Short answer. You can move at any time. Section 2 lets a party against whom a claim, counterclaim, or cross-claim is asserted, or against whom declaratory relief is sought, move at any time — supported by affidavits, depositions, or admissions — for summary judgment in their favor as to all or any part of the claim.
What the law says
A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his or her favor as to all or any part thereof.
Rule 35, Section 2 — Summary judgment for defending party. Read the full provision →
Who can use this provision
It covers parties on the defensive side broadly: those facing a claim, a counterclaim, a cross-claim, or a request for declaratory relief — not just defendants in the traditional sense. A plaintiff who is himself the target of a counterclaim, for instance, can invoke this same provision against that counterclaim, which is why the rule speaks generically of the party against whom something is asserted rather than naming defendants specifically.
The timing is flexible
The motion may be made 'at any time,' without a narrower window, giving a defending party more flexibility to raise the issue whenever they believe the record shows there is nothing genuinely in dispute. This contrasts with a claimant's motion for summary judgment, which under this same rule must wait until after the answer is filed — a defending party already has an answer on file by definition, so no comparable waiting period applies here.
What must support the motion
Supporting affidavits, depositions, or admissions must accompany the motion — the same categories of proof used elsewhere in the discovery rules — showing there is no genuine factual dispute requiring trial. A bare motion asserting that the plaintiff's case lacks merit, without this kind of evidentiary support, does not meet the requirement; the moving party has to actually demonstrate, through admissible proof, that the opposing party cannot raise a genuine issue for trial.
Partial relief is available
The motion can seek summary judgment as to all or only part of the claims against the moving party, allowing a defending party to eliminate part of a case even where other parts genuinely need to go to trial. A defendant facing several causes of action might, for example, show that one of them is legally or factually baseless while leaving the others to be resolved through the ordinary trial process, narrowing the scope of what actually needs to be litigated.
Related provisions
- Rule 35, Section 2 — Summary judgment for defending party
- Rule 35, Section 4 — Case not fully adjudicated on motion