civ pro 2 final outline (will)

civ pro 2 final outline (will) - Day 5 2-9 Summary...

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Day 5 2-9 Summary Judgments; Pretrial Conferences I. Motion to Dismiss Rule 12(b)(6), (c) a. Rule 12(b)(6)—complaint only (failure to state a claim) *court does not look at the evidence they just look at the complaint -court looks and asks if pl. proves everything would pl. win -point is to weed out cases with no legally cognizable complaints. Eg. if a claim has five elements and you only have four, dismiss w/out prejudice and leave to amend b. Rule 12(c) – complaint + answer c. Under either, if other materials are considered moves to Rule 56 II. Summary Judgments Rule 56 a. Standard 1. must show there is no dispute on a material issue of fact 2. moving party is entitled to judgment as a matter of law b. What is “Summary Judgment”? i. A pretrial disposition, by motion, on the merits in favor of any party, following a consideration of the pleadings and other evidentiary materials ii. Rule 56 (summary judgment) Standard from motion (Rule 56(c) 1. show that there is no genuine issue as to any material fact 2. and that the moving party is entitled to a judgment as a matter of law.” iii. Summary judgment is rarely granted -rarely granted to plaintiffs and torts cases, contracts more often -normally the party w/the burden of proof will rarely get summary judgment, so plaintiff will rarely get it -summary judgment is never used to resolve disputes of fact iv. scope of the motion 1. may move as to a. entire action b. any claim (partial summary judgment) c. any part of any claim (partial summary judgment) (rule 56(a),(b)) v. timing of motion 1. claiming party : “at any time after the expiration of 20 days from the commencement of the action or after service of a motion of for summary judgment by the adverse party” (rule 56(a)) 2. defending party : any time (Rule 56(b)) 3. but see Rule 56(c),(e)-(f) a. practically speaking, motion usually cannot be made until discovery is substantially completed (late in the proceedings) 4. should serve and file motion well in advance of hearing (rule56(c))
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vi. Opposing the motion (Rule 56(e)) 1. “when a motion for summary judgment is made and supported as provided in this rule, the adverse party’s response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial.” 2. pleadings are not evidence 3. to defeat summary judgment: a. you need admissible evidence b. the evidence must be contradictory III. Supporting and opposing affidavits a. What is an affidavit? i. Voluntary , written and sworn statement of facts before a person authorized to administer oaths (such as notary) ii. Includes verified complaints iii. Compare declarations (same as affidavit, but not sworn or notarized (though still made under penalty of perjury) 1. in federal court, affidavit = declarations (see 28 USC §1746) b. Purpose of affidavits/declarations i. Present evidence (testimony, exhibits) not found in discovery (i.e. friendly witnesses)
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This note was uploaded on 09/14/2008 for the course LAW CivPro taught by Professor Baker during the Winter '08 term at Florida Coastal School of Law.

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civ pro 2 final outline (will) - Day 5 2-9 Summary...

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