Goals

1
Goals

• Understand (on your own) the practical issues of
  MSJ (motion practice)
• Understand the burdens of production
• Begin to understand the burden of persuasion
  associated with JMOL.
• Note slides 1 to 8 are for your out of class
  use we wont go over in class.

2
Who What When Where

• When (56(a))
• Defendant any time
• Plaintiff 20 days after filing complaint or
  after defendant serves msj.
• What
• All or part of a claim
• All or part of a defense

3
Motion

• An MSJ has two parts
• Statement of Undisputed Facts
• Supported by filing evidence such as deposition
  excerpts, affidavits, interrog answers so on.
• Legal Argument
• Movant explains why in light of the undisputed
  facts, it is entitled to JMOL (no reasonable jury
  could find for nonmovant).

4
Statements Must be Supported by Evidence

• Admissions in pleadings
• E.g., if defendant doesnt deny it owned the
  forklift.
• Discovery materials
• Interrogatory answers
• Answers to RFA
• Deposition excerpts

• Affidavits. 56(e)
• Sworn statement from a witness
• I.e., from your client or a third party
• Not from opposing party, since its unethical for
  you to contact a party represented by opposing
  counsel

5
Response to Motion

• Responding party
• Shows there are disputed material facts, either
• in the materials relied on by the movant or
• by submitting other MSJ evidence (depos, etc).
• Argues that a reasonable jury could come out its
  way.
• I.e., that JMOL standard isnt met.

6
Reply in Support of Motion

• In a reply, movant explains why its original
  motion should be granted.

7
Courts Ruling

• MSJ must be denied if the movant fails to
  establish either (1) there is no disputed issue
  of material fact or (2) movant is entitled to
  JMOL (because a reasonable jury could still find
  for the nonmovant based on the undisputed facts).
• Put other way nonmovant wins if theres a
  disputed issue of material fact or under the
  disputed facts movant isnt entitled to JMOL

8
Ruling Options for Court

• A court can grant or deny a motion in whole or in
  part. Read 56(d) carefully.

9
MSJ The Issues

• Did Movant meet BoPro?
• Did Nonmovant meet BoPro?
• Did Movant Carry MSJ BoPers?

10
(1) Movant Must Meet BoPro

• When a party moves for summary judgment and
  suggests that no disputed material issue exists,
  that party must support its motion with
  affidavits or other MSJ evidence.
• Exception if MSJ is being used to argue a pure
  question of law (even assuming plaintiffs
  allegations are true), then no evidentiary
  material is necessary.

11
BoPro of Movant

• If Nonmovant has BoPers at trial
• Must show that theres insufficient evidence on
  at least 1 element of nonmovants claim or
  defense.
• Negate affirmatively, see Kress or
• Show nonmovant cant carry its BoPers at trial.
  Celotex.
• Cannot simply say nonmovant lacks evidence.
• If Movant has BoPers at trial
• Must show that theres sufficient evidence on
  every element of claim or defense entitled to
  JMOL.

12
What Quality of Evidence?

• Well cover JMOL in detail later, but
• The movant must accompany its motion with
  evidence that would allow the district court to
  grant a directed verdict (Rule 50(a)
  pre-verdict JMOL) in its favor.
• Evidence is viewed in the light most favorable to
  the nonmovant.
• Trial court cannot judge credibility of witnesses
  as to a material fact thats a disputed issue.

13
Even no Response by NonmovantDoesnt Justify
Entering SJ

• Even if no evidence is put forward by opposing
  party, court cant enter SJ unless it is
  appropriate. 56(e)(2)
• Entry of SJ appropriate only if movant shows (1)
  no genuine issue material fact and (2) movant
  entitled to JMOL. 56(c)
• What if nonmovant fails to respond?
• Waives (1) right to controvert facts asserted in
  MSJ and (2) waives right to respond to legal
  argument.
• Court must accept as true all material facts
  asserted in MSJ if they are properly supported.

14
Celotex (516)

• What led to suit filing?
• Who moved for MSJ and on what issue? Who had
  BoPers at trial on that issue in MSJ?
• Was defendant required to file evidence which
  negated an element of plaintiffs claim?
• What 2 ways can defendant meet BoPro
• Would it have been enough for defendant to file
  motion saying, no evidence supports plaintiffs
  claim and say nothing else?

• What was plaintiffs evidence in response?
• Was that enough?
• Problems (520)
• 4a
• 4b
• 4c

15
(2) If Movant Meets BoPro BoPro (not MSJ
BoPers) Shifts

• Nonmovant need more time? 56(f)
• Must file admissible evidence showing specific
  facts of a genuine issue of material which needs
  to be tried. See Bias.
• Pleadings not enough. 56(e)(2)
• Summary judgment inappropriate only when the
  issue to be resolved is both genuine and relates
  to a disputed material fact.
• An alleged factual dispute regarding immaterial
  or minor facts between the parties will not
  defeat an otherwise properly supported motion for
  summary judgment.
• How much evidence is enough?
• The existence of a mere scintilla of evidence in
  support of nonmovant's position is insufficient
  to defeat the motion there must be evidence on
  which a jury could reasonably find for the
  nonmovant.
• There is no issue for trial unless there is
  sufficient evidence favoring the nonmoving party
  for a jury to return a verdict for that party
  i.e., reasonable juries could disagree.

16
Nonmovant BoPro

• Problems (520)
• 5a
• 5b
• 5c

17
Bias (521)

• Facts led to suit?
• What did defendant concede? What element of
  plaintiffs case did defendant attack?
• What evidence did defendant produce?
• What evidence did plaintiff produce??
• Why wasnt plaintiffs evidence enough on the two
  issues to show genuine issue of material fact?

18
(3) Movants BoPers on MSJ

• Movant always has BoPers to show that based on
  undisputed facts it is entitled to JMOL.
• So, if reasonable jurors might disagree on the
  question, or disagree on permissible inferences
  arising from the undisputed facts, then a court
  should deny summary judgment and submit issue to
  jury.
• This is the focus of case law in briefing are
  the facts here like cases where courts had
  affirmed JMOL or jury verdicts in movants favor
  before, or are they like cases where JMOL had
  been reversed or jury verdicts in the nonmovants
  favor affirmed?