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Summary Judgment And The Trial Outline

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Summary Judgment - FRCP - 56 a. Synthesized Rule/Procedure i. D* may move for summary judgment any time until 30 days after discovery closes. It is usually not done until after pleadings and discovery, since it is highly factual based, and P* may show that P* needs more time. b. Textual Rule i. Standard: D* must show there is no genuine dispute of material fact, and D* is entitled to judgment as a matter of law. FRCP 56(a)

1. Burden of Proof: D* wins by showing that P*'s materials do not establish presence of genuine dispute or produce admissible evidence to support the fact. FRCP 56(c)(1)(B).

2. Discretion: court shall, but does not have to grant motion. FRCP 56(a). ii. Procedure: D* may move or court may order summary judgment sua ponte after giving P*
notice and a reasonable time to respond. FRCP 56(f). iii. Timeline: available any time until 30 days after discovery closes. FRCP 56(b).

1. Scheduled SJ: this may be scheduled by the FRCP 16(b) conference. FRCP 16(c)(2)(E).

2. Nonmovant Protection: If P* shows that it cannot present facts to justify opposition to
D*'s motion, the court may defer considering the motion, allow more discovery, or issue another order. FRCP 56(d). c. Analysis i. Procedure

1. The procedure within the motion is that P* who would bear burden at trial must shift the burden before D* is required to respond, regardless of who movant is. a. In other words, SJ may be unsupported by any facts of D* if P* has burden at trial. This allows for out-of-the-box motions. i. The tactical reason to do this is under 56(d), court may limit P*'s available discovery. b. So if P* needs to prove D* hit him with his car, P* must show some admissible evidence before D* needs to do anything; D* does not need to provide evidence D* is not guilty otherwise. ii. Burden of Proof

1. Summary judgment is granted when a P* has burden of production that a jury could find for P*, but fails to meet it. a. It goes against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, on which the party bears the burden of production at trial. Celotex.

2. P*'s evidence may be so strong---the judge must find for P*---that the burden shifts to
D*, who must show evidence that could allow judge to go the other way.

3. The modern standard is a combination of the following three, with an emphasis on the first two: a. Louis Standard: D* must show an absence of proof of an essential element of
P*'s case. b. Currie Standard: same standard in JNOV as summary judgment; if no JNOV burden, no SJ burden. c. Adickes Standard: D* must establish truth of position whether or not would have burden of proof at trial.

4. The difference between the first two (i.e. Celotex) and the last is Celotex requires P*
with burden to prove that jury could find for it, while Adickes requires D* prove jury could not possibly find for P*. a. The new rule requires that substance of P*'s evidence be admissible at trial, i.e. same as 50(a). Argo v. Blue Cross Blue Shield of Kan. (10th Cir. 2006). iii. Timeline

1. This may be brought up out of the box, especially when 12(b)(6) motion is unwinnable because P* stated a claim, but that claim was not backed up with sufficient evidence. iv. Compared to 12(d) Presenting Matters Outside the Pleadings

1. This is the first opportunity for parties to show factual deficiencies. Distinct from 12(d) presentation of matters outside the pleadings in that regard, which concerns the introduction of additional material not included in the pleadings and is meant to facilitate quick dismissal. v. Compared to 50(a) Judgment as a Matter of Law

1. The standard is identical, although it did not used to be. Reeves v. Sanderson Plumbing Prod. Inc. (U.S. 2000).

2. The old standard was D* had to prove the truth of each element even if it did not have the burden to do so in trial. Adickes. d. Cases

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