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Civil Procedure II Outline - Part 19

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jjj. Inadmissible evidence

  1. Summary judgment previews evidence of a trial. If evidence is heart or inadmissible on objection at trial it should not be considered in summary judgment.
    1. If it could not be considered at trial, it should not be considered at summary judgment either (on timely objection) as long as summary judgment is to function as an accurate preview of trial.

kkk. The fundamental purpose of summary judgment.

  1. The Basic purpose of summary judgment is to determine from the record whether there is a genuine dispute of material fact, and if not, whether the moving party is entitled to judgment as a matter of law on the undisputed face.
    1. Because summary judgment is a matter of law, the starting point is alway to identify the applicable law. (doing so also helps identify which facts are material.)
      1. Having performed those taska a court in ruling on a motion for summary judgment can then examine whether the evidence in the recordofferd by the moving party shows that there is no genuine dispute of material fact and that it is entitled to judgment as a matter of law.
        1. If the moving party meets this burden, the burden shifts to the nonmoving party and the court when then consider whether the non-moving party has identified specific facts in the record that create a genuine dispute, notwithstanding the movants showing.
          1. Finally the court would grant or deny the motion, in whole or in part.

lll. How to run through a motion for summary judgment analysis

  1. What is the rule of substantive law applicable to the motion?
  2. Which facts are material to applying the law?
  3. Whether the defendant had knowledge of his ill or knew he was in danger
  4. What is the proper record for summary judgment? (Evidence the court may consider)
  5. As the moving party met its burden of showing that there is no genuine dispute of material fact in that record and that ists is entitled to judgment under the applicable rule of law?
  6. If the movant has met its burden has the nonmoving party met its burden of showing specific facts in that record that create a genuine dispute of material fact under the applicable rule of law?
  7. What is the proper disposition of the motion?

mmm. Slaven Rules

  1. An adverse party may not resup upon mere allegations or denials of his pleading, but his response by affidavits or as otherwise provided, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him.
  2. THe party failing to file an opposing affidavit in such a situation cannot rely on the hope that the judge may draw “contradictory inferences” in his favor from the apparently undisputed facts alleged in the affidavit of the moving party.
  3. A party must resort to rule 56(f) when it is opposing summary judgment and is unable to present a sufficient affidavit because the necessary facts or evidence are possessed or controlled by the moving party.

nnn. What is a proper record for summary judgment?

  1. Rule 56ca1
    1. List materials that may be considered in deciding summary judgment. But all discovery materials do not automatically qualify for consideration on summary judgment.
      1. They must be admissible under the rules of evidence before they are properly considered as part of the record for summary judgment.
        1. Why should support materials need to be admissible?
          1. Applying the admissibility tests to all evidence on a summary judgment motion serves the purpose of summary judgment rule 56 is designed to avoid a trial that would be unnecessary. THe motion could ont serve that function if in deciding whether issues exist for trials, courts were to consider evidence that could not subsequently be admitted at trial.

ooo. Relying on pleadings for summary judgment

  1. Typical pleading is unsworn and often contains allegations that are not made on the personal knowledge of the hpleader. It is therefore not usually evidence that would be admissible at trial.
    1. The whole purpose of the summary judgment motion is to pierce or go beyond the pleadings to the admissible evidence that the pleader expects to offer to prove them.
  2. Federal rule 56c1a
    1. Does not expressly exclude a movant from relying on her own pleadings to support a summary judgment.
      1. But 56c2 provides that the opposing party may object that material “cannot be presented in a form that would be admissible in evidence at trial. The movants own unsworn pleadings are not in such form and could not be offered as evidence by that party at trial.
        1. In contrast an opposing party's pleadings could be admitted at trial as admission by the pleader.
          1. On rare occasions a party may also rely on its own pleading but only if the party swore to the truth of the pleading allegations made them from personal knowledge and those allegations would be admissible at trial.
            1. In other words, if the pleading is the equivalent of an affidavit.

ppp. Admissible Materials

  1. Affidavits.
    1. Must be made on personal knowledge 56c4
  2. Depositions are expressly listed as materials in the record that a party may cite on summary judgment
    1. 56c1
    2. Remember that the particular contents must be admissible as well though.

qqq. Summary Judgment and the Standard of proof

  1. Whether the evidence presented is such that a reasonable jury could not find by a preponderance of the evidence for the non-moving party.
    1. Libel plaintiffs had the burden of proving actual malice by clear and conniving evidence, a higher standard of proof than preponderance of the evidence.
      1. In other words the determination whether there is a genuine dispute must be guided by the standard of proof applicable to the issue in the case.

rrr. Needing time to respond.

  1. The Discovery rules allow parties to require others to testify under oaths in depositions or answer to interrogatories.
    1. 56 D
      1. Expressly let's patties file an affidavit to obtain a continuance ( a delay before having to respond to the motion) in order to complete any discovery that she needs to respond to the motion.
        1. Although IDK yet whether the facts are undisputed is not a sufficient response to defeat summary judgment it can buy an opposing party time.

sss. Disputes of Law

  1. Would a genuine dispute about the applicable legal standard preclude summary judgment.
    1. No
      1. Rule 56 expressly looks to genuine disputes of material fact, not lof law.
    2. However a judge will deny summary judgment and make the parties go to trial because she concludes that a fuller record may clarify the correct legal analysis.
      1. The supreme court has approved the deferral of decision in such circumstances
        1. Reasoning that “ good judicial administration without decisions of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based litigation or on a comprehensive statement of agreed facts. While we might be able to reach a conclusion that would decide the case, it might well be found later to be lacking in the thourghounes that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

ttt. Dispute of material fact

  1. The supreme court has said that a dispute is genuine
    1. If the evidence is such that a reasonable jury could return a verdict for the non-moving party.
      1. Whether a dispute is genuine
        1. Depends on whether any reasonable factfinder could decide an issue of material fact for the non-moving party. The summary judgment standard is not whether a reasonable jury should or would find for her, but COULD

uuu. The lying affiant and the slightest double standard.

  1. Courts have generally rejected the “disbelief of denial” and slightest doubt theories of denying summary judgment.
    1. The slightest doubt standard would eviscerate summary judgment because “at least a slight doubt can be developed as to practically all things human.

vvv. Judicial Fact Finding

  1. The rule authorizes summary judgment only if the record “shows that there is on genuine dispute.” if there is such a dispute summary judgment must be denied. It is the existence of the genuine dispute, not its resolution, that is key to summary judgment.

www. Relationships to other motions summary judgments.

  1. The motion for summary judgment is not the only motion seeking judgment as a matter of law.
    1. The rule 12b6 motion to dismiss for failure to state a claim shares that honor, because it, like hte summary judgment motion, asks the court to make a decision as a matter of law on undisputed facts.
      1. How are they different
        1. The record for decisions is different.
          1. 12b6 is decided strictly on the factual allegations contained in the complaint, which are presumed to be true for purposes of the motion.
          2. The summary judgment motion is decided on the record of facts contained in all the supporting materials and any opposing materials that would be admissible at trial.
          3. 12c motion for judgment on the pleadings record for decision under this motion is the complaint and answer as well as the reply if any.
      2. Furthermore, either of these motions can be converted into a motion for summary judgment by the movant's presentation of material outside the complaint in support of the motion.
        1. If the court does not exclude such materials it must treat the motion as one for summary judgment.
      3. Finally a motion for judgment as a matter of law is a third cousin to summary judgment.
        1. The supreme court has equated the standard for summary judgment with the standard for a directed verdict at trial. Under rule 50a
          1. In essence the inquiry under each rule is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.
        2. Then what is the difference?
          1. Timing and the record for decision
            1. Summary judgment motions are usually made before trial and decided on a documentary evidence
            2. Directed verdict motions are made and trial and decided on the evidence that has been admitted.
      4. Great Chart on Page 1029

xxx. Relationship between the movant's burden and the burden of proof at trial.

  1. The party who moves for summary judgment has the burden of showing that there is no genuine dispute of material fact and that she is entitled to judgment as a matter of law.
    1. If the moving party would have the burden of proof on a claim or defense at trial then he must present undisputed facts supporting each and every element of the claim or defense in order to obtain summary judgment.
      1. Call his proof of the elements motion for summary judgment.
  2. If the moving party would not have the burden of proof at trial, then she typically a defendant has two alternatives
    1. She could present undisputed facts negating or proving the non-existence of an essential element of the non-moving party's claim.
      1. Call this a disproof of an element motion for summary judgment.
    2. Or she could demonstrate that there is no evidence whatsoever in the record by which the non-moving party could establish the existence of an essential element of his claim.
      1. Call this an absence of evidence motion for summary judgment.
  3. Partial Summary Judgment
    1. Rule 56 A authorizes summary judgment on a part of a claim or defense.
      1. A court may grant summary judgment as to one or fewer than all claims or even to part of a claim leaving the rest for trial.
  4. Negating an opponent's claims.
    1. Movants must produce real evidence to prove the nonexistence of the element to prove that it is not true, or in our terminology disprove it.
      1. Otherwise there would be no burden of evidence on the movant and be too easy for defendants.
  5. Showing
    1. The Celotex majority concludes that this wording meant that the movant “has the initial responsibility of identifying those portions of “the pleadings depositions, answers to interrogatories and admissions on file together with affidavits if any’ which it believes demonstrate the absence of a genuine issue of material facts.
      1. If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions interrogatories and other exchanges between the parties that are in the record
        1. In plain english the party can just say that the opposing party doest have any evidence; celotex must review and identify relevant parts of the discovery record including answers to interrogatories or depositions, to SHOW that there is no evidence.
      2. “Showing that the materials cited do not establish the absence of presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact.
        1. 56c1b
      3. Once you identify the absence the burden shifts then that party can provide evidence and then the burden shifts back.
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