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Summary judgment . March 31. Review. Court may grant a motion for involuntary dismissal if the plaintiff has either failed to prosecute her claim or failed to obey the F.R.C.P. or a court order. An involun. dismissal = an adjudication on the merits.

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Review

  • Court may grant a motion for involuntary dismissal if the plaintiff has either failed to prosecute her claim or failed to obey the F.R.C.P. or a court order. An involun. dismissal = an adjudication on the merits.

  • A plaintiff may take a voluntary dismissal and re-file her claim once without prejudice; the second voluntary dismissal is with prejudice.


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Summary judgment – quick review hypos pp. 513-14

  • P v. D alleging D executed a promissory note that is now due and unpaid.

  • 1. The defendant moves to dismiss on 12b6 grounds b/c the defendant says he did not sign the note. Should the court grant the 12b6 motion?


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Hypo cont’d

  • 2. Defendant moves for s/j with his affidavit saying he did not sign the note. P’s lawyer responds with her affidavit that says “my client told me he watched the defendant personally sign the note”. What’s the problem?

  • 3. What if P signs an affidavit that says, “I know the defendant signed the note”. What’s the problem?

  • 4. To support the contention that the defendant signed the note, what statements should the p’s affidavit contain?


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Hypo cont’d

  • 5. If def’s depo testimony was “I signed the note” could a transcript of that testimony be submitted by the plaintiff submitted in opposition to the motion for s/j?

  • Could P submit her affidavit and the depo testimony? Should she do so?


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Hypo cont’d

  • Assume def never said anything in his depo about signing. At s/j, he submits an affidavit that he never signed the note. P counters with her own affidavit that says she saw def sign the note. Is s/j proper for either party?

  • What if in addition to p’s own affidavit, she gets the affidavit of a busload of nuns, all of whom say they saw the def sign the note. Is s/j in favor of the plaintiff proper?


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Review ?

  • What’s the governing standard for the grant of a motion for summary judgment?


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More on the standard

  • A genuine issue of fact exists when reasonable jury could return a verdict in favor of non-moving party given the evid presented. Most courts say mere scintilla of evid not enuf to defeat motion for s/j - although some still use that std. Most courts ask: is there enough here for jury to find in favor of non-movant?


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Celotex

  • What is basis of Celotex’s motion for s/j - why is it claiming s/j is appropriate?

  • What evidence does Celotex point to in support of its motion?

  • How does the plaintiff respond? (Two responses – one based on the evidence and the other based upon the law as stated in Adickes)


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Celotex

  • What was Celotex’s response to the evidence produced by plaintiff?

  • What was Celotex’s response to plaintiff’s legal argument? (i.e. was Celotex trying to show by affirmative evid that there was no exposure)


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The problem with Adickes

  • What would Celotex need if only way to get s/j was having affirmative evidence that defeated p’s claim - i.e. if Celotex had to prove that p was never exposed to its product, how would it have to do that?


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Celotex

  • The Court announces that there are two ways to get s/j – one is to produce affirmative evidence negating an essential element of plaintiff’s claim (the Adickes standard) What is that other way to get s/j?


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Showing p has no evidence

  • How def can show p has no evid to prove an element of her case?

  • What if def had moved for s/j on the day it filed its answer saying “look, there’s an absence of evid in record to prove exposure to Celotex’s product injured p - is that enough?”


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Query

  • What kind of discovery must def do to show there is an absence of evid?


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Hypos

  • Change facts. Assume that although interrogs said no witness to plaintiff’s exposure to C’s products, a co-worker in his depo testified that Plaintiff may have been exposed to Celotex’s product. What must Celotex do if it knows there is evid in record that may subvert its position?

  • If Celotex didn’t do this (didn’t show why evid in record shouldn’t apply) - will it have met its burden of production in support of its s/j motion?


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Query

  • What if nonmovant doesn’t think def has met its burden of production - is it safe to just rest on pleadings?


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Hypo

  • a. If Mr. C. produces a letter from his boss in response to the s/j motion and the letter said, “ I bought asbestos from Celotex and gave it to Mr. C for use on the job” Is that enough to avoid s/j? (Does it matter that it’s a letter and not an affidavit?

  • B. What if the letter said, “I wasn’t in direct contact w/this part of the operation but I understand Mr. C used Celotex products” Is that enough to avoid s/j?


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Query

  • At trial, how do these two scenarios differ:

  • 1. To prevail, what does defendant have to do if the plaintiff has not met her burden of proof on an essential element of her claim?

  • 2. To prevail on an affirmative defense, what must the defendant do?

  • (Given that there are different standards for prevailing in these situations at trial, how should this play out in a summary judgment motion? – see next slides)


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When the movant has the BOP

  • In his dissent, Justice Brennan talks about dif in burden of production if party has burden of proof at trial - e.g. assume that in Celotex, C said - yes it was our product, yes it harmed the plaintiff - but the plaintiff knew of the dangers and assumed the risk - who has the burden of proof on this issue?


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When the movant has the BOP, cont’d

  • If the party with the burden of proof at trial is moving for summary judgment, the standard adopted is the one articulated by Justice Brennan: the movant who has the bur of proof at trial must produce enough affirmative evid to show that the jury would have to find for it if no contrary evid - must produce AFFIRMATIVE evid showing it wins

  • Why have this standard - requiring affirmative evid - to win a s/j motion if have bop at trial?


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Query

  • Celotex says p assumed risk and thus I do not have to pay. How could Celotex produce affirmative evidence in order to get summary judgment on this affirmative defense? If it meets its burden of production for summary judgment, is the case over?


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Hypo

  • Def moves for s/j on causation - reviews all discovery docs and says: “plaintiff does not have an expert to say asbestosis was cause of death.” Mrs. C responds w/expert affidavit who says, “in my opinion the findings from the medical records are consistent with Mr. C’s having asbestosis”. May Mrs. C. produce this affidavit in response to Def’s s/j motion?

  • Given this affidavit, how should the court rule on the s/j motion?


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Hypo

  • Suppose it is Mrs. C who moves for s/j on causation. She has her one expert - Celotex has no competing expert or other evidence to contradict p’s expert. Why should Mrs. C’s motion for s/j be denied?

  • Why does same affidavit lead to different results in these two situations?


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In ACA

  • Could Anne Anderson move for summary judgment just on liabilty?I

  • Can W.R. Grace move for summary judgment on liability? If they did this on the ground that plaintiffs can’t prove causation, what ways could they support their motion?


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Houchens v. American Home Assurance (CB p. 35)

What are the relevant facts?

What’s the issue?

What’s the holding and why?


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Houchens, cont’d

What would Mrs. H have had to show to avoid having s/j granted against her?

Would she have to prove at s/j that he had died because of an accident?


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Houchens’ hypo

  • Assume Mrs. H presents an affidavit from a distant acquaintance who asserts he saw someone looking much like Mr. H hit by a Thai streetcar. The insurer presents affidavits from Thai traffic police to the effect that there were no streetcar accidents on the day in question. They also present affidavits that the day on ?s, Mr. H was arrest and shot while trying to escape from Thai narcotics cops. What ruling on the s/j motion?


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Bias p. 521

  • Why would the defendant in this case really want to avoid a jury trial?

  • If it’s clear that the sports agent had promised to obtain the policy and it failed to do so, what is the agent’s defense?


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Bias cont’d

  • Do you think there was a triable issue of fact here? [or to put it another way, do you think the decision was correct or incorrect?]

  • Why do you think the plaintiffs did not depose the teammates?