Summary Judgment Meeting the BOP

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
W
D
C
P
5
What are the facts according to the Ps complaint?
What are the facts according to the Ds answer?
On a 12(b)(6) motion, what must the court treat
as the facts?
6
What does D file?
With what does he support that motion?
If P had not responded, what would the court have
been required to assume?
What response did P actually file?
7
What facts must the court consider to be
undisputed?
What factual issues are still in dispute?
Are there material facts that are still in
dispute?
How does one decide if a factual issue is
material?
8
(No Transcript)
9
What is the factual issue on which Porter sought
summary judgment?
What did Porter do to force Arnstein to respond?
Would that have satisfied Celotex?
Would that have satisfied Adickes?
10
What evidence is there that Porter copied
Arnsteins songs?

• Comparison of two songs
• Does not rule out copying, but
• Does not, by itself meet Ps BOP on copying, but
• Would meet BOP if P could meet BOP on ___________.

access
11
What evidence is there that Porter had access to
Arnsteins songs?

• Arnsteins affidavit about Porters stooges
• Evidence that someone broke into apartment
• No evidence tying Porter to break in.
• 1 Million copies in print.

12
I never saw or heard Arnsteins songs. I wrote
(e.g.) Night and Day myself.
How can this testimony meet Arnsteins BOP?
Demeanor the Burden of Production
13
Dyer v. MacDougall
14
Focus on Counts 3 and 4

• What did P allege in Count 3?
• D MacDougall said to Almirall
• Ps letter was a blackmailing letter

• What did D submit in its MSJ re Count 3?
• Ds affidavit, I never said it.
• Almiralls affidavit, D never said it to me.

Does this satisfy Celotex?
Why doesnt 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?
15

• What did D submit in its MSJ re Count 4?
• Ws affidavit, I never said it.
• Hopes 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?
16
How can D move for SJ when Counts 1 and 2 are
still out there?
17
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
18
Ps Directed Verdict Area
Jury Decision Area
Ds Directed Verdict Area
How does the burden of persuasion effect the
burden of production?