§ 955.5 (Rule 5) Motions.

(a) Generally. The Board may rule on written and oral motions. Written motions should state the relief sought and legal basis for the motion. At its discretion, the Board may hold oral argument or defer ruling on a motion. A motion filed in lieu of an answer must be filed no later than the date on which the answer is due, unless the Board provides otherwise. Any other dispositive motion should be promptly filed.

(b) Jurisdictional motions. Jurisdictional motions should be promptly filed. The Board may at any time and on its own initiative raise the issue of its jurisdiction.

(c) Motions for summary judgment. In deciding a motion for summary judgment, the Board will be guided by Rule 56 of the Federal Rules of Civil Procedure. The Board may, however, defer ruling on a motion for summary judgment until after an evidentiary hearing. Motions for summary judgment may be filed only when a party believes that, based on uncontested material facts, it is entitled to judgment as a matter of law. In lieu of filing a motion for summary judgment, a party should consider submitting a request to have the appeal decided on the written record without a hearing. See §§ 955.8 and 955.11 (Rules 8 and 11).

(1) Motions for summary judgment must include a Statement of Uncontested Material Facts containing separately numbered paragraphs listing all the material facts on which the moving party bases its motion and as to which it contends there is no genuine dispute. The moving party must include references to affidavits, declarations, and documents relied on to support each material fact.

(2) With its opposition to the motion, the non-moving party must file a separate Statement of Genuine Issues of Material Facts identifying, by paragraph number from the Statement of Uncontested Material Facts, the specific facts the non-moving party claims are genuinely disputed. The non-moving party must state the precise nature of its disagreement and include references to affidavits, declarations, and documents that demonstrate the existence of a genuine dispute. The non-moving party may also propose additional material facts.

(3) The parties must each include a memorandum of law supporting or opposing summary judgment.

(4) The Board will consider a request from the non-moving party for time to obtain affidavits or declarations or to take discovery before filing its response to the motion.

(d) Non-dispositive motions. Non-dispositive motions, such as motions for time extensions and motions to compel, must indicate that the moving party tried to resolve the issue with the other party before filing. See § 955.14 (Rule 14).