National Lead Litigation Conference 2015 November 5-6, 2015

Motions for Summary Judgment What now?

Speakers Frank F. Daily The Law Offices of Frank F. Daily, P.A McCormick Road Executive Plaza III – Suite 704 Hunt Valley, Maryland (410) David F. Albright, Jr. The Law Offices of David F. Albright, Jr., P.A. 201 N. Charles Street 5 th Floor Baltimore, Maryland (410)

Rule MOTION FOR SUMMARY JUDGMENT (a) Motion Any party may make a file a written motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law. The motion shall be supported by affidavit if it is (1) filed before the day on which the adverse party's initial pleading or motion is filed or (2) based on facts not contained in the record. A motion for summary judgment may not be filed: (A) after any evidence is received at trial on the merits, or (B) unless permission of the court is granted, after the deadline for dispositive motions specified in the scheduling order entered pursuant to Rule (b)(1)(E). Rule MOTION FOR SUMMARY JUDGMENT (a) Motion Any party may make a file a written motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law. The motion shall be supported by affidavit if it is (1) filed before the day on which the adverse party's initial pleading or motion is filed or (2) based on facts not contained in the record. A motion for summary judgment may not be filed: (A) after any evidence is received at trial on the merits, or (B) unless permission of the court is granted, after the deadline for dispositive motions specified in the scheduling order entered pursuant to Rule (b)(1)(E).

This Rule does not prevent the trial court from exercising its discretion during trial to entertain any motions in limine or other preclusive motions that may have the same effect as summary judgment and lead to a motion for judgment under Md. Rule 2-519…………………………………………Such a procedure avoids confusion and potential due process deprivations associated with summary judgment motions raised orally or at trial. See Beyer v. Morgan State Univ., 369 Md. 335, 359, fn. 16(2002); see also Hanson v. Polk County Land, Inc., 608 F.2d 129,131 (5th Cir. 1979) (allowing oral motions for summary judgment leads to confusion with each side having a different recollection of what was contended.) Requiring a written motion also insures adequate notice to all sides.

Two areas of Concern 1 – Due Process 2 – Evidentiary Issues

Rule and Motions in Limine

(a) Generally. A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence. The moving party shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment shall be necessary. A party does not waive the right to make the motion by introducing evidence during the presentation of an opposing party’s case. (b) Disposition. When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made. (a) Generally. A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence. The moving party shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment shall be necessary. A party does not waive the right to make the motion by introducing evidence during the presentation of an opposing party’s case. (b) Disposition. When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.

Where to file? –too early? What if late evidence? –Affidavits with Response? –Pittman?? Affidavits for more discovery Federal Rules Practical Considerations