Civ Pro - Summary Judgement Flashcards
Summary judgement (?) Purpose
Absence of genuine dispute of material fact
Purpose of summary judgement
Resolve claims where there is no factual dispute between parties
Who can move for summary judgement
Either party, on all or part of the claim. With or without affidavits.
Rule 56a Standard (summary judgement)
When there is no genuine dispute as to any material fact, movant is entitled to judgement as a matter of law
Slaven Rule
Had to know of risk to have duty reduce risk of harm
Verified vs unverified coplaint
Verified complaint = notarized. otherwise Rule 11, attorney can submit but is not verified (CHECK THIS)
Allegations vs admissible evidence
CHECK THIS p 988
What is admissible evidence when you have personal knowledge?
Affidavits must be made on personal knowledge, so you need an “eyeball” or personally perceived the facts to which they attest. p. 988-89, R. 56(c)(4): Affidavits for SJ
Can a court grant Summary Judgment by default if the opposing party does not respond?
summary judgment cannot be granted by default (rule 56 note)
When can you file for summary jugement
any time after 30 days of close of all discovery
Judgement independent of motion
After a reasonable time to respond, the court can grant summary judgement for nonmovant; on grounds not raised by party or sua sponte, consider summary judgement on its own after identifying for the parties material facts no known to be in genuinely in dispute
Partial summary judgement rule
56 (g)Failing to Grant All the Requested Relief
If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact — including an item of damages or other relief — that is not genuinely in dispute and treating the fact as established in the case.
Standard of proof for summary judhement - burdens
Burden of proof and burden of persuasion
Burden of proof =
Burden of proof =
Burden of production (which party must find and present evidence for a motion or at trial)
Burden of persuasion
…
How do you determine the standard
Threshold inquiry= any genuine factual issues (trial needed)?
View in prism of the substantive evidentiary burden at trial.
So clear & convincing standard is relevant. (anderson) Check Anderson
Summary judgment requires judge to determine
The standard for burden of proof and burden of persuasion (ADD THIS)
What happens when facts are unavailable to nonmovant
Court has discretion to delay when they consider the summary jdgement motion and allow more time to obtain affadvits and take discovery
If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required byRule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it; or
(4) issue any other appropriate order.
Summary judgement appropriate whwn
there is a genuine dispute of law about the applicable legal standard
Standard for a genuine dispute
whether “a reasonable jury could find for the non-moving party” not whether the jury would find for them (cts don’t weigh credibility). p.993
…
Judges must find facts to rule on citizenship of parties in 12b1 motions and on contacts with the forum state for 12b2 motions. But in a R. 56 motion, the judge’s fact-finding role is simply to find the existence of a genuine dispute and to leave resolution of fact disputes to the jury. p.994
which party should court favor in consider evidence
Relevant evidence must be “viewed in the light most favorable to the nonmoving party” (Tolan).
SJ compared to other motions
Compare R. 56 Motion for Summary Judgment with R. 12b6 Failure to State a Claim, R. 12c Motion for Judgment on Pleadings, or R. 50a Judgment as a Matter of Law.
One major difference is the timing—
–before discovery (12b6 or 12c),
–after discovery but before trial (56),
–during trial (50). 3. Another major difference is the record upon which the decision is made—
–factual allegations in the pleadings (12b6 or 12c),
–documentary materials (supporting and opposing) that would be admissible at trial (56),
–evidence admitted at trial (50). All are
12b6 compared to R 56
12b6 Motion usually by Defendant
Based on facts alleged in complaint (assumed true) (Iqbal allows ct to disqualify “facts” if legal conclusions)
“failure to state a claim upon which relief can be granted”
R.12(d) says:
12b6 (OR 12c) +
“matters outside the pleadings”
=“treated as [a motion] for summary judgment….” R. 56
Motion by Plaintiff or Defendant
Based on undisputed facts submitted (usually in form of a stipulation of facts, affidavit, or discovery documents)
“no genuine dispute of material fact” and “entitled to judgment as a matter of law”
Purpose: Dispose of cases when facts sufficiently certain that trial should not produce a different result (legal question; no dispute for the fact-finder to adjudicate).
Three ways to win a sj motion
Proof of elements motion, Disproof of elements of motion, absence of proof motion
Burden of production
For prima facie case, Plaintiff must “produce” (find & present) evidence. If Plaintiff fails to produce, Plaintiff loses. (R.56=before trial, or R.50(a) after close of Plaintiff’s evidence or after close of all evidence.) Once in the triable zone, a rational trier of fact (juror or judge) could reasonably find for either party (applying the burden of persuasion). Defendant tries to push facts back to the triable zone for contested facts
1) Proof-of-the-Elements Motion
If the moving party has the burden of proof (bop) at trial on a claim or defense, its bop for SJ is to show that there is no genuine dispute of fact about each and every element of the claim.
This would mostly cover motions by P for main case and by D for affirmative defenses.
2) Disproof-of-the-Elements Motion
A party can support a motion for SJ by disproving a claim against it.
Burden is to “negate the opponent’s claim,” but it is hard to prove a negative. Example: Slaven
Absence-of-Proof Motion (Celotex rule)
After Celotex, the moving party no longer needs to support a motion with evidence to negate facts.
Instead, defendants can simply point out that the plaintiff will not have admissible evidence to prove an element of its claim (absence of proof).
Courts now view SJ more favorably, and the faintest possibility that an opponent (usually Plaintiff) may come up with evidence can’t be used to avoid SJ.
Celotex rule
moving party no longer needs to support a motion with evidence to negate facts.
Instead, defendants can simply point out that the plaintiff will not have admissible evidence to prove an element of its claim (absence of proof).
Celotex rule
Defendant moving for SJ can win either of two ways:
1) “I can prove it wasn’t me” (The “Disproof” std—including supporting affidavits) OR
2) “Plaintiff can’t prove it was me” (The “Absence of Proof” std—with or without supporting affidavits)
Celotex rule CHECK THIS
Party seeking SJ has initial responsibility, but the SJ standard mirrors what would happen at trial under Directed Verdict (R. 50a). Then Plaintiff (party resisting motion for SJ) has to show specifically that there is a genuine issue for trial b/c Plaintiff has burden of production at trial.
Plaintiff cannot just point to weakness in Defendant’s motion; must point to evidence that supports Plaintiff’s claim. BUT need not be admissible evidence.
Absence of proof analysis
- Start with elements of the claims.
- Moving party may “show” the absence of a genuine issue of material fact (cannot just use a conclusory assertion). p. 1013
- If nonmoving party produces some evidence, the moving party can attack it—i.e., not admissible at trial. p. 1014
- Nonmoving party need not have evidence admissible at trial, but burden to show that the material is admissible as presented or to explain the admissible form that is anticipated
