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Summary Judgment– Meeting the BOP

Summary Judgment– Meeting the BOP. If P does have to respond (under Celotex ), what does P have to do?. According to Rehnquist. According to White. Our Summary Judgment Problem. Stop. Stop. Stop. Stop. D. W. C. P. What are the facts according to the D’s answer?.

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Summary Judgment– Meeting the BOP

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  1. Summary Judgment– Meeting the BOP

  2. If P does have to respond (under Celotex), what does P have to do? According to Rehnquist According to White

  3. Our Summary Judgment Problem

  4. Stop Stop Stop Stop D W C P

  5. What are the facts according to the D’s answer? On a 12(b)(6) motion, what must the court treat as the facts? What are the facts according to the P’s complaint?

  6. With what does he support that motion? If P had not responded, what would the court have been required to assume? What does D file? What response did P actually file?

  7. What factual issues are still in dispute? Are there “material facts” that are still in dispute? What facts must the court consider to be “undisputed”? How does one decide if a factual issue is “material”?

  8. What did Porter do to force Arnstein to respond? Would that have satisfied Celotex? What is the factual issue on which Porter sought summary judgment? Would that have satisfied Adickes?

  9. What evidence is there that Porter copied Arnstein’s songs? • Comparison of two songs • Does not rule out copying, but • Does not, by itself meet P’s BOP on copying, but • Would meet BOP if P could meet BOP on ___________. access

  10. What evidence is there that Porter had access to Arnstein’s songs? • Arnstein’s affidavit about Porter’s stooges • Evidence that someone broke into apartment • No evidence tying Porter to break in. • 1 Million copies in print.

  11. I never saw or heard Arnstein’s songs. I wrote (e.g.) “Night and Day” myself. How can this testimony meet Arnstein’s BOP? Demeanor & the Burden of Production

  12. Dyer v. MacDougall

  13. Focus on Counts 3 and 4 • What did P allege in Count 3? • D MacDougall said to Almirall • “P’s letter was a blackmailing letter” • What did D submit in its MSJ re Count 3? • D’s affidavit, “I never said it.” • Almirall’s affidavit, “D never said it to me.” Does this satisfy Celotex? Why doesn’t P just submit his own affidavit that D did say it? What could P do to prove statement was really made? Did P violate Rule 11 by filing this case?

  14. What did D submit in its MSJ re Count 4? • W’s affidavit, “I never said it.” • Hope’s affidavit, “W never said it to me.” • What did P allege in Count 4? • D Wife said to Hope • “P wrote and mailed a blackmailing letter” Anything different about this count? Who is Hope?

  15. How can D move for SJ when Counts 1 and 2 are still out there?

  16. What do you do if D files for SJ before you complete your discovery? Complaint Answer Trial Motion to Dismiss Discovery Completed Motion for Summary Judgment

  17. P’s Directed Verdict Area Shifts BOP Shifts BOP Preponderance Reasonable Doubt Meets BOP Meets BOP Jury Decision Area D’s Directed Verdict Area How does the burden of persuasion effect the burden of production?

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