Summary Judgment Skeleton 1. Summary Judgment (Curtailed Adjudication) requirements: a. Generally- May move for S. J.

until 30 days after end of discovery and response w/n 21 days and reply w/n 14 days. Meant to test evidence for something to have trial about. b. There must not be a genuine issue to any material fact to receive S. J., should be granted if the pleadings, discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. c. Court doesn't weigh evidence or determine credibility of evidence and all evidence is viewed in light most favorable to non-moving party. Inferences are for jury, unless all point ne way. 2. Burden of Production for Moving Party: (if it doesn't bear burden of proof at trial may use either standard) a. Adickes v. Kress- Negate claim with cited evidence a. Moving party requirements: 1. When the other party is supporting its case with circumstantial evidence, the moving party has to come forward with direct evidence that directly contradicts an essential element on which the nonmoving 2. 3. party bears the essential burden of proof. 4. This is a higher burden of proof than at trial, where D would have no burden of proof whatsoever. b. Non-moving party requirements: 1. Nothing until the moving party has met its burden. If the moving party met its burden by showing direct evidence that contradicted the circumstantial inferences of the nonmoving party, the nonmoving party would be required to submit actual admissible affidavits that created a genuine issue of material fact. Requires evidence to be trial admissible. b. Celotex Corp. v. Catrett- Show other party cannot support claim by citing to record a. The moving party who doesnt bear the burden of proof at trial can satisfy its initial burden of production simply by showing there is an absence of evidence that would allow a reasonable jury to find for P: i. R56 now requires that D cite to specific information on record indicating a lack of evidence to support P's claim ii. By contrast if the moving party bears the burden of proof at trial, the moving party must come forward with evidence with their summary judgment motion that shows their evidence, if not rebutted, warrants a finding in their favor. iii. Using impermissible evidence at trial okay if you provide assurance that person will testify at trial 1. One interpretation is you can used impermissible, other is that decision just means obviously you need a trial testimony and not just affidavit iv. Note on Brennan's dissent: MP must show 1. Show evidence negating an essential element of NMP's claim or 2. Show NMP's evidence is insufficient to establish an essential element of claim by an affirmative showing of the absence of evidence in the record. This is a Plurality decision with White's concurrence treated as majority. c. AMENDED RULE 56: clears up open things in Celotex (supports Brennan dissent)

a. Moving party without burden must support statement that P has no evidence to support claim by citing materials on the record 3. Burden of Production on Non-moving Party: a. Matsushida v. Zenithi. Once the moving party has met their burden, the non-moving party must then come forward with affirmative evidence to prove there is a genuine issue of material fact ii. Quality of evidence that must be produced: 1. Must do more than simply show there is some metaphysical doubt as to the material facts. 2. The evidence doesnt have to be trial quality, but does need to be something that would be admissible at trial, although doesnt need to be in a form that would be admissible at trial b. Bias v. Advantagei. Non-moving party has burden of bringing forth evidence to show a true issue of fact, not merely a metaphysical doubt. Response to moving party's motion, when they have met their own burden of proof, must DIRECTLY contradict the allegations in the SJ motion 4. Revisions to Rule 56: a. Rule 56(c)(2) doesn't clearly exclude "Hoff" type letter, but does suggest MP can't file conclusory S. J. motions. b. Hoff letters are unsworn letters from a witness with personal knowledge of controversy that can be converted into trial permissible evidence (affidavit and willing to testify). 5. Possible hypos: a. If filed early in discovery when 's evidence is thin, then 56(d) continuation b/c Celotex requires reasonable time for discovery before allowing motion. b. If moves then it is saying its evidence is so overwhelming a reasonable jury will find for it, satisfies burden by coming forward with overwhelming, uncontradicted evidence.