STAGE ISSUE RULES DESCRIPTION RELATED CASES/RULES

PERSONAL
JX
Pennoyer—the court must have a proper basis and assertion to Pennoyer v. Neff
establish jurisdictional authority over D.
Min Contacts: International Shoe—for a state to subject a nonresident D to in International Shoe Co. v.
Sufficient Contacts personam jurisdiction, Due Process requires that the nonresident D Washington
that P purposefully have certain min. contacts with the state such that the maintenance
availed themselves of the suit does not offend traditional notions of fair play and
D to the forum substantial justice.
(Constitutional Purposeful Availment Minimum Contacts McGee—Due Process requires only that to subject a nonresident D McGee v. International Life
Analysis) Test for Contracts to the personal jurisdiction of the forum, the suit be based on a Ins. Co.*
contract that has substantial connection with the forum.
Burger King v. Rudzewicz
Burger King—whether jurisdiction comports with the notions of
substantial justice and fair play is determined by applying both the Hanson v. Denckla*
minimum contacts (D purposefully availed itself as to make it
‘foreseeable’ that he would be haled into court in the forum for a
case of this type) and reasonableness tests. Hanson, is distinguished from
McGee even though it was
Hanson—For there to be “minimal contacts” sufficient to support in decided only year later.
personam jurisdiction, it is essential that there be some act by which
the D purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and
protections of its laws. The minimum contacts standard cannot be
satisfied by the unilateral activity of someone who has a relationship
with the D. (D is not considered to have “purposefully availed”
itself if it inadvertently engaged in activities due to a relationship
with someone).
(Constitutional Specific Jx— Stream of Worldwide Volkswagen—foreseeability alone is not sufficient to Worldwide Volkswagen v.
Analysis) Commerce test establish that D had purposefully availed itself to the court’s Woodson
Products liability jurisdiction unless it can be shown that D had purposefully or
Stream of expressly aimed its products to the forum’s market.
Internet Commerce (+) test Asahi Metal Industry Co. v.
Asahi—purposeful availment is satisfied when D seeks to directly or Superior Court
indirectly serve the market of the forum.
 Zippo Interactivity Abdouch—jurisdiction over D is proper if he/she/it engaged in Abdouch v. Lopez
Test (purposeful conduct purposely directed at the forum state. (Note: Calder Effects
availment test for Test is used to determine whether D purposely directed its conduct
internet) towards the forum with the intent of having the harmful effects of
such conduct be felt by P.)
Calder Effects Test - Zippo was used for “purposeful availment” in internet cases
(purposeful - Calder was used for “purposeful availment” in regard to
availment test intentional harm
regarding intent to - FPSJ must still be used to argue “fairness”
harm)

(Statutory General Jx Gen Jx Chart. If D’s ties to the forum are so continuous and systematic as to act Hertz v. Friend
Analysis) as a proxy for presence, then the defendant might be amenable to
“Nerve Center” suit under general jurisdiction, even if the cause of action does not
Test arise out of the contact.

General jurisdiction—D is domicile (“at home”)

- Individual: 1 domicile (“intent to reside indefinitely”)
- Corporation: 2 domiciles (ex. “nerve center”/ HQ + incorp.)

Hertz— “nerve center”

(Statutory Tag Jx Scalia’s ‘Tag’ Test Burnham—tag jurisdiction allows a transient D to be served with Burnham v. Superior
Analysis) process while physically within the territorial boundaries of the state
Brennan’s irrespective of the D’s contacts or the action brought (this is the
‘Contacts’ Test definition using Brennan’s ‘Contacts’ test since his was the
narrowest opinion – Mark’s Rule)
*Note: unanimous
outcome in Tag jurisdiction is invalid if it was procured by fraudulent or
[Burnham] but 4-1-4 forceful service (P brings D into a state by fraud or force to serve
split re: reasoning process) OR if D is in state solely to take part in a judicial
proceeding, or passing through on his/her way to a proceeding
elsewhere and thus granted immunity.
(Statutory Consent as Basis— Valid Forum Carnival—forum selection clauses are a type of advanced consent Carnival Cruise Lines, Inc. v.
Analysis) Selection Clause subject to judicial scrutiny for fundamental fairness. An enforceable Shute
Express: Forum Test forum selection clause establishes grounds for a forum to assert its
selection clause jurisdiction over parties in a matter that it otherwise wouldn’t be
 allowed to do under the min. contact requirement.
Implied
P who files suit in a forum implicitly consents to PJ for all matters
arising in that suit including counterclaims and crossclaims.
(Statutory Statutory Restraints— 4(k)(1)(A) 4(k)(1)(A)— “Serving a summons or filing a waiver of service Gibbons v. Brown
Analysis) Long Arm Statutes establishes personal jurisdiction over a defendant who is subject to
Tethering Rule the jurisdiction of a court of general jurisdiction in the state where
the district court is located.” (This is a “tethering” rule in which a
fed. ct.’s jurisdictional reach goes only as far as the jurisdictional
reach of the state in which it sits.)

Gibbons—jurisdiction must fall within the state’s long-arm statute,

even if such a statute limits the scope of jurisdiction to less than
what is constitutionally permissible.

4(k)(2)— “for a claim that arises under federal law, serving a

summons or filing a waiver of service establishes personal
4(k)(2) jurisdiction over a defendant if (A) the defendant is not subject to
(Civil Rico Act) jurisdiction in any state’s courts of general jurisdiction; and (B)
(Aliens) exercising jurisdiction is consistent with the U.S. Const. and laws.”
(If 4(k)(1)(A) doesn’t apply, then fed. jurisdiction with respect to
claims arising under fed. law and constitutional)
Challenging Personal 12(b)(2) See Pleadings; Pre-Answer Motions for more info on 12(b)(2).
Jx (Lack of PJ motion)
“Special” and “General” appearances have been abolished.
1. FRCP 12 has replaced special and general appearances. FRCP
Special Appearances 12:
(Old School) a. Allows merits of case + personal jurisdiction to be defended
simultaneously
b. Est. how and when one raises the matter of personal jurisdiction

(Constitutional Constitutional
Analysis) Requirement of Notice
Types of Service Mullane—notice must be reasonably calculated, under all Mullane v. Central Hanover
List circumstances, to apprise interest parties of the pendency of the Bank & Trust Co.
action and afford them an opportunity to present their objections.
Fair Notice Test Jones v. Flowers
Jones—If P knows the notice was not received, he may not proceed
 Notice for Multiple in the face of such knowledge if feasible alternative to apprise the D
Persons exists (i.e. post notice on door of last known address or send notice
by regular mail addressed to “occupant” in hope they will forward).
(Constitutional Mechanics of Notice in 4(a)-(e) 4(a) (1)—Summons must: (A) name the court and the parties (B) be
Analysis) the Federal System Standards of directed to the D (C) state the name and address of P’s attorney or—
Summons if unrepresented—of the P (D) state the time within which D must
appear + defend (E) notify D that a failure to appear + defense will
4(h) result in default judgment against D for the relief demanded in the
complaint (F) be signed by the clerk; AND (G) bear the court’s seal
12(a)(1)
4(b)—On or after filing the complaint, P may present a summons to
12(a)(4) the clerk for signature + sea. If summons is properly completed, the
clerk must sign, seal, and issue it to P for service on the D.
Summons that is addressed to multiple Ds must be issued for each
D.

4(h) Serving a Corporation: 1. Can use 4(e) similar to individual.

2. By delivering service to an officer, manager, or general agent, r
another agent authorized to receive service.

4(d)—Waiver 1. D has the obligation to avoid unnecessary expense

*30 days to respond of serving summons so P may notify D by mail and request D waive
to waiver in US personal service, giving them 30 days in US or 60 abroad to answer
Giving 60 days to waiver. 2. If they fail to wave D incurs the expenses of personal
Answer complaint. service. 3. D waives personal service; they need not answer
90 in other countries. complaint until 60/ 90 days after waver sent.
(From time waiver
was sent) 4(e)—Serving an individual within US. 1. Service may be done by
following state laws for service if General Jurisdiction of D or 2(A)
delivering a copy of summons and complaint to the individual
personally. (B) Leaving a copy at the individual’s dwellings or usual
place of residence with someone of suitable age who also resides
there. (C) Delivering a copy to an agent authorized by appointment
or law to receive service.
SUBJECT
MATTER JX
Federal Question Jx Well Pleaded Mottley—Under the well-pleaded complaint rule, P’s initial Louisville & Nashville R.R.
Complaint Rule. complaint must assert claims arising under federal law to invoke v. Mottley
federal question jurisdiction. Raising federal issues in a response to
28 U.S.C. § 1331 D’s anticipated defenses are not sufficient for the purposes of
invoking federal question jurisdiction.
U.S. Const., art. III
§§ 1-2 (lists Federal § 1331: D.C.s shall have original jurisdiction over all civil actions
Issues: Maritime arising under the Constitution, Fed. Laws, treaties of the U.S.
Etc.)
-Suits against federal officer brought in fed court that will invoke a
federal defense are not subject to Well Pleaded complaint rule.
-If “Bundle of federal and state issues: look to Fed Q. to see if
substantial party of resolving P’s compliant.
Challenging Subject 12(b)(1) See Pleadings; Pre-Answer Motions for more info on 12(b)(1) and
Matter Jx 12(h)(3): May be raised at any time.
Diversity Jx and Art III + Mas—a change of domicile may be affected only by the Mas v. Perry
Alienage Jx 28 U.S.C. §§ combination of 2 elements: (a) taking up residence in a new forum
1332(a)-(c) with (b) the intent to remain there indefinitely.

Modern § 1332: (a) If complete diversity between parties of different state

‘Domiciliary’ Test and foreign persons, foreign state, etc.
and (b) Matter in controversy must exceed $75,000.
Nerve Center Test (c) Corporation shall be deemed citizen of every State by which it
has been incorporated and state where it has its principal place of
business.
Supplemental Jx 28 U.S.C. §§ United Mine Workers— required that (1) there must be a federal United Mine Workers of
1367(a)-(c) claim and (2) the non-federal claim arises “from a common nucleus America v. Gibbs
of operative facts” such that a Plaintiff “would ordinarily be
Well Pleaded expected to try them in one judicial proceeding.”
Complaint Rule
§1367 (a) In any civil action of which D.C.s have Original
Aggregation Jurisdiction, the D.C. shall have supplemental jurisdiction over all
Ds may not be added other claims that are so related to O.J. claims so that they form part
at all if claim against of the same case or controversy under article III. (Including joinder
them is less than or intervention of additional parties).
75K. (b) If O.J. under 1332, D.C.s shall not have Supp. J. under
 D: Can’t be added subsection (a) against persons or parties joined BY P under RULE
under 14, 19, 20, 24 14, 19, 20, 24, OR over claims of plaintiffs joined under 19 or 24
when these changes would be inconsistent with rules under
1332.
(c) D.C. may decline to exercise Supp. J. over a claim if
(1) the claim raises novel or complex issues of state law.
(2) State law claim predominates over the Fed. Law claim.
(3) D.C. has dismissed all claims over which it has O.J.
(4) In exception circumstancescompelling reasons to decline.
Removal Jx 28 U.S.C. §§ 1441 (a) Except as otherwise prided by acts of congress, any civil
1441(a)-(c) action brought in a state court of which the D.C. have Original
Jurisdiction, may be removed by the defendant or the defendants to
Home State Rule the district court (division) where state claim was filed.
(b) Diversity Jurisdiction: (1) no fictitious names (2) cant be
Only Ds can removed if any D is in their home state
remove. (c) Fed and State Law Claims: (1) If there is a Fed Q claim and State
claim and the Fed Q claim would be removable regardless of State
claim, then those are both removable. (2) If the state claim must be
settled in state court the judge may remand only that portion of the
28 U.S.C. §§ claim.
1446(a)-(c)
§1446(a) only defendant can remove and must serve P.
(b) 30 days to file notice for removal after summons served on D.
All D must Consent (2)(A) All Ds must consent to removal.
(B/C) 30 days from last D receiving summons.
(c) Requirements for Diversity.
Can’t remove on (1) May not be removed more than 1 year after commencement
fed counterclaim or of the action, unless the D.C. finds plaintiff acted in bad faith.
affirmative defense (2) Sum demanded must meet 75k+ amount in controversy
by D. requirement.

§ 1447 Procedure After Removal: (a) (b) Motion to remand must

28 U.S.C. § 1447 be done with in 30 days after filing the notice of removal (other than
lack of SMJ, which can be made at any time). (c) If after removal
the P seeks to join additional defendants that destroy SMJ, court
may deny joinder or permit and remand to state court.
 Choice of Law Erie Guess: Best Erie—Federal courts must follow state statute and common law Erie R.R. v. Tompkins
guess: 1. Look at when dealing with state law claims (in diversity/ supplemental jur).
what other states do. No more General Law where Fed courts create their own precedent.
2: Does state peg
law to another? 3. Klaxon—Federal Courts must follow forum state’s choice of law Klaxon v. Stentor Electric
Based on regulatory rules: must follow choice of law rules from the state they sit in. Manufacturing Co.
standard? (which jurisdictions law do we apply in diversity cases?)
VENUE
Federal District Court 28 U.S.C. § 1391 Thompson—venue is improper if §1391(b)(1), (b)(2), or (b)(3) is not Thompson v. Greyhound
Venue satisfied. Where venue is improper in a federal district, but would be Lines, Inc.
28 U.S.C. § 1406(a) proper in a different district, a case will be transferred to the proper
district instead of being dismissed where doing so service the
28 U.S.C. § 1404(a) interests of justice.

12(b)(3) §1391(b)(1)—a judicial district in which any defendant resides, if

all defendants are residents of the state in which the district is
located
(b)(2)—a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is situated; OR
(b)(3)—if there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in which any
defendant is subject to the court’s personal jurisdiction with
respect to such action.

§1406(a). Improper Venue Transfer Statute—the district court of a

district in which is filed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have been
brought. (Cases that are filed in the improper venue can be
transferred to the proper venue because of “inter-district” transfer
within the fed. ct. system)

§1404(a). Forum Non-Convenience Statute— “For the convenience

of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where
 it might have been brought or to any district or division to which all
parties have consented.” (federal courts are authorized to transfer
cases between one proper venue to another venue to convenience
the parties and/or witnesses in the suit.)
PLEADING
Complaint 8(a) See Pleadings; Pre-Answer Motions for more info on 12(b)(6) Haddle v. Garrison

12(b)(6) 8(a)—A pleading that states a claim for relief must contain:
1. a short and plain statement of the grounds for the court’s Subject
Plaintiff would Matter Jurisdiction, unless the court already has jurisdiction and the
ideally argue their claim needs no new jurisdictional support.
case is similar to a 2. a short and plain statement of the claim showing that the pleader
FORM 11 case (less is entitled to relief; AND
factual enhancement 3. A demand for relief sought, which may include relief in the
needed) low level of alternative or different types of relief.
complexity. *each fed. district has adopted its own local rules of procedures that
“add on” to FRCP 8. Ex. most district cts. will make P plead why
venue is proper in its complaint.

Haddle—a court should not dismiss a complaint for failure to state a

claim unless it is clear that P can prove no set of facts in support of
his claim which would entitle him to relief.
Complaint – Modern ‘Twiqbal’ test Conley—12(b)(6) motion to dismiss should be denied unless it Conley v. Gibson
Plausibility Standard appears “beyond doubt” that P could prove no set of facts in support
Legal conclusions of the claim that would entitle him to relief. (‘No set of facts’ test – Bell Atlantic v. Twombly
are not entitled to old rule)
presumption of Ashcroft v. Iqbal
truth. Twombly—Complaint must include facts that give rise to a
plausible, not merely conceivable, entitlement to relief. (threshold
Must Allege facts to for plausibility addressed by Iqbal)
support each legal
element of relief Iqbal—Plausibility standard states that the factual allegations, when
taken as true, support a plausible inference that each of the elements
Plausibility of the claim have been satisfied without any other likely plausible
Standard alternative explanation.
Complaint –Heightened 9(b)* Stratford—to enact Rule 9(b), D must: 1. show factual Stradford v. Zurich Ins. Co.
Pleading Standard *Rule 9 is the particularities of the case (i.e. time (when did the fraud took
exception to Rule 8 place), place (where the fraud took place), manner/ nature of the
alleged misrepresentation (what misrepresentation is P claiming as
Reputational fraud)) and 2. Allege facts that support a “strong inference” of
concerns for fraudulent intent. (Size and timing of clam in Zurich, and refusal
Frivolous fraud to cooperate with insurance claim’s investigation = strong inference)
claims.
Allocating the Burden Jones—Failure to exhaust is an affirmative defense that must be Jones v. Bock
of Pleading plead and proven by D
Rule 11 Walker—Rule 11 imposes sanctions for failure to conduct adequate Walker v. Norwest Corp.
Normally award legal research
only attorneys fees Christian—Rule 11 imposes sanctions for failure to conduct Christian v. Mattel Inc.
from violation. adequate factual research

11 11—(A) Signature by an Attorney or by Unrepresented person.

(B) Representations to the courtAttorney certifies that to the
(21 days after best of his knowledge formed after an inquiry reasonable under the
service of rule 11 to circumstances (did the research). (1) it is not being presented for any
modify before filing improper purpose. (2) Claims, defenses and other legal contentions
in court) are warranted by existing law or by non-frivolous arguments for
extending modifying or reversing existing law or for establishing
new law. (3) Factual contentions have evidentiary support or will
likely have such after further investigation. (4) Factual denials are
warranted on the evidence or based on reasonable belief.
(C) Sanctions A motion for sanctions must be made separately
from any other motion and must describe the specific conduct that
allegedly violates rule 11(B). Motion must not be presented to the
court unless the other party does not correct the issue within 21 days
after service. On its own: The court may order an attorney, law firm
to show cause why its conduct has not violated rule 11(b)
Nature of Sanctions: Must be limited to what suffices to deter
repetition of conduct by others similarly situation. May have
nonmonetary directive (take a class), an order to pay a penalty
into court, order directing payment to the movant of all or
reasonable part of attorney’s fees and other expenses directly
incurred from violation.
 Limitations to Monetary Sanctions: May not impose sanctions
against: A represented party violating 11(b)(2). Or on its own unless
it issued the show-cause order under 11(c)(3) before voluntary
dismissal or against a party whose attorneys are to be sanctioned.
Order must describe the sanctioned conduct and basis for sanction.
Pre-Answer Motions 12 12(a)—21 days to respond to summons/complaint. 14 days to
(b) (2-5 in answer) respond with a motion if court requests. (60 if Gov’t employee or
(1) Lack of SMJ accept waver of service. 90
(2) Lack of PJ 12(b) LEFT
(3) Improper Venue 12(c) Party may move for Judgment on the Pleadings: (12(b)(6)
(4) Insufficient motion but after the pleadings are submitted.
service of process 12(e)—More definite statement, response due from Pleader within
(5) Insufficient 14 days. (so vague or ambiguous response cannot be framed)
Service of process 12(f)—Motion to Strike, Court may strike bad defense, redundant,
(6) Failure to state a immaterial, or scandalous matter on its own or on motion within 21
claim upon which days within 21 days after being served. (not legit defense)
relieve can be 12(g)—Right to Join, any motions may be joined together. Cant
granted raise a defense or objection if it could have been raised previously
(7) Failure to Join except as below:
Parties. 12(h)—A party waives any defense listed in 12(b)2-5 by not filing it
in Answer OR failing to make it by motion under this rule or ii
include it in responsive pleadings or in an amendment allowed by
rule 15(a)(1). SMJ can be raised at any time.
Defenses, Admissions 8(b) 8(b) 1. When responding to a pleading (A) short and plain terms
and Denials describing defense to each claim asserted against it and (B) admit or
deny allegations asserted against it by opposing party. 2. Denials
must fairly respond to the substance of allegation. 3. General and
Specific denials. 4. Good faith denying part (below) 5. Lacking
knowledgeauto denial if no knowledge. 6if nothing written auto
denial.
Answer 10 10—(A) Name of parties. (B) Paragraphs, Separate Statements. (C)
Adoption by reference; Exhibits. (Needs to line up when
responding)
Counterclaim 13 Compulsory counterclaims—must be asserted if available at the time of Stradford v. Zurich Insurance
filing answer or ability to assert the claim is lost forever.
- The claim here arises out of the same transaction or occurrence
as the Plaintiff’s claim meaning that determining the merits of
 the counterclaim and Plaintiff’s claim will make you consider the
same facts.
- Plaintiff can raise the fact that you failed to assert it as Plaintiff’s
defense to your counterclaim.

Permissive—Can submit the claim at a later time outside answer.

Unrelated claim to the claim at hand but is still between the same parties.

Stradford v. Zurich Insurance

- Insurance company’s counterclaim for fraud arise from the same
claim as Stratford’s breach of K claim—you have to look at the
same facts.
- If, however the insurance company wanted to file a lawsuit later
against Stratford for fraud, that lawsuit would be dismissed
because the insurance company at the time of Stratford’s lawsuit
could have counterclaimed the fraud issue.
Affirmative Defenses 8(c) List of affirmative defenses including: contributory Negligence,
duress, estoppel, fraud, payment, waiver, statute of frauds, statute of
limitations, assumption of risk, etc.
Amended Pleadings 15 Zielinski—D must explicitly state which allegations he/she is Zielinski v. Philadelphia Piers
denying as to notify P which allegations are in contention. (this case
refers to D’s failure to satisfy 8(b)(4)- “a party that intends in good
faith to deny only part of an allegation must admit the part that is
true and deny the rest.”)

15(a) Amendments Before Trial: (1) A party may amend its

pleadings once within (A) 21days after serving it. (B) 21 days after
receiving an answer or rule 21 motion (which ever is earlier).
(3) One has remaining time to respond to original motion or 14 days
after service of amended pleading to respond.
(b) Court may allow amendments whenever is necessary for justice.
(c) Relation Back: may relate the claim being added to the of
Test for Relation original filing date to get past SOL.
Back. (A) if the SOL law allows for relation back.
(B) Claim or defense that arose out of conduct, transaction, or
occurrence set out in original complaint.
(C) Amendment changes the party or the naming of the party
against whom a claim is asserted, it arises under same
 circumstances, and within 90 day period since original claim was
filed and party
(i) Received such notice of the action that it would not be prejudiced
by defending on merits (ii) known or should have known suit would
be brought but for mistake of concerning identity of proper party.
DISCOVERY
26 26(a) Required Disclosures Each party must lay some card on the
(Rule 16: table. Must lay out evidence they will use to support their claims.
Scheduling Documents (and locations), damage calculation, witnesses. Do not
Conference). need to show evidence you will use to impeach witnesses.
(b) Relevance to claims or defenses. Determination of the act less
Types of Evidence: probable or more probative than without eh evidence. Non-
-Interrogatories Privileged: Attorney client privilege,
-Document Work Product immunity: Attorney’s work/ thoughts on case.
prediction requests (e) Supplement the disclosures as new evidence comes to light you
-Deposition will use.
-Mandatory (f) Conference: Parties must meet to determine plan in Rule 16
Disclosure meeting. Then meet in 26(F) conference that court broad discursion
to alter the plan from the scheduling conference. Conference
determines: SJ, Date of Trial, Status Conference, Approves
discovery plan. At or within 14 days of rule 26(F) conference
after parties must trade mandatory disclosures.
37 (g) Unnecessary Requests, false statements, failure to make
disclosures. (Courts have hard time stopping this: Twickball helps).
37: Undisclosed Information must be remitted from trial
SUMMARY
JUDGMENT
Movant’s Burden 56 Adickes—The moving party must produce affirmative evidence that Adickes v. S.H. Kress & Co.
when taken as true negates or fundamentally contradicts a
contention on which the nonmovant’s case turns, thus foreclosing Celotex v. Catrett
the possibility that the nonmovant could prevail at trial. It is only
after the moving party has met this burden does the nonmoving
party bear the burden of responding.
Celotex— the nonmoving party must make a sufficient showing on
an essential element of her case with respect to which she has the
burden of proof
 56(a)—SJ should be granted if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. (This provision is often interpreted to
mean that SJ is appropriate if, given the evidence presented, no
reasonable jury could find for the nonmoving party. Likewise, if
there is a genuine dispute over a material fact, then SJ is improper
and the case must go to trial.)

56(b). Timing—Unless a different time is set by local rule or the

court orders otherwise, a party may file a SJ motion before 30 days
after the close of all discovery. (Since 56(b) does not state when all
discovery is closed, date is selected by the judge at the Scheduling
Conference.)

56(c)(1)(A). Supporting factual positions— Either party may cite to

particular parts of materials in the record including depositions
(“witness testimony”), verified copies of documents,
electronically stored info, affidavits or declarations (“sworn
statements”), stipulations, admissions in the pleadings,
interrogatory answers.
(B) Materials cited don’t est. the absence or presence of a genuine
dispute, or that an adverse party can’t produce admissible evidence
to support the fact.

56(c)(2). Admissibility—Material cited to support or dispute a fact

must be presented in a form that would be admissible in evidence at
trial.

56(c)(4) Admissibility of Affidavits/Declarations— For testimonial

evidence to be admissible, the witness must be willing to testify
under oath, witness must testify on matters that he/she has first-
hand knowledge, and testimony can’t be hearsay— (ex. “I didn’t
see Moller but I heard from White that Moller was w/ Scarlet in the
library with a gun.”)
Nonmovant’s Burden Rule of Thumb: Tolan— if there is directly conflicting evidence, i.e. witness Tolan v. Cotton
1. Directly testimony, then SJ should be denied + case should go to the jury at
contradicts the trial. Bias v. Advantage
movant’s evidence International, Inc.
2. Produce concrete Bias—When movant has met his burden (using the Adickes
impeachment standard), then nonmovant must come forward with evidence that
evidence either 1. Directly contradicts the movant’s evidence (i.e. other
3. Strength of teammates who testified that Bias never did drugs at social events)
inferences of OR 2. Produce concrete impeachment evidence—material in the
uncontested discovery record that raises doubts about the witnesses’
circumstantial credibility—i.e. witness gives inconsistent/contradicting
evidence. depositional testimonies, testimonies revealed that witness despised
P. 3. Strength of inferences of uncontested circumstantial
evidence. For complex issues (celotex, baby bells).