Section 710IAC4-12-13. Summary judgment

   (a) A party may, at any time fifteen (15) days after the commencement of an action, move for a summary judgment in the party's favor as to all or any part of the issues in a proceeding. The motion:

(1) may be supported with affidavits or other evidence permitted under this section; and

(2) must set forth specific facts showing that there is not a genuine issue of fact in dispute.

  (b) The motion and any supporting affidavits shall be served in accordance with the Indiana Rules of Trial Procedure.

(1) An adverse party shall have thirty (30) days after service of the motion to serve:

(A) a response;

(B) any opposing affidavits; or

(C) other evidence.

(2) The commissioner shall conduct a hearing on the motion, which shall be held not less than ten (10) days after the time for filing the response. The commissioner may direct the parties to give oral argument on the motion.

(3) The judgment sought shall be rendered forthwith if the:

(A) pleadings;

(B) depositions;

(C) answers to interrogatories;

(D) admissions on file;

(E) affidavits;

(F) testimony; or

(G) other documents, if any;

show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law.

(4) A summary judgment may be rendered upon fewer than all the issues or claims (including the issue of penalties alone) although there is a genuine issue as to a violation of law or liability, as the case may be. A summary judgment:

(A) upon fewer than all the issues involved in a proceeding; or

(B) with respect to fewer than all the claims or parties;

is not a final order.

(5) The commissioner shall designate the issues or claims upon which the commissioner finds no genuine issue as to any material facts.

(6) Summary judgment may not be granted as a matter of course because the opposing party fails to offer opposing affidavits or other evidence, but the commissioner shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence.

(7) If it appears from the affidavits or other evidence, of a party opposing the motion, that the party cannot for reasons stated present by affidavit or other evidence facts essential to justify the party's opposition, the commissioner shall make any order that is just.

  (c) If, on motion under this section, no order is rendered upon the whole case or for all the relief asked and a hearing is necessary, the commissioner at the hearing on the motion, by examining the pleadings or the evidence before the commissioner and by interrogating counsel, shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. The commissioner shall make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing further proceedings in the action as are just. Upon the hearing of the action, the facts specified are established, and the hearing shall be conducted accordingly.

  (d) Supporting and opposing affidavits shall:

(1) be made on personal knowledge;

(2) set forth facts that are admissible in evidence; and

(3) show affirmatively that the affiant is competent to testify to the stated matters.

  (e) The commissioner may permit affidavits to be supplemented or opposed by:

(1) depositions;

(2) answers to interrogatories;

(3) further affidavits;

(4) testimony of witnesses; or

(5) other documents.

  (f) If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party's pleadings as a response to the motion. The adverse party shall:

(1) respond to the motion with affidavits or other evidence permitted under this section; and

(2) set forth specific facts showing that there is a genuine issue in dispute.

If the adverse party does not respond as required by this subsection, the commissioner may enter summary judgment against the adverse party. (Securities Division; 710 IAC 4-12-13; filed Jun 28, 2010, 2:36 p.m.: 20100728-IR-710100044FRA; readopted filed May 12, 2016, 1:47 p.m.: 20160608-IR-710160136RFA)