Civ Pro - Summary Judgement

Question 1

Summary judgement (?) Purpose

Answer 1

Absence of genuine dispute of material fact

Question 2

Purpose of summary judgement

Answer 2

Resolve claims where there is no factual dispute between parties

Question 3

Who can move for summary judgement

Answer 3

Either party, on all or part of the claim. With or without affidavits.

Question 4

Rule 56a Standard (summary judgement)

Answer 4

When there is no genuine dispute as to any material fact, movant is entitled to judgement as a matter of law

Question 5

Slaven Rule

Answer 5

Had to know of risk to have duty reduce risk of harm

Question 6

Verified vs unverified coplaint

Answer 6

Verified complaint = notarized. otherwise Rule 11, attorney can submit but is not verified (CHECK THIS)

Question 7

Allegations vs admissible evidence

Answer 7

CHECK THIS p 988

Question 8

What is admissible evidence when you have personal knowledge?

Answer 8

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

Question 9

Can a court grant Summary Judgment by default if the opposing party does not respond?

Answer 9

summary judgment cannot be granted by default (rule 56 note)

Question 10

When can you file for summary jugement

Answer 10

any time after 30 days of close of all discovery

Question 11

Judgement independent of motion

Answer 11

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

Question 12

Partial summary judgement rule

Answer 12

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.

Question 13

Standard of proof for summary judhement - burdens

Answer 13

Burden of proof and burden of persuasion

Question 14

Burden of proof =

Answer 14

Burden of proof =
Burden of production (which party must find and present evidence for a motion or at trial)

Question 15

Burden of persuasion

Answer 15

…

Question 16

How do you determine the standard

Answer 16

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

Question 17

Summary judgment requires judge to determine

Answer 17

The standard for burden of proof and burden of persuasion (ADD THIS)

Question 18

What happens when facts are unavailable to nonmovant

Answer 18

Court has discretion to delay when they consider the summary jdgement motion and allow more time to obtain affadvits and take discovery

Question 19

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:

Answer 19

(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.

Question 20

Summary judgement appropriate whwn

Answer 20

there is a genuine dispute of law about the applicable legal standard

Question 21

Standard for a genuine dispute

Answer 21

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

Question 22

…

Answer 22

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

Question 23

which party should court favor in consider evidence

Answer 23

Relevant evidence must be “viewed in the light most favorable to the nonmoving party” (Tolan).

Question 24

SJ compared to other motions

Answer 24

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

Question 25

12b6 compared to R 56

Answer 25

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).

Question 26

Three ways to win a sj motion

Answer 26

Proof of elements motion, Disproof of elements of motion, absence of proof motion

Question 27

Burden of production

Answer 27

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

Question 28

1) Proof-of-the-Elements Motion

Answer 28

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.

Question 29

2) Disproof-of-the-Elements Motion

Answer 29

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

Question 30

Absence-of-Proof Motion (Celotex rule)

Answer 30

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.

Question 31

Celotex rule

Answer 31

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).

Question 32

Celotex rule

Answer 32

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)

Question 33

Celotex rule CHECK THIS

Answer 33

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.

Question 34

Absence of proof analysis

Answer 34

1. Start with elements of the claims.
2. Moving party may “show” the absence of a genuine issue of material fact (cannot just use a conclusory assertion). p. 1013
3. If nonmoving party produces some evidence, the moving party can attack it—i.e., not admissible at trial. p. 1014
4. 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