Summary Judgment– Meeting the

BOP

If P does have to respond (under Celotex), what does

P have to do?

According to RehnquistAccording to White

Our Summary Judgment Problem

PC

WD

StopStop

Stop Stop

What are the facts according to the P’s

complaint?

What are the facts according to the D’s

answer?

On a 12(b)(6) motion, what must the court treat as the facts?

What does D file?With what does he support that motion?

If P had not responded, what

would the court have been required to

assume?

What response did P actually file?

What facts must the court consider to be

“undisputed”?

What factual issues are still in dispute?

Are there “material facts” that are still in

dispute?

How does one decide if a factual

issue is “material”?

Arnstein v. Porter

What is the factual issue on which Porter sought

summary judgment?

What did Porter do to force Arnstein to

respond?

Would that have satisfied Celotex?

Would that have satisfied Adickes?

What evidence is there that Porter copied Arnstein’s songs?

• Comparison of two songs • Does not rule out copying,

but• Does not, by itself meet P’s

BOP on copying, but• Would meet BOP if P could

meet BOP on ___________.access

What evidence is there that Porter had access to Arnstein’s songs?

• Arnstein’s affidavit about Porter’s stooges• Evidence that someone

broke into apartment• No evidence tying Porter to

break in.• 1 Million copies in print.

I never saw or heard Arnstein’s songs. I wrote

(e.g.) “Night and Day” myself.

How can this testimony

meet Arnstein’s

BOP?

Demeanor & the Burden of

Production

Dyer v. MacDougall

Focus on Counts 3 and 4

• What did P allege in Count 3?• D MacDougall said to Almirall• “P’s letter was a blackmailing

letter”

• What did D submit in its MSJ re Count 3?• D’s affidavit, “I never said it.”• Almirall’s affidavit, “D never

said it to me.”

Does this satisfy Celotex?Why doesn’t P just submit his own

affidavit that D did say it?What could P do to prove statement

was really made?Did P violate Rule 11 by filing this

case?

• What did P allege in Count 4?• D Wife said to Hope• “P wrote and mailed a

blackmailing letter”

• What did D submit in its MSJ re Count 4?• W’s affidavit, “I never said it.”• Hope’s affidavit, “W never

said it to me.”

Anything different about this count?Who is Hope?

How can D move for SJ when

Counts 1 and 2 are still out

there?

Complaint

Motion to Dismiss

Answer

Discovery Completed

Trial

Motion for Summary Judgment

What do you do if D files for SJ before you complete your discovery?

D’s Directed Verdict Area

P’s Directed Verdict Area

Jury Decision

Area

How does the burden of persuasion effect the burden of production?

Shifts BOP

Meets BOP

Preponderance

Shifts BOP

Meets BOP

Reasonable Doubt