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Civil Procedure Quick Sheets

Civil Procedure Quick Sheets - C 1 I V I L P R O C E D U R...

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C I V I L P R O C E D U R E Q u i c k   S h e e t s 1 R ULE 56 S UMMARY J UDGMENT Purpose · Determine if the disputes in pleadings are really disputes · Do both parties have evidence to support their claims? (Look past claims to evidence) Timing · Usually are filed after discovery—evidence has been gathered. · File at any time, even following complaint · Note: if filed early, courts will hold the motion till after discovery Procedure · File Motion (usually by Defendant) · Attach supporting evidence (i.e. pleadings, discovery responses, documents that support motion, affidavits) · Affidavit must be verified and based on personal information SJ can be granted in two different ways ( Celotex ): 1. Present evidence supporting your side (i.e. lack of evidence for an element) OR 2. Can simply show that opposing party has no evidence to support their side or element of issue. Major Cases · Celotex (asbestos case) o Decedent’s family sued manufacturer of asbestos for wrongful death, but they could not prove the exposure of decedent to product (causation element) necessary for liability. o Court granted SJ; App. Ct. reversed; Sup. Ct. reinstated trial court’s granting o Established precedent as to how a SJ can be granted. · Visser (firing of older man) o The claim was based on age discrimination—no evidence was shown that proved that point. o Must show evidence that shows that it was a legal claim © 2006 Stephen Hunt, Jr. Licensed Under the Creative Commons Attribution-Non-Commercial-ShareAlike License http://creativecommons.org/licenses/by-nc-sa/2.5/
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C I V I L P R O C E D U R E Q u i c k   S h e e t s Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof. (c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
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