SUMMARY JUDGMENT Three different types of SJ: If movant has burden at trial: o 1.

. Proof of the elements must show that the existence of the facts necessary to support each element of his/her claim is not disputed If movant would NOT have burden at trial, he has two choices: o 2. Disproof of an element Submit affirmative evidence that negates an essential element of non-moving partys claim o 3. Absence of proof no evidence of an element of Ps claim - FRCP 56(c)(1)(B) RULE 56(a): movant shows there is no genuine issue as to any MATERIAL FACT and the movant is entitled to a judgment as a matter of law o Genuine= o 56(b): file a motion up to 30 days after close of discovery 56(c): o 56(c)(1)(A): lists materials that may be considered in deciding SJ movant may support its motion with admissible evidence from non-moving partys pleadings, discovery materials on file, & affidavits/declarations made on personal knowledge by competent witnesses setting out facts that would be admissible at trial o 56(c)(1)(B): a party may prove the absence of genuine dispute by showing that an adverse party cannot produce admissible evidence to support the fact o 56(c)(2): a party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence o 56(c)(4): narrow exception: could use an affidavit or declaration to support or oppose a motion that shows it is made on personal knowledge, sets out facts that would be admissible in evidence, and shows that the affiant or declarant is competent to testify on the matters stated.

STANDARD no genuine issue of material fact, completely uncontroverted evidence o o o Policy: Burden of proof on moving party. o where nonmoving party has BOP, SJ should be granted if that party can produce no admissible evidence in support of one or more elements of its claim o where moving party has BOP, SJ should be granted only if that party can produce slam-dunk evidence in support of every element of its claim

CASES Slaven v City of Salem: (Mass. 1982) o Facts: o Who filed SJ motion? Type of summary judgment: Support for the motion:

o Adversarys response: o Holding: Duplantis v Shell Offshore, Inc.: (5th Cir. 1991) o Facts: o Who filed motion for SJ? Type of SJ: Support for the motion: Adversarys Response: o Holding:

HYPO. Pete was walking along a rural road one night when struck by Dougs car. There were two eyewitnesses to the accident. In this jurisdiction, in order to recover, Pete has the burden of proving that defendant caused the accident by driving negligently. Doug has moved for summary judgment and has presented his own properly sworn affidavit and the affidavit of the two eyewitnesses, all of which state that he was driving carefully, when all of a sudden, Pete stepped out into the road right in front of the car, making the accident unavoidable. Discuss whether a Motion for SJ should be granted in the following situations: 1. Doug moved for summary judgment and Pete responds with his own sworn affidavit, stating that he was walking along the side of the road, when he saw Dougs car coming toward him, and at the last minute the car swerved into him. Pete has previously been convicted of perjury in another case. The evidence rules in this jurisdiction will allow Pete to testify at trial, but the jury will be told that he is a convicted perjurer. 2. Now assume that when Doug moved for summary judgment, Pete responds with his own sworn affidavit stating that he was walking along, minding his own business, heard squealing tires, and the next thing he knew he woke up in the hospital.

3. Now assume that when Doug submits his own affidavit and the affidavits of the two witnesses supporting his version, Pete responds with 1) the affidavit of Benny Bartender, who testifies that he served three or four drinks to Doug at his bar 5 miles from the accident scene, and that when Doug left the bar about 15 minutes before the accident, he seemed somewhat intoxicated, but not really drunk, and 2) a certified copy of Dougs driving record, which shows that he was twice convicted of DUI and has a number of other citations for reckless driving. May the court grant Dugans motion for summary judgment? 4. Now assume for this question that the two eyewitnesses both support Petes version of what happened (Doug swerved into him) and Pete makes the motion for summary judgment supported by the affidavits of the two witnesses who say it was Dougs fault. Doug responds with only his own affidavit, saying he doesnt remember the accident due to traumatic amnesia and can find no other witnesses. Should the motion be granted?