Summary Judgment (FRCP 56) Flashcards
Summary Judgment (FRCP 56)
The purpose of summary judgment (“SJ”) is to resolve all or part of a case before trial. If the undisputed evidence will support only one outcome as a matter of law, then the judge can decide the issue rather than sending it to trial.
- Examples: A defendant can move for summary judgment in an effort to dismiss a claim, or an entire lawsuit. Or a plaintiff can move for summary judgment in an effort to have the judge decide part or all of a claim favorably to the plaintiff – perhaps, as we’ve seen, to have the judge decide as a matter of law that the defendant is collaterally estopped from re-litigating an important issue.
Standard for SJ:
A motion will be granted where there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law.
- The purpose of trial, whether before a judge or jury, is to resolve disputes of fact (i.e., to decide what the true facts ARE), and then to apply the law to those facts to reach an outcome in the case.
- If a party can establish BEFORE trial that there are NO disputes of fact, and that when the law is applied to the undisputed facts, there is only one possible outcome (and it is favorable to the party moving for SJ), then there is no point in wasting everyone’s time by going to trial – the judge can decide the case (or issue) right then and there, without the need for a trial.
What is a “genuine dispute of material fact”?
- A genuine dispute of material fact exists where there is evidence to support different outcomes on the issue before the court, one of which would be favorable to the nonmoving party. If this exists, then the court cannot grant SJ in favor of the moving party.
- Opposing parties to a lawsuit will almost always have different versions of at least some of the key facts in the case – they will disagree on the facts, which is why the case is in litigation. You don’t have to have complete agreement on all the material facts to be able to bring, and perhaps win, a SJ motion. Instead, you must ASSUME (for purposes of the SJ motion only) that where there ARE disputed facts, the jury (or judge) at trial would find those facts to be favorable to the party opposing the SJ motion.
- In other words, where there are disputed facts relevant to a SJ motion, the moving party must accept the opposing party’s version of those facts as TRUE for purposes of the motion. This is referred to as “looking at the evidence in a light most favorable to the nonmoving party.”
- It doesn’t matter how questionable the opposing party’s evidence appears to be, in contrast to the moving party’s evidence. Summary judgment is not the time for fact-finding, and the judge does not have the power or authority to decide which facts are true among disputed facts prior to trial. Instead, where facts are disputed, the judge on SJ must accept the facts presented by the opposing party as true for purposes of deciding the motion.
- The court is not permitted to weigh the credibility of witnesses or other evidence in ruling on a motion for SJ – this is the job of the fact-finder at trial.
- Example: If a party moving for SJ has ten strong, believable witnesses to support the existence of an important fact, and the party opposing the motion has one shaky witness (with poor eyesight and a history of lying) who claims that the fact didn’t happen, the judge must accept the shaky witness’s version of the fact for purposes of deciding the SJ motion.
- Reason for this approach: The moving party is asking the judge, without a trial or additional fact-finding, to decide an issue against the nonmoving party. In order to do that, the moving party has to be able to say, “Even if the jury determined all the disputed facts favorably to the nonmoving party, the nonmoving party still can’t win on this issue as a matter of LAW … because under the BEST of circumstances, with the factual determinations all favorable to the nonmoving party, she still cannot meet the LEGAL standard she has to meet in order to be able to win on this issue.”
So to state the SJ standard another way:
SJ is appropriate only where the evidence is so one-sided that no reasonable jury could find in favor of the nonmoving party, when looking at all the evidence in a light most favorable to the nonmoving party.
What evidence is before the court on an SJ motion?
The parties support and oppose the SJ motion with evidence gathered during the discovery process.
- Depositions, documents, ESI, affidavits, stipulations, admissions, interrogatory answers.
- The evidence presented need not be admissible at trial under evidentiary rules, BUT it must be capable of being presented in a form that would be admissible at trial.
- Example: Deposition testimony is not typically admissible at trial if the witness is available to testify live. BUT a party can use deposition testimony to support a SJ motion because it is capable of being reduced to admissible evidence – that is, the witness can be called at trial to testify and presumably will testify consistent with the deposition, since the deposition was under oath.
Timing of an SJ Motion:
Rule 56 says that unless a local rule or the court orders otherwise, an SJ motion may be filed any time until after 30 days after the close of the discovery period.
- The court’s Scheduling Order usually provides an SJ motion filing deadline that is a month or so after the close of discovery.
- Parties usually wait until after the close of discovery to file SJ motions, and courts generally expect them to do so, as you usually need all the evidence to be in before the court can rule on a claim or defense as a matter of law.
- Parties are permitted to file SJ motions before discovery has ended, but it is harder to get a judge to grant the motion. The other side will typically argue that granting SJ before the end of the discovery period is premature, as discovery may yet turn up evidence that establishes the existence of a genuine dispute of material fact.
- Rule 56(d) permits a judge to deny or delay ruling on a SJ motion due to the need for more discovery.
Burdens of Proof and Summary Judgment
In order to properly support and oppose an SJ motion, the parties must carry certain burdens, which are to some extent dictated by the burdens they carry at trial. In order to understand the burdens the parties carry on SJ, you have to understand the burdens that the parties carry at trial.
Burden of Proof:
- This term refers to the burdens carried by the litigants to prove their claims or defenses to a certain level of certainty. What that “level of certainty” is depends on the substantive law.
- E.g., “beyond a reasonable doubt”, or “clear and convincing evidence”, or “by preponderance of the evidence”.
- In civil cases, the parties must typically prove their claims and defenses “by a preponderance of the evidence” (i.e., just over the 50% mark).
- In addition to determining how heavy or how light the burden will be, substantive law determines which party carries the burden of proving the various aspects of the case.
- A plaintiff generally has the burden of proving his/her claims.
- A defendant generally has the burden of proving his/her defenses.
- The burden of proof is generally comprised of two elements: the burden of persuasion and the burden of production.
- The burden of persuasion is the ultimate burden of proving the claim, defense, or element of either, by a preponderance of the evidence (or other standard, depending on substantive law).
- The burden of production is the burden to produce evidence that supports the party’s position.
- Usually, a party will bear both the burden of persuasion AND the burden of production in proving his claim or defense – but in some circumstances, the burden of production may shift back and forth, as dictated by substantive law.
The Parties’ Burdens on Summary Judgment:
When moving for SJ, the moving party carries the burden of persuasion at all times – he must persuade the judge that SJ is appropriate. However, the burden of production (i.e., the burden of producing evidence) shifts from one party to the other during the SJ process.
The Moving Party’s Burden on SJ:
- The moving party must first carry an initial burden on SJ – he must establish a prima facie case showing that SJ is appropriate.
- “Prima facie” is Latin – means “on first appearance” or “at first sight.” In the legal context, it means that evidence has been presented which, if left unrebutted, would be sufficient to prove the issue.
- How the moving party carries its initial burden on SJ depends on whether or not he has the burden of proof at trial with regard to the claim or defense at issue in the motion. In essence, the moving party’s initial burden on SJ mirrors the burden the party carries at trial.
- If the moving party bears the burden of proof at trial – then there is only one way that the party can establish a prima facie case for SJ. He must present affirmative evidence to support each element of his motion. Glannon refers to this as the “Proof-of-the-Elements” approach.
- Example: If a plaintiff moves for summary judgment on the plaintiff’s own claim, then the plaintiff must present affirmative evidence to support each element of that claim in order to satisfy her initial burden on SJ.
- If the moving party does NOT bear burden of proof at trial – then the moving party can satisfy his initial burden on SJ in one of two ways.
- He can present affirmative evidence that negates the other party’s claim or defense (e.g., evidence showing that the plaintiff CAN’T prove her case). Glannon calls this the “Disproof-of-an-Element” approach.
OR
- He can assert that opposing party LACKS evidence to support an essential element of her claim. Glannon calls this the “Absence of Proof” approach.
- The moving party can support his SJ motion this SECOND way because he does not have the burden to prove the issue at trial. That burden belongs to the opposing party, and if the moving party can show that the opposing party cannot meet that burden, there is no reason for trial.
NOTE: If a moving party opts for this second way of satisfying his initial burden – arguing that opposing party lacks evidence to support an essential element of her case at trial – this doesn’t mean that the moving party can present a motion without any evidentiary support at all.
The Nonmoving Party’s Burden on SJ:
- If the moving party carries his initial burden, then the burden of production shifts to nonmoving party to produce affirmative evidence establishing that a genuine dispute of material fact exists.
- In other words, the nonmoving party must present evidence that would allow a reasonable jury to find for him. The non-moving party cannot simply rest on allegations or denials in the pleadings, speculation, or conjecture.
- NOTE:The nonmoving party’s burden is the same, regardless of whether he carries the burden of proof at trial on the matter or not.
- The burden of production shifts to the nonmoving party ONLY IF moving party has first established his/her initial burden. Thus, the nonmoving party could conceivably attack the moving party’s SJ motion in one of two ways:
- Could argue that the moving party has not met his/her initial burden of proof, OR…
- Could produce EVIDENCE to establish that there is a genuine factual dispute for the jury to decide.
- If the nonmoving party carries its burden of producing evidence that raises a genuine dispute of material fact, the moving party’s summary judgment motion will be denied.
Judgment Independent of Motion
In addition to granting or denying a SJ motion filed by a party, Rule 56 permits a judge to:
- Grant SJ in favor of the nonmoving party, rather than moving party, if deemed appropriate.
- Grant the SJ motion on grounds not raised by any party.
- Grant SJ sua sponte after identifying for the parties material facts that it deems not in dispute.
It is rare for a judge to engage in any of these types of actions. Judges are not generally that activist – they will usually just grant or deny the motion based on the grounds raised by the parties.
Affidavits.
An affidavit is a form of evidence that may be used to support or oppose a motion. It is a written sworn statement (testimony) of a witness or party attesting to certain facts. It has the same evidentiary weight as deposition testimony.
Requirements:
- The facts set forth in an affidavit must be made on personal knowledge
- The affidavit must set forth facts that would be admissible at trial.
- Hearsay statements, conclusory allegations, speculation or conjecture, inadmissible expert opinions – all are improper in affidavits.
- A party’s promise that he/she has certain unidentified “additional evidence” that will be produced at trial is insufficient.
- The affidavit must establish the affiant’s competence to testify.
The Right to Trial by Jury
The right to trial by jury in civil cases filed in federal court is guaranteed by the 7th Amendment to the United States Constitution.
The 7th Amendment doesn’t provide for jury trials in all civil matters – rather, it provides for jury trials in matters where juries were historically permitted – in the courts of England in 1791.
- Historically, juries were permitted in “actions at law” (filed in the common law courts), but there was no jury trial right in “equitable actions” (filed in the courts of chancery).
- When courts today are required to determine whether a jury trial is permitted in a given action, they apply the “historical test”: Are the claims historically (as in, back in 1791) characterized as “actions at law” (with a jury trial right) or “equitable actions” (with no jury trial right)?
Rule of thumb distinction between “actions at law” and “equitable” claims:
- Actions at law are generally those that seek money damages.
- Equitable actions are generally those that request the court to order the parties to DO or NOT DO something (referred to as “specific” or “injunctive” relief).
- But Note – not all “specific” relief is equitable. For example, replevin (to recover possession of personal property) and ejectment (to recovery possession of real property) are actions at law, not equitable claims.
- EXAMPLES of equitable actions: actions seeking injunctions, specific performance, rescission, reformation, accounting.
What happens if there are legal and equitable issues in the same case?
- Key Point: The existence of equitable claims in a lawsuit cannot operate to deprive a party of his right to jury trial with respect to legal claims brought in the same lawsuit.
- In a case with both types of claims, the federal court judge will “bifurcate” the trial (i.e., try it in two parts) – all legal claims will be tried before a jury, and all equitable claims will be tried before the judge.
- Because there are likely common facts among the claims in the lawsuit, and all facts pertinent to the legal claims must be determined by the jury pursuant to the 7th Amendment, the Supreme Court has held that in a case with mixed legal and equitable claims, the legal claims must be tried first to the jury, with the equitable claims tried afterwards by the judge.
- This is true regardless of whether the legal claims are brought by the plaintiff, by the defendant as counterclaims, or by some other party.
- Findings of the jury during the first part of the trial with regard to facts common to both legal and equitable claims are binding on the judge in the second (equitable) part of the trial.
