summary judgement class 9 Flashcards
review of motions practice
Motions at Pleading Stage
Dismissal under Rule 12(b)
Judgment on the Pleadings 12(c)
Also, amendments and third-party practice
Motions During Discovery
Motions to Compel or for a Protective Order
Motion for Sanctions
Motions at the close of discovery (usually)
Summary Judgment
rule 56 summary judgement
A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which SJ is sought. The court shall grant SJ if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. . . .
Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for SJ at any time until 30 days after the close of all discovery. [But see (d) and (e) – if motion made too early, court may allow more time]
2 general circumstances for SJ
- There is no real dispute as to the underlying facts, just as to whether those facts mean that the D is liable.
Normile v. Miller: Plaintiffs moved for SJ on the issue of whether they had a contract for sale of property from Miller. Trial court denied motion, granted J to D.
Dohrmann v. Swaney: D moved for SJ on issue of whether there was insufficient consideration for contract giving P her apartment and $4 million. Trial court granted motion, appellate court affirmed.
There is a dispute as to the facts, but one party says the other does not have the evidence to back up their version.
Houchens, Celotex
56 c procedures
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, inc. depositions, documents, ESI, affidavits or declarations, stipulations, admissions, interrogatories, etc. or
(B) Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence
(3) Court may consider materials not cited
(4) Affidavit or declaration must be made on personal knowledge, set out facts that would be admissible in evidence, and show competence to testify on the matters stated.
SJ standard
What does it mean to show “no genuine dispute of material fact”?
Facts v. law
Does it matter whether you are the plaintiff or the defendant? Whether you have the burden of proof?
Put yourself in the position of trial: what facts would your opponent have to show to win? Argue that they cannot make that showing.
Alternatively, what facts would you have to show to win? Argue that your opponent has nothing to counter those facts. (This is harder).
standard for SJ
Standard for SJ: “Rule 56 mandates the entry of SJ, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Supreme Court decision on SJ
Rule 56 mandates the entry of SJ, after adequate time for discovery, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.
How did the court of appeals err in applying the standard?
Adickes v. S.H. Kress & Co. (1970): “Respondent did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while P was waiting for service, and that this policeman reached an understanding with some Kress employee that P not be served.”
Burden on Party Moving for SJ when that Party Does Not Bear the Burden of Proof at Trial
The party seeking SJ bears the initial responsibility of informing the court of the basis for its motion, and identifying portions of the pleadings, depositions, answers to int’s, admissions, and affidavits which it believes demonstrate the absence of a genuine issue of material fact.
The moving party is not required to negate the opponent’s claim.
So Celotex doesn’t have to prove it wasn’t responsible; just show that P can’t prove it was.
more on courts and SJ
“The court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the non-moving party.”
