Dismissal of a Court Order by xsz60651


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									Summary judgment

     March 31
• 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.
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?
                   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

• 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
              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

• Could P submit her affidavit and the depo
  testimony? Should she do so?
                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?
               Review ?
• What’s the governing standard for the
  grant of a motion for summary judgment?
       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?
• 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
• 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)
    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
• 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?
   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?”
• What kind of discovery must def do to
  show there is an absence of evid?
• 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?
• What if nonmovant doesn’t think def
  has met its burden of production - is it
  safe to just rest on pleadings?

•        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?
• 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)
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?
  When the movant has the BOP,
• 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?
• 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?
• 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?
• 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
• Why does same affidavit lead to
  different results in these two
                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?
   Houchens v. American Home
      Assurance (CB p. 35)
What are the relevant facts?

What’s the issue?

What’s the holding and why?
          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?
             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
               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?
               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

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

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