Motion to Dismiss v. Motion for Summary Judgment

1. FRCP 56: Summary Judgment

   1. focuses on the facts

   2. Goal to resolve disputes without enough evidence to send to jury (mid 20th century invention)

3. Jury decision in civil trial based on preponderance of evidence, about 51%

4. Malice standard is stronger - clear and convincing, about 66%

   1. SJ in defamation cases - proof of malice must be clear & convincing to survive SJ

      1. Anderson v. Liberty Lobby (US 1986) p. 469 (full case at supp. p.16)

         1. tractor beam idea - burden of persuasion used at trial affects the burden of production

            1. moves over jury land because of increased burden of persuasion in defamation cases

         2. Standard of proof in SJ is identical to standard of proof for a directed verdict, Rule 50(a).

         3. Brennan dissent - confuses roles of trial judge & jury; should only need prima facie case to get to jury

5. Plaintiffs want jury land-> 20-80%

6. Proponent is whoever bears burden of persuasion - shifts based on party presenting evidence

7. 56(a) - SJ shall be granted when there are no disputed issues of material fact and movant is entitled to judgment as a matter of law

8. 56(b) - may file SJ motion anytime until 30 days after end of discovery

9. 56(c) - Procedure

   1. 56(c)(1) - party moving for SJ must support motion with evidence or point to lack of evidence of a genuine issue of fact

   2. 56(c)(2) - a party may object that evidence is inadmissible

      1. Just demeanor evidence is usually not enough to get to jury land, but SJ is improper when credibility is a genuine issue.

         1. Arnstein v. Porter (2nd Cir. 1946) p. 455

            1. P sued Cole Porter for copyright infringement on songs; complaint was farfetched, but court listened to the songs and found enough similarity to go to the jury on his credibility.

   3. 56(c)(3)- court may consider other evidence in the record

   4. 56(c)(4) -affidavits must be made on personal knowledge, and set out facts admissible in evidence

      1. Dyer v. MacDougall (2nd Cir. 1952) p.458

         1. P accused Ds of libel and slander, but all the Ds denied saying the slanderous things. P's evidence was his inadmissible affidavits. Judge offered P the time to take depositions, but when P did not do so, judge granted SJ. P need only have offered conflicting evidence to defeat SJ motion.

10. 56(d) -when facts to dispute a motion for SJ are unavailable

    1. 56(d)(1) - court may defer or deny motion

    2. 56(d)(2) - court may give nonmovant time to gather evidence to oppose motion (see Dyer v. MacDougall)

11. 56(e) - nonmoving party may produce evidence that challenges assertion that there are no issues of material fact

    1. If there is a genuine dispute, summary judgment will not be granted - not meant to try the facts

    2. Need enough evidence to send to jury

12. Other notes on SJ

    1. Can be used to resolve individual claims in a multi-claim lawsuit, or claim against one of several joined parties

    2. Both parties may move for SJ if agree on the facts but disagree on legal remedy

    3. Cary Grant hypo - how much to include?

    4. The 2010 revision to Rule 56 tried to simplify it, but now the pincites in cases don’t match.

       1. References to 56(e) in Celotex & Adickes now refer to 56(c) (nonmovant must respond to SJ motion with specific facts showing genuine issue for trial rather than rest on allegations in pleadings).

13. Old Rule: Movant must produce evidence proving absence of issue of material fact

    1. Adickes v. S.H. Kress & Co (US 1970) p.434

       1. White woman brings black students into a restaurant and is refused service, then arrested for vagrancy after leaving. P sues restaurant for conspiracy with police to arrest her. Trial Court granted SJ for restaurant, SCOTUS reversed.

       2. D submitted affidavits of store owner and two arresting officers, but they did not negate the possibility that there was a policeman in restaurant while P was there with whom the owner could have had some understanding , and D didn't submit affidavit of waitress who refused service, so no SJ.

       3. Legal realist point - incident occurred before Civil Rights Act but in...