1) Termination of Actions without Trial Default Judgment Judgment on the Pleadings Summary Judgment 2) Default Judgment 3) Default Judgment - Rule 55 Three Step Process: (1) The defendant’s default; (2) Upon request, clerk of court enters the default; (3) Entry of a default judgment. 4) Default Judgment Clerk’s Judgment (requirement) to Enter Default (1) Sum Certain (2) Upon failure to appear only (3) Defendant must be a competent person 5) Default Judgment Albert sues Bert in federal court. Bert moves to dismiss Albert’s complaint for failure to state a claim upon which relief can be granted under Federal Rule 12(b)(6). The court overrules the motion. Bert then fails to answer within the time prescribed in Federal Rule 12(a). Albert files an affidavit making Bert’s failure to answer known to the clerk. The clerk then enters Bert’s default on the record. May the clerk enter a default judgment or must the matter be presented to the court with a request for entry of a default judgment? 4/4/02: Bert has appeared, therefore, the clerk cannot enter the default judgment. Appearance means filing a motioning, cross-or counterclaim, answer or response and appearing in court. Anything that puts a piece of paper in front of them. 6) Default Judgment Albert sues Bert in federal court for an injunction. Bert fails to appear or otherwise defend the action. Albert files an affidavit making Bert’s failure to appear known to the clerk. The clerk then enters the default on the record. May the clerk enter a default judgment or must the matter be presented to the court with a request for entry of a default judgment? No, a sum certain is not requested, clerk cannot enter a default for an injunction. 7) Default Judgment Judicial discretion - Notice - when the party against whom the default judgment is sought has appeared in the action, written notice of the application for judgment must be given to that party at least three days before the hearing of the application. 8) Default Judgment Rule 55(c)--Setting aside default Rule 60(b)--Setting aside default judgment 9) Motion for Judgment on the Pleadings - FRCP Rule 12(c) 10) Motion for Judgment on the Pleadings - FRCP Rule 12(c) A motion for judgment on the pleadings allows a party to dispose of an action without trial when the pleadings demonstrate that the moving party is entitled to judgment as a matter of law. This motion performs basically the same function as a Rule 12(b)(6) defense, but it performs that function after the close of all the pleadings. Motion can be brought before you file your answer. Assume that everything in the motioning party’s filing is true. Can include all of the motions in your answer but must include the disfavored 12(b)(2) - (5) Rules if you are going to use them. Decided on the face of the complaint. 11) Motion for Judgment on the Pleadings Albert alleges in a complaint against Bert that Bert was negligent. Bert denies the allegation of negligence in Bert’s answer. Would a motion by Bert for judgment on the pleadings be granted? If allegations are denied then the motion cannot be granted. 12) Motion for Judgment on the Pleadings Albert files 3 complaints, X, Y and Z. Bert admits X but denies Y & Z, so Court Assumes X is true and Y & Z. 13) Motion for Judgment on the Pleadings Albert files 3 complaints, X, Y and Z. Bert admits X but denies Y & Z, so Court Assumes X is true and Y & Z. 14) Motion for Judgment on the Pleadings, Albert makes 4/3/02: Assume the opposite of the person making the motion, that of the person opposing the motion. Opposing Party: Court will assume “truth” of allegations. 15) Motion for Judgment on the Pleadings Albert files 3 complaints, X, Y and Z. Bert admits X but denies Y & Z and Bert makes Affirmative Defense Q, so Court Assumes X is true and Y & Z. 4/3/02: Judgment could not be granted for the plaintiff because the defendant is raising an affirmative defense (assumption of risk, comparative fault, statute of limitations) that bars recovery. Court must assume the defendant’s answer is true and can be proved so plaintiff’s summary judgment on the pleadings cannot be granted. 16) Motion for Judgment on the Pleadings 4/3/02: Judgment could not be granted for the plaintiff because the defendant is raising an affirmative defense (assumption of risk, comparative fault, statute of limitations) that bars recovery. Court must assume the defendant’s answer is true and can be proved so plaintiff’s summary judgment on the pleadings cannot be granted. 17) Motion for Judgment on the Pleadings 18) Motion for Judgment on the Pleadings Motion for Judgment on the Pleadings Motion for Summary Judgment FRCP 56 Function of Summary Judgment Provides a procedure for terminating without trial actions in which: there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law Function of Summary Judgment Cain v. Hilltop Cain is injured when Wayne drives into him. Cain sues Hilltop Manufacturing, which is Wayne’s employer, alleging that Hilltop is liable for Wayne’s negligence because Wayne acted in the scope of employment. Cain v. Hilltop Cain v. Hilltop However, Hilltop knows that Wayne was not working on the day of the accident, so that it is not be liable for Wayne’s conduct. Would a 12(b)(6) motion be granted?? 12(b)(6) Summary Judgment 12(b)(6) challenges the sufficiency of the pleadings. It accepts as true the facts pleaded in the complaint and asserts that those facts do not give rise to an actionable claim. Summary judgment attacks the pleadings as undisputed or as having no factual support. 12(b)(6) Summary Judgment 12(b)(6) motion is usually made before defendant files an answer Motion for summary judgment usually is made after discovery is completed 12(b)(6) Summary Judgment A judgment of dismissal for failure to state a claim when no leave is granted is a judgment on the merits and thus res judicata, baring later actions of the same claim Summary judgment is res judicata not only on the claims alleged, but any other claim that could have been asserted of the basis of the facts presented to the court Function of Summary Judgment Liberal pleading rules allow the assertion of claims and defenses that may have no evidentiary support. A motion for summary judgment pierces the pleadings and puts the opponent to the test of affirmatively coming forward with sufficient evidence for its claims or defenses to create a genuine issue for trial. Memorandum of Points & Authorities (P&A) Introduction: Set forth general background of action and a summary of reasons why action is barred. Statement of Facts: Set forth each undisputed fact and evidence establishing same. Argument: Set forth separately argument why entry of judgment is proper. Conclusion: Summarize argument and succinctly state requested relief. Shifting Burden of Persuasion Rule 56(e) provides that when the motion has been made and is supported by admissible evidence, the burden shifts to the opposing party. Cain v. Hilltop Lundeen v. Cordner 354 F. 2d 401 (8th Cir. 1966); Text p. 877 Essential Points in Case To allege a claim, the plaintiff must allege a chain of elements, which link together to constitute the essential elements of a claim. Colson v. Handy Dandy Steve Colson slips on a paint spill in the paint department at the local Handy Dandy Hardware. He sues Handy Dandy for negligence, alleging that the store should have cleaned up the spill because store employees knew or should have known that the paint spill was on the floor. Colson v. Handy Dandy Colson v. Handy Dandy Motion to Dismiss Compared Steve has alleged an adequate claim. The complaint includes the necessary allegation that the store was on notice of the spill. So Handy Dandy would not be able to get out of this complaint on a 12(b)(6) motion. The complaint does state a claim if the facts alleged are proved. Colson v. Handy Dandy Immediately after the accident, Handy Dandy management interviews the three employees working in the paint department. They all say that they did not see the paint spill, although they had circulated in the area continuously over the previous hour. The department manager states that he had mopped the area where Steve fell 7 minutes before the accident. Colson v. Handy Dandy Handy Dandy moves for summary judgment on the ground that there is no evidence to support Colson’s claim that Handy Dandy knew of the spill or had reason to know of it. Colson v. Handy Dandy Response to Summary Judgment Motion Handy Dandy supports its motion with admissible evidence in the form of affidavits from employees which show that there is no issue of fact as to “notice” of the paint spill. If Steve does not come back with something which tends to prove that they should have known it was there, the motion probably will be granted. Response to Summary Judgment Motion And for a fact to be “disputed” there has to be evidence tending to prove both the positive and the negative. Now, its possible that all those employees of Handy Dandy were lying. But even if they might be lying, Steve is going to have to prove it. If he has no evidence to prove it, summary judgment may well be granted even if they are lying. Response to Summary Judgment Motion As a general rule, the plaintiff has to show that the plaintiff has some positive proof on the elements that the plaintiff must prove, for example, the statement of another customer who is willing to testify that she was in the store three hours earlier and saw that paint spill on the floor. If so, that would be sufficient to create a jury question as to whether the spill was there long enough that they should have seen it and cleaned it up. Function of the Court The judge’s roll is to determine if there is a meaningful dispute in the evidence about whether the spill should have been spotted. The judge can’t grant summary judgment because he or she believes the store’s witnesses and thinks that the plaintiff’s witness is lying. Questions of credibility of the witnesses are questions of fact for the jury at trial not for the judge at summary judgment. If there is meaningful conflict in the evidence or the inferences that might fairly be drawn by the jury, summary judgment will be denied and the case will go to trial. Rule 56 Rule 56 provides that summary judgment should only be granted if there is “no genuine issue of material fact.” In fact, summary judgment can be granted in a case in which there is many hotly contested issues of disputed facts remaining in the case. “summary judgment should only be granted if there is no genuine issue of material fact…” Timing of Summary Judgment Motion A motion for summary judgment may be made at any time except: there is a 20-day “hold” at the outset for motions by plaintiffs deadlines may be imposed by the court other factors, such as the status of discovery, may render the motion premature Timing of Summary Judgment Motion The 20-day hold runs from filing the complaint (commencement of the action), not its service. Thus plaintiff can serve a motion for summary judgment along with the complaint. However, doing so would be futile because the court will almost certainly grant defendant an extension to oppose the motion and conduct discovery Timing of Summary Judgment Motion The Federal rules require that a motion for summary judgment must be served at least 10 days before the hearing date. Rule 56(c) Most federal courts have local rules requiring longer notice Opposition The opposition papers may consist of: Declarations and other evidence Memorandum of Points and Authorities Objection, if any, to the moving party’s evidence Where appropriate, request for further time for discovery Opposition The adverse party may not rest upon mere allegations or denials of his or her pleadings. Rather, the party must present admissible evidence showing there is a genuine issue for trial. Opposition The adverse party may not rest upon mere allegations or denials of his or her pleadings. Rather, the party must present admissible evidence showing there is a genuine issue for trial. Albert, an employee of Cony Company, was injured when a residue of asphalt material in a tank, which Albert was heating, caused the tank to explode. The tank was cleaned by Danco under a contract with Cony. Albert sued Danco for damages suffered in the accident. Danco moved for summary judgment against Albert. Under the applicable substantive law, a defendant under these circumstances is not liable on a strict liability theory. Rather, a defendant may be held liable only if it was negligent in providing service to the plaintiff and only if the defendant owed a duty of care directly to the plaintiff. Would summary judgment be proper? Adickes v. Kress & Co. 398 U.S. 144 (1970) Adickes v. S.H. Kress & Co., the Supreme court held that summary judgment against a school teacher was improper. The plaintiff was not obligated to submit materials under Rule 56(e) because the defendant had failed to meet its initial burden of demonstrating that no genuine issue of material fact existed in the case. The defendant had failed to meet its burden because it did not “foreclose the possibility that there was a police [officer] in the Kress store while [plaintiff] was awaiting service, and that this police officer reached an understanding with some Kress employee that petitioner not be served.” Celotex v. Catrett 477 U.S. 317 (1986) Celotex Corp. v. Catrett Celotex Corp. v. Catrett In response to the motion Catrett filed: a copy of the transcript of the deposition of her deceased husband a letter from a former employee of Celotex and a letter from an insurance company, all showing that the decedent had been exposed to Celotex’s asbestos products in Chicago during 1970-71 Celotex Corp. v. Catrett The district judge granted Celotex’s motion for summary judgment on the ground that there was no evidence that the decedent had been exposed to Celotex’s product in the District of Columbia, where the court sat. Catrett appealed. The Circuit Court reversed, holding that the summary judgment motion was fatally defective because …. Celotex Corp. v. Catrett in making a motion for summary judgment, the moving party bears the burden of proof to show that there was no genuine dispute over a material fact and Celotex failed to adduce any evidence in the form of affidavits or some other form of evidence to support its motion. The USSC reversed, because …. Celotex Corp. v. Catrett Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Rule 56 does not require the moving party to support its motion with affidavits negating the opponent’s claim. Celotex Corp. v. Catrett HELD: “…[R]egardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment as set forth in rule 56(c), is satisfied.” p. 895. Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986); text p. 896 Anderson v. Liberty Lobby, Inc. Jack Anderson published articles about a group called Liberty Lobby in The Investigator. Liberty Lobby and its publisher thought the articles were libelous and filed a lawsuit against Anderson. Anderson v. Liberty Lobby, Inc. Anderson moved for summary judgment on the ground that Liberty Lobby could not prove by clear and convincing evidence that the publication acted with actual malice. Anderson v. Liberty Lobby, Inc. The district judge granted the motion on the ground that Liberty Lobby could not prove actual malice by clear and convincing evidence. The Circuit Court reversed on the ground that for purposes of summary judgment it was irrelevant what standard Liberty Lobby had to meet at trial. Anderson v. Liberty Lobby, Inc. U.S.Supreme Court: “Our inquiry is whether the Court of Appeals erred in holding that the heightened evidentiary requirements that apply to proof of actual malice in this New York Times case need not be considered for the purposes of a motion for summary judgment. Anderson v. Liberty Lobby, Inc. HELD: “In ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.” When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, the trial judge must use the “clear and convincing” standard. Hypothetical Steve files the same lawsuit against Handy Dandy and takes the deposition of Newton, the paint department manager. Newton admits that he had been out to lunch for an hour and a half before the accident and that his assistant, the only other employee who works in the area had been out sick that day. On these facts, Steve might move of summary judgment in his favor on the issue of whether they were negligent. Any party may seek Summary Judgment A motion for summary judgment can be used by any party. Defendants use it to attack meritless claims Plaintiffs use it to attack meritless defenses The motion can be used to dispose of all or any part of the opposing party claims or defenses 12(f) Partial Summary Judgment A party may move to strike from any pleading any insufficient defense or any “redundant, immaterial impertinent or scandalous matter. Rule 12(f) The motion does not challenge the merits of a particular claim, and the pleader is generally given leave to amend. A motion for partial summary judgment may be used to challenge the merits of particular claims or defenses, and to eliminate them from the case. 12(f) Partial Summary Judgment The complaint alleges: “Defendant, acting like the male chauvinistic pig that he is, by conduct which falls beneath the standard of care in the industry subjected plaintiff to unlawful sex discrimination. Therefore plaintiff is entitled to punitive damages. 12(f) Partial Summary Judgment The complaint alleges: “Defendant, acting like the male chauvinistic pig that he is by conduct which falls beneath the standard of care in the industry subjected plaintiff to unlawful sex discrimination. Therefore plaintiff is entitled to punitive damages. 12(f) Partial Summary Judgment The complaint alleges: “Defendant, by conduct which falls beneath the standard of care in the industry subjected plaintiff to unlawful sex discrimination. Therefore plaintiff is entitled to punitive damages. Hypothetical Albert sues Bert for $1,000,000 for personal injuries Albert allegedly received due to Bert’s negligence in operating an automobile in violation of the speed limit. Bert’s answer denies Bert’s negligence and Albert’s damages. Albert moves for summary judgment. Albert supports the motion with evidence demonstrating that Bert was convicted of speeding at the time of the accident. Partial Summary Judgment Although Albert has demonstrated Bert’s negligence as a matter of law, the extent of Albert’s damages is still in dispute. Thus, the court should grant partial summary judgment on the issue of liability. The only remaining issue for trial would be Albert’s damages. Matsushita v. Zenith 475 U.S. 574 (1986); text p. 902 Matsushita Electric Industrial Co. V. Zenith Radio Corp., A plaintiff seeking recovery under the antitrust laws must present evidence that tends to show the inference of conspiracy is reasonable in light of the possible competing inferences of (1) independent action by the defendants and (2) collusive action that could not have harmed the plaintiffs. After canvassing the nature of predatory pricing conspiracies and the defendants’ behavior over the course of the alleged conspiracy involved in the action, the Court concluded that the defendants had no plausible motive to engage in the conspiracy with which they were charged. Effect of Summary Judgment A summary judgment terminates the action without trial. It thus deprives the losing party of any right to a jury. This has been upheld because, there is nothing for a jury to decide when the evidence is no one-sided that one party must prevail as a matter of law. Appeal Issue ???? Liberty Mutual Insurance v. Wetzel 424 U.S. 737 (1976) Liberty Mutual v. Wetzel Liberty Mutual v. Wetzel HELD: A Court of Appeals does not have jurisdiction to review the granting of a partial summary judgment because only a “final judgment” may be appealed. 28 USC 1291.
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