Civ Pro 2 Notes 11/18/04


Summary judgment – Rule 56


This is the most important rule of Civil Procedure!  How does the Rule work?  What happens due to Celotex?  You’re entitled to summary judgment if there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.  So both questions of fact and questions of law can come into play.


Let’s say we have a creditor and debtor.  The creditor holds a promissory note for the amount owed.  The creditor sues on the note upon default.  All you need are an executed note that’s due and hasn’t been paid.  If you can establish those elements, you’re all good.  If the defendant were to file a Rule 12(b)(6) claim, he would lose because we accept all plead allegations as true for the purposes of a pre-trial motion like 12(b)(6).  The Rule won’t test the sufficiency of the allegations if they’re made.  What if the defendant denies all these elements, but then at discovery, the defendant admits that he hasn’t repaid the promissory note.  So then do we have a situation where there is no genuine issue as to any material fact?  That’s right!  How can we get the interrogatory before the court in order to support a motion for summary judgment?  Rule 56(c) tells you that affidavits and other discovery stuff can be used.


Rule 56(e) says that affidavits must be made “upon personal knowledge” and give facts that would be admissible as evidence.  Not every affidavit will be based on personal knowledge or include stuff that could be admitted as evidence.  So you couldn’t submit an affidavit with evidence that would be hearsay if introduced at trial.  What if the plaintiff submits an affidavit saying: “I know the plaintiff signed the note.”  But this is too vague to count as personal knowledge.  If you had information that says the plaintiff watched him sign the note, but the defendant says that he didn’t do it, then there is an issue of fact for the jury.


Don’t mix up the “burden of production” and the “burden of persuasion”.  The burden of production is the obligation to go forward by producing some evidence on an issue.  That may be the same as who has the ultimate burden of proof, or rather, the burden of persuasion, which is the obligation to convince the trier of fact to some level of certainty of the truth of an issue.  Judges can intervene to prevent something from going forward in a lawsuit if plaintiffs cannot meet a minimal showing with the production burden.  But if you can make a minimal showing, you’ll clear Rule 56 and have the chance to get before a jury.  If the plaintiff can make a showing, the burden shifts to the defendant to make some showing that there is an issue of fact for the jury to decide.  Otherwise, if there’s nothing the defendant can say, the plaintiff will be entitled to judgment as a matter of law.


Adickes v. S.H. Kress & Co.


At trial, the plaintiff had the burden of production and persuasion.  On summary judgment, the defendant’s burden was to show that the plaintiff could not prevail at trial.  The defendant, in essence, had the burden of production and burden of persuasion.  The defendant had to prove that the plaintiff couldn’t win.  This case more or less moots summary judgment in federal court practice from the defendant’s standpoint.  The burdens to prove that the plaintiff can’t win would be so heavy that you might as well try the case.


Celotex Corp. v. Catrett


Here’s a wrongful death claim.  When you look at the pleadings, the complaint alleged that the defendant manufactured asbestos, that the asbestos was unreasonably dangerous, that C was exposed to the defendant’s asbestos, and that it caused his death and damages.  The defendant responds by admitting they produced asbestos, but denying basically everything else.  Celotex moves for summary judgment on the issue of exposure.  They claim that this plaintiff has proved that he was exposed to their particular type of asbestos.  The district court grants summary judgment to the defendant.  The court says that there was no evidence that the plaintiff was exposed to Celotex-brand asbestos.  The case will be dismissed.  That’s because there’s no information that the plaintiff came forward with that can show exposure to Celotex asbestos.  That’s a burden they would have at trial as to causation, saying basically “if you can’t do it now, what makes you think you’ll be able to do it at trial?”


The case goes up to the D.C. Circuit, which reverses, saying that the burden of the moving party (Celotex) required it to support its motion with affidavits to negate exposure, that is, to prove that he wasn’t exposed to Celotex asbestos.  The case goes up to the Supreme Court on that issue.  They don’t explicitly overrule Adickes.  Rehnquist says that after a period of discovery, you can get summary judgment against a party if they fail to establish an element that was central to their case and on which they would have the burden of persuasion at trial.  If after discovery, you can’t come up with any evidence of something you have to prove at trial, then there’s no reason to try the case.  Rehnquist suggests that this Rule operates much like Rule 50 (judgment as a matter of law).  When Celotex files its motion for summary judgment, it has to say that the plaintiff failed to produce evidence as to the exposure.  As to that motion, Celotex has the burden of production.  When they do that, the burden of production then shifts back to the plaintiff.  They get their last chance.  Now’s the time they must come up with any evidence.


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