitioner Celotex does not dispute that if respondent [Catrett] has named a witness to support her claim, summary judgment should not be granted without Celotex somehow showing that the named witness’ possible testimony raises no genuine issue of material fact. * * * It asserts, however, that respondent has
Again, with the utmost respect to the United States Supreme Court, we find the court’s decision in Celotex to be perplexing. As Justice Brennan so ably recognized in his dissenting opinion in Celotex, “[t]he Court clearly rejects the ruling of the Court of Appeals that the defendant [Celotex] must provide affirmative evidence disproving the plaintiffs case. Beyond this, however, the Court has not clearly explained what is required of a moving party seeking summary judgment on the ground that the nonmoving party cannot prove its case.” (Footnote omitted.) Celotex, supra, 477 U.S. at 329, 106 S.Ct. at 2556, 91 L.Ed.2d at 277 (Brennan, J., dissenting). Justice Brennan went on to suggest that Celotex had failed to meet its burden of establishing that there were no genuine issues of material fact concerning the essential elements of Catrett’s claims and that, therefore, summary judgment was improper. Id., 477 U.S. at 329-337, 106 S.Ct. at 2555-2560, 91 L.Ed.2d at 277-282 (Brennan, J., dissenting). He also questioned what the court of appeals was supposed to do on remand, given that Justice White, who provided the court’s fifth vote in Celotex, “plainly believes that the Court of Appeals should reevaluate whether the defendant met its initial burden of production.” Id. at 329, 106 S.Ct. at 2556, 91 L.Ed.2d at 277, fn. I.
Our reading of Celotex and of Civ.R. 56
“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” (Emphasis added.)
Accordingly, we hold that a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmov-ing party has no evidence to support the nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.
“While Celotex [supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265] says that a moving party does not have to support its motion with affidavits negating the opponent’s claims, Celotex also plainly states that ‘a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.’ Celotex, supra, at 323 [106 S.Ct. at 2553, 91 L.Ed.2d at 274].
“Accordingly, even Celotex makes clear that a party moving for summary judgment has certain obligations that must be met. These obligations are set forth in Massaro v. Vernitron Corp. (D.Mass.1983), 559 F.Supp. 1068. Massaro held that the party seeking summary judgment ‘ * * * bears the burden of affirmatively demonstrating that, with respect to every essential issue of each count in the complaint, there is no genuine issue of fact.’ Massaro, supra, at 1073 (citing Mack v. Cape Elizabeth School Board [C.A.1, 1977], 533 [sic 553] F.2d 720, 722). The moving party bears this burden ‘ * * * even with regard to issues on which plaintiffs * * * would have the burden of proof should the case go to trial.’ Massaro, supra, at 1073, citing Ramsey [sic, Ramsay] v. Cooper (C.A.1, 1977), 553 F.2d 237, 240-241, fn. 8; Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144, 159-161 [90 S.Ct. 1598, 1609-1610, 26 L.Ed.2d 142, 155-156]. See, also, Bird v. Zimmerman Fur Institute, Inc. (S.D.Ohio 1968), 294 F.Supp. 202.
“The requirement that a party seeking summary judgment disclose the basis for the motion and support the motion with evidence is well founded in Ohio law. ‘The burden of showing that no genuine.issue exists as to any material fact falls upon the moving party in requesting a summary judgment.’ Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 26 O.O.2d 206, 207, 196 N.E.2d 781, 783-784. Reading the requirement of Harless, supra, in conjunction with Civ.R. 56 and 7(B)(1), it can readily be seen that the moving party must state specifically which areas of the opponent’s claim raise no genuine issue of material fact and such assertion may be supported by affidavits or otherwise as allowed by Civ.R. 56(C).
“It should be noted that placing the above-mentioned requirements on the moving party does not mean the nonmoving party bears no burden. Requiring that the moving party provide specific reasons and evidence gives rise to a-reciprocal burden of specificity for the non-moving party [outlined in Civ.R. 56(E) ].” (Footnote omitted.)
In the case at bar, SEMC served appellees -with a request for admissions and for production of documents. Specifically, SEMC sought admissions from appel-lees that they possessed no documents or other evidence to support the negligent credentialing claim. In the event that appellees denied the requests for admissions, SEMC sought production of all documents supporting the denials. Appel-lees denied that they possessed no documents or other evidence to substantiate the negligent credentialing claim, and entered specific objections to the requests for production of documents. SEMC never moved to compel production of the requested documents. Rather, SEMC moved for summary judgment, urging that appellees had no evidence to establish essential elements of the negligence cause of action. To support the motion, SEMC relied on appellees’ responses to the request for admissions and for production of documents as proof that appellees had no evidence to substantiate the negligence claims.
The trial court granted summary judgment in favor of SEMC on other (unrelated) grounds. However, on appeal, the court of appeals addressed and rejected SEMC’s arguments that SEMC was entitled to summary judgment on the basis that appellees lacked evidence to prove the negligent credentialing claim. The court of appeals found that summary judgment on this issue was not warranted, since neither SEMC nor appellees had submitted any evidence demonstrating the lack of a genuine issue of material fact concerning the essential elements of the negligence credentialing cause of action. We agree with the court of appeals’ conclusion in this regard.
We find that appellees’ responses to the request for admissions and for production of documents fail to demonstrate that appellees had no evidence to prove the essential elements of the negligent credentialing cause of action. Indeed, we find that appellees’ responses to the request for admissions and for
The question certified by the court of appeals in this case is, “[m]ay a court grant summary judgment when neither the movant nor the non-movant provides evidentiary materials demonstrating that there are no material facts in dispute and the movant is entitled to judgment as a matter of law?” (Emphasis sic.) We answer that question in the negative. As stated in our discussion supra, the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim. The “portions of the record” to which we refer are those evidentiary materials listed in Civ.R. 56(C), such as the pleadings, depositions, answers to interrogatories, etc., that have been filed in the case. Here, SEMC could point to no such evidence clearly demonstrating that appellees lacked proof of the negligence claim. Where, as here, the moving party does not satisfy its initial burden under Civ.R. 56, the motion for summary judgment must be denied.
We also agree, in part, with the ultimate conclusion reached by the Court of Appeals for the Ninth District in Miller, supra, Summit App. No. 16493, unreported, 1994 WL 511043. In Miller, the plaintiff, Dorothy Miller, was a school bus driver who applied for re-certification for the 1990-1991 school year. As part of the certification process, Miller submitted to a medical examination, the results of which revealed that Miller suffered from high blood pressure and heart problems. Miller was denied re-certification. She then submitted to a second medical examination (a medical re-examination) and was found unfit to be a school bus driver. Accordingly, Miller was not re-hired for the 1990-1991 school year.
Miller sued the Summit County Board of Education, the Manchester Local School District Board of Education, and others, alleging that the defendants had breached Miller’s contract of employment by not re-hiring her. In the complaint, Miller conceded that she had received two separate medical examinations and that both doctors had concluded she did not meet the physical requirements for
In Miller, the court of appeals affirmed the judgment of the trial court. The Miller court observed that Ohio Adm.Code 3301-83-07 establishes the physical qualifications for school bus drivers and the procedures for ascertaining medical fitness. The court specifically cited Ohio Adm.Code 3301-83-07(F)(4), which provides that the results of a medical re-examination “shall be final.” Judge (now Justice) Cook, writing for the court in Miller, stated, in part:
“We find that the trial court acted appropriately in granting Appellees’ motion for summary judgment. In her complaint, Miller conceded that she received two separate medical examinations and that both doctors concluded that she did not meet the physical requirements for driving a school bus. Miller claims that the two medical examinations she received were substandard. However, she produced no evidence cognizable under Civ.R. 56 showing that she was entitled to a third medical examination and that the results of this examination could be used to contradict the results of the prior examinations. Ohio Adm.Code 3301-83-07(A) states that the physical qualifications must be certified by ‘a proper medical authority.’ Ohio Adm.Code 3301-83-07(B) further requires each county board of education to appoint ‘[o]ne or more licensed doctors of medicine or osteopathy’ annually. These sections ensure that prospective bus drivers will be examined by competent medical personnel. Miller does not argue that either of the two doctors who examined her were not proper medical authorities. Accordingly, we find that the trial court was correct in granting Appellees’ [the defendants’] motion for summary judgment as to Miller’s declaratory judgment, concluding that she had no right to submit results from a third medical examination in order to advance her breach of contract claim.
“Although Miller contests two issues pertaining to Appellees’ affidavits, these arguments do not warrant reversing summary judgment for Appellees. Even if Appellees’ affidavits were defective or non-existent, a party who moves for summary judgment need not support its motion with affidavits, provided that the party does not bear the burden of proof on the issues contained in the motion. Appellees, therefore, are still entitled to summary judgment because they would not bear the burden of proof at trial.” Id. at 4-5, 1994 WL 511043, at 2.
We read Miller as standing for the proposition that summary judgment may be rendered where the pleadings and the arguments of the party seeking summary
For the foregoing reasons, we affirm the judgment (but not necessarily the reasoning) of the Court of Appeals for Montgomery County on the matter certified for our review.
Judgment affirmed.
. Fed.R.Civ.P. 56, which is similar to Ohio Civ.R. 56, provides, in part:
“(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof.
“(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof.
“(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
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“(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.”
. Ultimately, on remand from the United States Supreme Court’s decision in Celotex Corp. v. Catrett (1986), 477 U.S. 317,106 S.Ct. 2548, 91 L.Ed.2d 265, the United States Court of Appeals for the District of Columbia once again held that the district court had erred in granting summary judgment in favor of Celotex. See Catrett v. Johns-Manmlle Sales Corp. (C.A.D.C.1987), 826 F.2d 33. The United States Supreme Court denied further review. Celotex Corp. v. Catrett (1988), 484 U.S. 1066,108 S.Ct. 1028, 98 L.Ed.2d 992.
. Civ.R. 56 provides, in part:
“(A) For party seeking affirmative relief. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of the time permitted under these rules for a responsive motion or pleading by the adverse party, or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court.
“(C) Motion and proceedings thereon. The motion shall be served at least fourteen days before the time fixed for hearing. The adverse party prior to the day of hearing may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
“(B) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
“(F) When affidavits unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.” '
. However, we note, in passing, that we do not agree with the court of appeals’ legal analysis in this case insofar as certain portions of the court of appeals’ opinion imply that SEMC was obligated under Civ.R. 56 to set forth evidence that it was not negligent.
. Where there are no evidentiary materials other than the pleadings, and the pleadings themselves demonstrate that the claimant has no cause of action, a motion may be made for judgment on the pleadings. See Civ.R. 12(C).