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Civil Procedure II Outline - Part 20

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<< Part 19 | Part 21 >>

What Evidence is Admissible on Summary Judgment

yyy. Random Rule of admissibility

  1. Unavailability by reason of death
    1. 32a4a

zzz. Majority in Celotex

  1. We do not mean that the non moving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. As long as it is clear at the time of summary judgment motion is made that the evidence will subsequently be put into admissible form at trial there would seem to be little to be gained from requiring the nonvolant to take the time and effort to restructure the evidence at the summary judgment state.
    1. Instead the rule gives the party opposing such evidence the right to “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
      1. The burden is on the proponent to show that the material is admissible as presented or explain the admissible form that is anticipated, if the proponent can not the could will not consider its evidence.
        1. 56
          1. Plain language this test is not whether the evidence itself would be admissible at trial but whether the evidence suggests that the party would be able to offer to offer admissible evidence at trial
            1. on the other hand, had his letter itself revealed a lack of personal knowledge then he could object to evidence being used.
              1. There really isn't a standard form that would be admissible, the trial judge should just make a prediction informed by the rules of evidence.

aaaa. Disposition without trial: Summary of basic Principles

  1. A plaintiff may voluntarily dismiss without court order simply by filing a notice of dismissal before the opposing party serves either an answer or a motion of summary judgment or by stipulation of the parties.
  2. The first such voluntary dismissal by notice (notice dismalls- is without prejudice to commencing a new action for the same claim. But under the two-dismissal rule, the second notice dismissal operates as an adjudication on the merits that precludes suing on the dismissed claims again in federal court.
  3. A plaintiff may also still move for voluntary dismissal by court order. The court considers whether dismissal will cause plain legal prejudice to the defendant beyond simply the tactical advantage that presumably any plaintiff is seeking by dismissal and may take into account the plaintiffs reasons for dismissal. THe court can condition dismissal on the plaintiffs payment prejudice to defendant form dismissal. A voluntary dismissal by court order is without prejudice to commencing an action for the same claims unless the court stated otherwise.
  4. Dismissal for failure of persecution, violation of the rules, and all other dismissal under the rules, ( except for lack of jurisdiction, improver p=value and failure to join a required party operate as adjudication on the merits which usually preclude the dismissed party for commencing a new action in a federal court based on the same claims.
  5. Dismissal for failure of prosecution, violation of the rules and all other dismissal under the rules (except for lack of jurisdiction, improper venue and failure to join a required party operate as adjudications on the merits which usually preclude the dismissed parth for commencing a new action in a federal court based on the same claims.
  6. Summary judgment is a device to dispose of a claim or defense on the merits without trial. But parties are entitled to try factual disputes whether or not they have asked for a jury. THerefore summary judgment is only available when there is no genuine dispute of material facts and the non movant shows that on the undisputed facts, he is entitled to judgment as a matter of law. THe court must ascertain whether there is a genuine dispute of material fact but does not decide any disputes. The court does not weigh the evidence or assess credibility and must resolve doubt in favor of the non-moving party.
  7. Rule 12b6 motions to dismiss for failure to state a claim rule 12c motions for a judgment on the pleadings and rule 50a motions for judgment as a matter of law are also divided that ask a court to dispose of a claim on the merits as matter of law. Rule 12b6 motions are decided on the allegations of the complaint rule 12 c motions on the allegations of the complaint, answer and rely if any and rule 50 a motions on the trial record at the time the motion is made.
  8. The Substantive law determines which facts are material a dispute about the law does not preclude summary judgment
  9. The movants burden on summary judgment depends on whether it would have the burden of proof at trial on a claim of defense. If the movant would have the burden at trial, then its burden on summary judgment is to show that the facts necessary for each element of its claim or defense are not genuinely disputed. If it would not have the burden of proof at trial, then it has two choices to disprove an element of the opposing party's claim or to show that there is an absence of proof in which the opposing party could prove an element of its claim.
  10. A movant for summary judgment may support its motion with evidence that is admissible or could be present in a form at trial that would be admissible form the non-moving party's pleading form the discovery materials on file as well form affidavits and declarations made on personal knowledge by competent witnesses setting out facts that would be admissible.
Judgment as a Matter of Law

bbbb. Motions for judgment as a matter of law under rule 50(a) (directed verdict)

  1. Rule 50 a is used if no reasonable jury could find the facts necessary to for Penny to win and that judgment should therefore be entered in desmond's favor “as a matter of law”
    1. A moving party asks the judge to direct a verdict in his favor because no reasonable jury could render a verdict for the nonmoving party based on the evidence that she presented at trial.

cccc. Performs two important functions

  1. First they notify a non-moving party such that she has failed to offer evidence concerning a key element of her case, thus giving her an opportunity to correct the omissions.
    1. 50(a)2 provides that “the motion must specify the judgment sought and the law and facts that entitle the movant to the judgment
  2. Second, Save time and the expense of presenting his side of the case and would not have to risk a jury verdict. The judge and the jury would not have to hear the rest of a case for which the outcome is clear.

dddd. Motions for judgment as a matter of law under rule 50(b)

  1. If the case goes to a jury, but a reasonable jury could find the verdict decided, the judge can exercise gatekeeping authority.
    1. If the movantant renews his motion for judgment as a matter of law, the judge can set aside the jury's verdict and enter judgment for the correct party instead.
      1. Rule 50 b authorises the judge to grant this renewed motion for judgment as a matter of law which most state courts refer to a motion for judgment notwithstanding the verdict or jnov.

eeee. General Principle

  1. As a general rule judges are supposed to decide legal issues and juries are supposed to determine the facts.
    1. When a judge grants a rule 50 motion, the judge has determined that a party has offered so little evidence that the facts can be determined as a matter of law.
      1. Rule 50 provides that a judge should do so only when a party has failed to offer a legally sufficient evidentiary basis to support a judgment in her favor.

ffff. When has a party offered legally sufficient evidence?

  1. Bainbridge
    1. A rebuttable inference of fact must necessarily yield to credible evidence of the actual occurrence.
    2. Where the evidence is so overwhelmingly on one side as to leave no room to doubt what the fact is the court should give a prefatory instruction to the jury.
      1. Gives scientific certainty to the law in its application to the facts and promotes the ends of justice.
    3. Bainbridges testimony was “insufficient to rebut the substantial and contrary direct testimony that the railroad had offered.
  2. The Test for sufficiency
    1. Whether the evidence is such that without weighing the credibility of the witness or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable person could have reached. Wright V. Miller
  3. In Entertaining a motion for judgment as a matter of law the court should review all of the evidence in the record.
    1. The court must draw all reasonable inferences in favor of the non movant party and it may not make credibility determinations or weigh the evidence. “Credibility determinations, the weighing of the evidence and the drawing of legitimate inferences from the facts are jury functions not those of a judge.
      1. Thus, although the court should review the record as a whole it must disregard all evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and impeach at least to the extent that the evidence comes from disinterested witnesses.

gggg. Judicial Reluctance to grant rule 50(a) motions

  1. The answer turns on pragmatic concerns about what will happen if the judges grant the rule 50 a motion the losing party is likely to appeal =, arguing that the judge should have permitted her case to proceed to a jury verdict. If the appellate court agrees with Penny the court will remand the case for a retrial. Judges prefer to avoid this risk of a time-consuming and expensive retrial and thus grant rule 50 a motion only when the argument for doing so is so strong and the likelihood of reversal is low.
    1. This reluctance is especially understandable in light of what will happen if the judge denies a rule 50 a motion, the jury will probably see the weakness and render a verdict for that prayer anyway. If not rule 50 b gives the judge an opportunity to revise the decision to deny the rule 50a motion after the verdict.

hhhh. No reluctance for 50 (b)

  1. When an appellate court reverses a 50 b motion the appellate court has determined that the jury's verdict was reasonable and should ont have been set aside. Under these circumstances the appellate court can remand the case with an instrument for the trial court to enter a judgment based on the jurys original verdict.
    1. No need for a retrial

iiii. The Legal Fiction of the renewed motion.

  1. The Supreme Court upheld the entry of summary judgment and that it is not a violation of the right to a jury trial.
    1. The court reasoned that if a party makes a motion for judgment as a matter of law under rule 50 (a) before the case goes to the jury and the judge does ont grant the motion, the judge is considered to have conditionally submitted the case to a jury and can reassess the sufficiency of the evidence after the verdict. 50(b)
      1. If the court does not grant a motion for judgment as a matter of law made under rule 50a the court is considered to have submitted the action to the jury subject to the courts later deciding the legal questions raised by the motion.
  2. Policy reasons for rule 50 b
    1. Without them judges would have no opportunity to correct an unsupportable jury verdict knowing that they lack this power, judges would be more inclined to grant rule 50 a motion in order to avoid the possibility of an unsupportable jury verdict.
      1. But granting more rule 50a motion also increased the likelihood of time-consuming and expensive retrials. The safety net of ulre 50(bz0 therefore gives judges a greater incentive to permit the case to proceed to a jury verdict.

jjjj. Why not summary judgment

  1. First the parties might not have taken much if any discovery especially if the case involved relatively limited damages and the absence of any evidence to support penens case might only become apparent at trial.
  2. Second, even if the parties took discovery, the evidence is not necessarily presented the same way at trial.
  3. Summary judgment and judgments as a matter of law involve an examination of different information at different times in the litigation process. The standard that applies to each type of judgment however is identical.

kkkk. 1091 Chart Look it up.

llll. The Scintilla Alternative

  1. In these states a court will deny a motion for judgment as a matter of law if the non-moving party has offered a mere scintilla of evidence in support of its position.
    1. These courts refuse to consider the quantity or quality of the evidence that is being presented. Thus the motion only succeeds or fails based only on a consideration of the non-moving parts evidence.
      1. Downside
        1. Undermines a court's ability to prevent a patently unreasonable jury verdict.
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