1. CIVIL PROCEDURE CLASS 25 Professor Fischer Columbus School of Law The Catholic University of America October 22, 2003

2. Burden of persuasion for summary judgment motion Which party has the ultimate burden of persuasion on a summary judgment motion?

3. Shifting burdens on the parties on a motion for summary judgment Ask first: which party has the burden of production at trial on essential element of challenged claim? Moving party? Or Non-moving party?

4. Initial Burden on the Moving Party where moving party has burden of production When would the moving party have burden of production? What is the initial burden on the moving party if that party carries the burden of production of challenged element at trial? The burden then shifts to the opposing party What must that opposing party show?

5. What is the Initial Burden on the Moving Party if the Non moving party has burden of production According to the Supreme Court in Adickes? Was this an easy burden to satisfy? What evidence would have satisfied it?

7. Celotex: Distinguishing Adickes According to Rehnquist, was Adickes rightly decided? How should the language from Adickes quoted at CB p. 488 be construed, according to Rehnquist?

8. Celotex Did Celotex increase or reduce the initial burden on the moving party?

9. Brennan’s Dissent in Celotex Why does Justice Brennan dissent in this case? Does Brennan think that Addickes and Celotex can be reconciled? Do you agree? Why or why not?

10. Inferences for Summary Judgment motions The court will believe the evidence of the non-moving party as true All reasonable inferences will be drawn in the non-moving party’s favor

11. WRAP UP: SUMMARY JUDGMENT A form of pretrial adjudication The moving party ALWAYS bears the burden of persuasion on a summary judgment motion to persuade the judge that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. But the burden of production on the motion (presenting evidence that clearly establishes there is no factual dispute) SHIFTS during the motion process.

12. Moving Party Bears Burden of Persuasion At Trial If the moving party ALSO bears the burden of persuasion AT TRIAL on the matter on which summary judgment is sought, then the burden on the moving party on a summary judgment motion mirrors the burden at trial. Moving party must show no factual dispute regarding that matter on which summary judgment is sought. If the moving party’s burden is met (and only if so), then burden shifts to opponent to show there is a genuine issue of fact. If the moving party’s burden is not met, court should grant summary judgment.

13. Non-Moving Party Bears Burden of Persuasion At Trial If the non-moving party bears the burden of persuasion AT TRIAL on the matter on which summary judgment is sought, then the burden on the moving party on a summary judgment motion is to affirmatively show the court an absence of evidence in support of the non-moving party’s claims or affirmative defenses (Celotex). If that moving party’s burden is met the burden shifts to the non-moving party to show that there is a genuine issue of material fact for the fact-finder to resolve.

14. OTHER KINDS OF PRETRIAL ADJUDICATION: BIG PICTURE Rule 12 motions Rule 41 dismissal Rule 50(a) judgment as a matter of law (directed verdict) These are all effectively depriving one party of their right to a trial and so taking cases away from a jury. The rationale for pretrial adjudication is that the evidence does not meet the burden of production line so that if the case was allowed to go to the jury, it would just invite the possibility of an irrational decision/flawed verdict.

15. DISMISSAL Rule 41 Difference between voluntary and involuntary dismissal? Without prejudice/with prejudice? TWO DISMISSAL RULE