Under the right circumstances, anyway.

The Ninth Circuit joined several sister circuits today in holding that a district court has “discretion to entertain successive motions for summary judgment.” The holding in Hoffman v. Tonnemacher, case no. 08-16166 (9th Cir. Jan. 21, 2010), is not too much of a surprise, given the rule in those sister circuits.

The circumstances under which the court found a proper exercise of discretion here are, however, quite unusual. Defendant did not make its second motion for summary judgment until the case had gone to trial, defendant’s motion at the close of evidence for judgment as a matter of law was denied, the court declared a mistrial after the jury deadlocked, and the court, on defendant’s motion, amended the pretrial conference order to allow defendant to name a new expert witness and file a second motion for summary judgment prior to retrial.

The court finds the district court was within its discretion to hear the second motion largely because all the activity between the first and second motions resulted in an expanded factual record that made the second motion more than just a repeat of the first:

We review for abuse of discretion a district court’s decision to permit a successive summary judgment motion. In this case, the district court did not abuse its discretion by allowing Defendant to file another summary judgment motion after the mistrial. The deposition of an expert witness after the deadline for pretrial summary judgment motions, the testimony at trial, and the addition of a new expert witness after the mistrial expanded the factual record beyond what it had been at the time of the pretrial summary judgment motion.

Lesson: don’t give up on getting summary judgment just because you lost the first time . . . and don’t assume it’s too late just because deadlines have passed. If you have more undisputed facts than you did before, give serious consideration to bringing the motion again.