Summary Judgment

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Gerald Lebovits - One of the best experts on this subject based on the ideXlab platform.

Howard M. Wasserman - One of the best experts on this subject based on the ideXlab platform.

  • Mixed Signals on Summary Judgment
    Michigan state law review, 2014
    Co-Authors: Howard M. Wasserman
    Abstract:

    This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for Summary Judgment. In one case, the Court affirmed Summary Judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of Summary Judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to Summary Judgment, particularly in civil-rights cases involving video evidence.

  • Video Evidence and Summary Judgment: The Procedure of Scott v. Harris
    2008
    Co-Authors: Howard M. Wasserman
    Abstract:

    In Scott v. Harris (2007), the Supreme Court granted Summary Judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting Summary Judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation or subjective analysis. For the majority, there was no need for a fact-finder to review the video or to compare the video with the competing testimony of eyewitnesses, because what the majority saw in the video was true. The reality, however, is that video evidence is not so singularly objective or definitive in its meaning and message; instead, video presents one perspective on events and is subject to the interpretation and close analysis reserved for the jury at trial. This essay critiques the Court's approach in Scott, both the immediate decision and with an eye on the increasing use of video recording of encounters between police and the likelihood that video will be an increasingly common element of civil rights litigation.

Suja A. Thomas - One of the best experts on this subject based on the ideXlab platform.

  • Reforming the Summary Judgment Problem: The Consensus Requirement
    2018
    Co-Authors: Suja A. Thomas
    Abstract:

    If one or more federal trial or appellate court judges disagree on whether Summary Judgment should be ordered, Summary Judgment can still be granted when an appellate majority finds in favor of Summary Judgment. The case will be dismissed, and a jury will not try it. Logically, however, should this occur? At least one judge has stated that a reasonable jury could find for the party against whom Summary Judgment has been ordered. In these situations where judges disagree on whether Summary Judgment should be granted, they often portray the case’s facts in very different ways—what I refer to as “massaging facts.” The massaging of facts, along with the issues of Summary Judgment’s unconstitutionality and the underlying reasonable jury standard’s impossibility, make Summary Judgment legally problematic. At the same time, courts extensively employ Summary Judgment to dismiss many factually intensive cases, including police brutality and sexual harassment cases. Given that Summary Judgment has no prospect of being eliminated any time soon, the question is whether the “Summary Judgment problem” can be reformed to make the procedure more defensible. This Article explains the Summary Judgment problem including the concept of massaging facts. It then analyzes “the consensus requirement”—an effort to make Summary Judgment more justifiable given its continued use today.

  • What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment
    2017
    Co-Authors: Suja A. Thomas
    Abstract:

    Plea bargaining and Summary Judgment have contributed to the disappearance of the jury. This short paper describes the "plea offer," "sentence" and "consensus" requirements -- three seemingly controversial but rational ways to restore the jury in our present system.

  • Summary Judgment and the Reasonable Jury Standard: A Proxy for a Judge's Own View of the Sufficiency of the Evidence?
    2014
    Co-Authors: Suja A. Thomas
    Abstract:

    Under motions for Summary Judgment, directed verdict, and Judgment as a matter of law, judges employ the reasonable jury standard, deciding whether a reasonable jury could find for the non-moving party. This article explores the propriety of the reasonable jury standard, argues the standard has become a proxy for a judge’s own view of the evidence, and proposes renewed study of the standard.

  • Keynote: Before and After the Summary Judgment Trilogy
    2011
    Co-Authors: Suja A. Thomas
    Abstract:

    In this keynote speech for the Seattle University School of Law Colloquium on the 25th Anniversary of the Summary Judgment Trilogy: Reflections on Summary Judgment, Professor Suja Thomas discusses access to courts and juries before and after the Summary Judgment trilogy. Following up on debate in the academic literature on the effect of the trilogy on Summary Judgment, Professor Thomas explores influences on the trilogy and influences of the trilogy outside of Summary Judgment. She first describes Supreme Court decisions on Judgment notwithstanding the verdict, remittitur, and the directed verdict, which helped set the stage for the trilogy. She then explores access after the trilogy. Professor Thomas describes how access to courts and juries continued to decline through the Supreme Court’s decisions on arbitration and the motion to dismiss. Professor Thomas gives all of these procedures some context by showing their effect on one class of factually intensive cases — employment discrimination cases. She concludes by introducing the concept of “the Other Branch” and states that access to courts and juries can possibly increase if the jury is viewed in this manner.

  • The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly
    SSRN Electronic Journal, 2009
    Co-Authors: Suja A. Thomas
    Abstract:

    This Symposium Article argues that the motion to dismiss is the new Summary Judgment motion. In Iqbal v. Ashcroft and Bell Atlantic Corp. v. Twombly, the Supreme Court created a new standard for granting motions to dismiss under Rule 12(b)(6). Under the standard, a court decides whether a claim is plausible. This new plausibility standard is converging with the standard for Summary Judgment under Rule 56. Not coincidentally, the motion to dismiss appears to be having some of the same effects as Summary Judgment, including on the dismissal of employment discrimination claims. Moreover, as a result of the similarities between the motion to dismiss and the Summary Judgment standards, the Supreme Court case of Swierkiewicz v. Sorema N.A., which concerned the standard by which courts dismiss employment discrimination claims under Rule 12(b)(6), effectively may be dead. This Article concludes that the differences between the motion to dismiss and Summary Judgment call into question the propriety of Iqbal and Twombly.

Linda S. Mullenix - One of the best experts on this subject based on the ideXlab platform.

  • the twenty fifth anniversary of the supreme court s Summary Judgment trilogy much ado about very little
    2012
    Co-Authors: Linda S. Mullenix
    Abstract:

    The twenty-fifth anniversary of the Supreme Court’s famous Summary Judgment trilogy in 1986 offers an opportunity to assess the impact of this trilogy on federal practice. This study sets out to answer a few relatively simple questions: are federal courts doing anything more than citing Celotex as the leading Rule 56 precedent, and if so, are they indeed following the analytical burden-shifting framework so carefully and elaborately set out by Justices Rehnquist and Brennan? A sub-textual inquiry was: do federal judges understand Celotex, any more than our largely confused and confounded first year law students? In addition, this study also researched the extent to which the trilogy’s second leg ― Anderson v. Liberty Lobby, Inc. ― has resulted in numerous trial-by-affidavit nightmares suggested by Justice Brennan in his dissent. The results of this study seem to suggest that in a surprising number of Summary Judgment cases, federal courts don’t even cite Celotex. If this were not shocking enough, in the remaining universe of decisions where courts do cite Celotex, some federal judges do not seem to acknowledge, understand, or apply the elaborate Celotex conceptual framework. The data also seem to suggest that in at least many cases, federal judges ― as they did pre-Celotex ― continue to decide Summary Judgment motions on a kind-of gestalt “tennis match” mode of analysis. The various FJC studies of post-trilogy Summary Judgment practice have demonstrated that the disposition rates (that is, favorable grants of Summary Judgment motions) have not increased in statistically significant ways in the aftermath of the trilogy. Along with the FJC studies, this very modest study further suggests that the trilogy’s central Celotex decision likewise has had small impact on the ways in which judges analyze and decide Summary Judgment motions. In addition, the Anderson decision’s core evidentiary holding has been replicated in exactly three other somewhat anomalous contexts, in the past 25 years ― clearly averting any substantial judicial crisis. Surveying these realities, it is difficult not to conclude that the Court’s Summary Judgment trilogy, along with its attendant hype, has been much ado about very little. Against this backdrop, practitioners who must file Summary Judgment motions may take some comfort in realizing that in most instances in federal court, at least, the lawyers need not overly fret over shifting burdens of production, persuasion, and proof, so long as the attorneys proffer something in the record for a judge to consider (except in those outlying federal courts that have chosen to dun attorneys who do not point to the specific evidence). And while some erudite judges on the federal bench may justifiably take pride in wending their way through a recitation and application of the Celotex standards, judges also may take comfort in knowing that they also largely will not be dunned by appellate courts for failure to recite or properly apply Celotex.

  • The 25th Anniversary of the Summary Judgment Trilogy: Much Ado about Very Little
    Loyola University of Chicago Law Journal, 2012
    Co-Authors: Linda S. Mullenix
    Abstract:

    The twenty-fifth anniversary of the Supreme Court’s famous Summary Judgment trilogy1 provides an excellent opportunity to reflect on the legal profession’s ability to overstate, overhype, and overinflate the impact of Supreme Court decisions. This certainly would seem to be true for predictions concerning Summary Judgment practice that were issued in the immediate aftermath of the Court’s 1986 decisions in Celotex, Anderson, and Matsushita. Famously, members of the academy and other legal seers opined that the Supreme Court, in issuing the Summary Judgment trilogy, was telegraphing a message to federal judges to make enhanced usage of Summary Judgment to expedite legal proceedings and to intercept and dismiss factually deficient litigation before trial. The not-so-veiled purpose of the Summary Judgment trilogy, then, was to nudge federal judges out of their normal predisposition against Summary Judgment. Consequently, a number of procedural wags predicted that federal courts would witness a surge of Summary Judgment dismissals in the wake of the trilogy. However, as the Federal Judicial Center’s (“FJC”) numerous empirical studies have shown, the Summary Judgment trilogy has had scant impact on judicial reception to enhanced utilization of Summary Judgment as a means to streamline litigation.2 Simply stated, the trilogy

  • The Twenty-Fifth Anniversary of the Supreme Court’s Summary Judgment Trilogy: Much Ado About Very Little
    SSRN Electronic Journal, 2012
    Co-Authors: Linda S. Mullenix
    Abstract:

    The twenty-fifth anniversary of the Supreme Court’s famous Summary Judgment trilogy in 1986 offers an opportunity to assess the impact of this trilogy on federal practice. This study sets out to answer a few relatively simple questions: are federal courts doing anything more than citing Celotex as the leading Rule 56 precedent, and if so, are they indeed following the analytical burden-shifting framework so carefully and elaborately set out by Justices Rehnquist and Brennan? A sub-textual inquiry was: do federal judges understand Celotex, any more than our largely confused and confounded first year law students? In addition, this study also researched the extent to which the trilogy’s second leg ― Anderson v. Liberty Lobby, Inc. ― has resulted in numerous trial-by-affidavit nightmares suggested by Justice Brennan in his dissent. The results of this study seem to suggest that in a surprising number of Summary Judgment cases, federal courts don’t even cite Celotex. If this were not shocking enough, in the remaining universe of decisions where courts do cite Celotex, some federal judges do not seem to acknowledge, understand, or apply the elaborate Celotex conceptual framework. The data also seem to suggest that in at least many cases, federal judges ― as they did pre-Celotex ― continue to decide Summary Judgment motions on a kind-of gestalt “tennis match” mode of analysis. The various FJC studies of post-trilogy Summary Judgment practice have demonstrated that the disposition rates (that is, favorable grants of Summary Judgment motions) have not increased in statistically significant ways in the aftermath of the trilogy. Along with the FJC studies, this very modest study further suggests that the trilogy’s central Celotex decision likewise has had small impact on the ways in which judges analyze and decide Summary Judgment motions. In addition, the Anderson decision’s core evidentiary holding has been replicated in exactly three other somewhat anomalous contexts, in the past 25 years ― clearly averting any substantial judicial crisis. Surveying these realities, it is difficult not to conclude that the Court’s Summary Judgment trilogy, along with its attendant hype, has been much ado about very little. Against this backdrop, practitioners who must file Summary Judgment motions may take some comfort in realizing that in most instances in federal court, at least, the lawyers need not overly fret over shifting burdens of production, persuasion, and proof, so long as the attorneys proffer something in the record for a judge to consider (except in those outlying federal courts that have chosen to dun attorneys who do not point to the specific evidence). And while some erudite judges on the federal bench may justifiably take pride in wending their way through a recitation and application of the Celotex standards, judges also may take comfort in knowing that they also largely will not be dunned by appellate courts for failure to recite or properly apply Celotex.

  • To Everything There Is a Season: Bringing a Timely Appeal from the Denial of a Summary Judgment Motion
    2010
    Co-Authors: Linda S. Mullenix
    Abstract:

    This article previews the issues and arguments in the Supreme Court’s 2010-11 Term case, Ortiz v. Jordan. The primary issue before the Court is whether a United States Court of Appeals may review a trial court’s denial of Summary Judgment where the losing party did not seek interlocutory review of the Summary Judgment order, then suffers an adverse Judgment at trial, and subsequently fails to raise the Summary Judgment issue in a timely fashion in its routine, post-trial motions?Michelle Ortiz, an inmate at the Ohio Reformatory for Women, sued Jordan and Bright, reformatory employees, for alleged constitutional and civil rights violations. The defendants alleged a qualified immunity defense and moved to dismiss by a Summary Judgment motion. The trial court denied the motion and the defendants did not bring an immediate appeal of that denial. The defendants then lost at trial, but did not raise the prior denial of Summary Judgment in a timely, routine post-trial motion. Under these circumstances, the Sixth Circuit Court of Appeals concluded that the defendants could seek appellate review of the prior Summary Judgment order, and reversed the trial court’s denial of Summary Judgment, thereby vacating Ortiz’s trial Judgment. In Ortiz, the Supreme Court will determine whether a party who is denied Summary Judgment before trial, and who does not seek immediate interlocutory review, may subsequently seek appellate review of the Summary Judgment denial after a jury returns an adverse Judgment against that party. The Courts of Appeal currently are split on this issue, and the Court will have to resolve this split in authority.The Ortiz appeal implicates an important procedural issue that clearly may affect the ultimate outcome of long and protracted litigation. What happened to Ortiz is a good example of the impact of rules on outcomes. Ortiz has endured litigation spanning almost a decade, arising out of her constitutional and statutory claims relating to an alleged prison assault. In this period she has gone through a jury trial that awarded her substantial compensatory and punitive damages against two defendants. However, after nearly eight years of successful litigation, Ortiz had her jury verdict vacated by an appellate court that determined that the trial judge erroneously decided the defendants’ prior Summary Judgment motion on qualified immunity from suit. The defendants, in this same period, undertook the risk of trial and lost, but then finally prevailed on their qualified immunity defense on appeal. Now, however, the defendants’ ultimate victory is imperiled by Ortiz’s appeal to the Supreme Court. Whether the defendants properly followed the rules relating to both interlocutory appeal and challenges to trial procedure, is at the nub of this case.

  • Dropping the Spear: The Case for Enhanced Summary Judgment Prior to Class Certification
    2010
    Co-Authors: Linda S. Mullenix
    Abstract:

    In the swamp of Summary Judgment literature, academics, commentators, treatise-writers, empiricists, and practitioners pay scant attention to the role of Summary Judgment in class action litigation, prior to class certification. This lacuna is perhaps justified by the corresponding scant attention paid by courts in reported decisions, at least to Summary Judgment prior to class certification. This is unfortunate. This brief article makes the case for enhanced judicial scrutiny of Summary Judgment motions prior to the class certification decision. This argument is congruent (and convergent) with the Supreme Court's Summary Judgment trilogy, the Court's twin pleading decisions in Twombly and Iqbal, the Third Circuit's decision in Hydrogen Peroxide, and the suggestions from various quarters that courts ought to evaluate the merits of proposed class actions during the class certification process. Summary Judgment prior to class certification, then, is a logical and desirable extension of these trends. This article argues that Summary Judgment before class certification embodies a sensible timing accommodation between the heightened pleading requirements of Twombly/Iqbal and the heightened class certification requirements of Hydrogen Peroxide. The argument for a Summary Judgment determination prior to class certification is based on the fact that class certification changes the litigation dynamic, being disconnected from the underlying merits of the dispute. The argument for Summary Judgment prior to class certification is based on the simple premise that if an individual plaintiff's case is so fatally defective (factually and legally) even after discovery, then the court ought to end the case and not permit class certification to proceed. The argument for Summary Judgment prior to class certification is based on efficiency and fairness rationales; Summary adjudication before class certification supports the goals of Federal Rule of Civil Procedure 1 to secure the just, speedy, and inexpensive determination of all civil actions. This is especially compelling when confronted with a legally and factually deficient complex litigation. This proposal for pre-certification Summary Judgment adjudication does not violate the so-called Eisen rule. It has nothing to do with the Eisen rule, because the Eisen rule only comes into play at the point at which a judge must evaluate whether to certify a proposed class action. Pre-certification evaluation of a Summary Judgment motion effectively avoids the Eisen rule by forcing a merits determination prior to class certification, in an individual case setting. If an individual plaintiff has a viable claim, pre-certification Summary Judgment adjudication will not undermine the possibility for class litigation. On the contrary, if a plaintiff has a fatally defective case after Summary Judgment discovery, then courts ought not to sanction a plaintiff's advantage achieved through class certification of an aggregation of multiple bad claims. Moreover, if a plaintiff at Summary Judgment drops the spear of class litigation and no one else rises to champion the class, then the litigation ought to be at an end.

David Rindskopf - One of the best experts on this subject based on the ideXlab platform.

  • A Quarter‐Century of Summary Judgment Practice in Six Federal District Courts
    Journal of Empirical Legal Studies, 2007
    Co-Authors: Joe S. Cecil, Rebecca N. Eyre, Dean Miletich, David Rindskopf
    Abstract:

    Summary Judgment in federal courts has been widely regarded as an initially underused procedural device that was revitalized by the 1986 Supreme Court trilogy of Celotex, Anderson, and Matsushita. Some recent commentators believe Summary Judgment activity has expanded to the point that it threatens the right to trial. We examined Summary Judgment practice in six federal district courts during six time periods over 25 years (1975–2000), extracting information on Summary Judgment practice from 15,000 docket sheets in random samples of terminated cases. We found that when we controlled for changes over time in the types of cases being filed, the likelihood that a case contained one or more motions for Summary Judgment increased before the Supreme Court trilogy, from approximately 12 percent in 1975 to 17 percent in 1986, and has remained fairly steady at approximately 19 percent since that time. The increase prior to the 1986 trilogy and the modest changes subsequent to the trilogy would be unexpected by many legal commentators. Although Summary Judgment motions have increased over this 25-year period, this increase reflects, at least in part, increased filings of civil rights cases, which have always experienced a high rate of Summary Judgment motions. Surprisingly, no statistically significant changes over time were found in the outcome of defendants’ or plaintiffs’ Summary Judgment motions, again after controlling for differences across courts and types of cases. These findings call into question the interpretation that the trilogy led to expansive increases in Summary Judgment. Our analysis suggests, instead, that changes in civil rules and federal case-management practices prior to the trilogy may have been more important in bringing about changes in Summary Judgment practice.

  • a quarter century of Summary Judgment practice in six federal district courts
    Journal of Empirical Legal Studies, 2007
    Co-Authors: Joe S. Cecil, Rebecca N. Eyre, Dean Miletich, David Rindskopf
    Abstract:

    Summary Judgment in federal courts has been widely regarded as an initially underused procedural device that was revitalized by the 1986 Supreme Court trilogy of Celotex, Anderson, and Matsushita. Some recent commentators believe Summary Judgment activity has expanded to the point that it threatens the right to trial. We examined Summary Judgment practice in six federal district courts during six time periods over 25 years (1975–2000), extracting information on Summary Judgment practice from 15,000 docket sheets in random samples of terminated cases. We found that when we controlled for changes over time in the types of cases being filed, the likelihood that a case contained one or more motions for Summary Judgment increased before the Supreme Court trilogy, from approximately 12 percent in 1975 to 17 percent in 1986, and has remained fairly steady at approximately 19 percent since that time. The increase prior to the 1986 trilogy and the modest changes subsequent to the trilogy would be unexpected by many legal commentators. Although Summary Judgment motions have increased over this 25-year period, this increase reflects, at least in part, increased filings of civil rights cases, which have always experienced a high rate of Summary Judgment motions. Surprisingly, no statistically significant changes over time were found in the outcome of defendants’ or plaintiffs’ Summary Judgment motions, again after controlling for differences across courts and types of cases. These findings call into question the interpretation that the trilogy led to expansive increases in Summary Judgment. Our analysis suggests, instead, that changes in civil rules and federal case-management practices prior to the trilogy may have been more important in bringing about changes in Summary Judgment practice.

  • Trends in Summary Judgment Practice: 1975-2000
    2007
    Co-Authors: Joe S. Cecil, Rebecca N. Eyre, Dean Miletich, David Rindskopf
    Abstract:

    Summary Judgment in federal courts has been widely regarded as an initially underused procedural device that was revitalized by the 1986 Supreme Court tril-ogy of Celotex , Anderson , and Matsushita . Some commentators believe Summary Judgment activity has recently expanded to the point that it threatens the right to trial. We examined Summary Judgment practice in six federal district courts dur-ing six time periods over twenty-five years (1975–2000), extracting information on Summary Judgment practice from 15,000 docket sheets in random samples of terminated cases. We found that the likelihood of a case containing one or more motions for Summary Judgment increased before the Supreme Court trilogy, from approximately 12% in 1975 to 17% in 1986, and has remained fairly steady at ap-proximately 19% since that time. Although the number of Summary Judgment mo-tions has increased over this twenty-five year period, this increase reflects, at least in part, an increase in filings of civil rights cases that have always experienced a high rate of Summary Judgment motions. Surprisingly, no statistically significant changes over time were found in the outcome of defendants’ or plaintiffs’ sum-mary Judgment motions, after controlling for differences across courts and types of cases. These findings call into question the interpretation that the trilogy led to expansive increases in Summary Judgment. Our analysis suggests, instead, that changes in federal civil rules and case management practices before the trilogy may have been more important in bringing about changes in Summary Judgment practice.

  • A Quarter Century of Summary Judgment Practice in Six Federal District Courts
    SSRN Electronic Journal, 2007
    Co-Authors: Joe S. Cecil, Rebecca N. Eyre, Dean Miletich, David Rindskopf
    Abstract:

    Summary Judgment in federal courts has been widely regarded as an initially underused procedural device that was revitalized by the 1986 Supreme Court trilogy of Celotex, Anderson, and Matsushia. Some recent commentators believe Summary Judgment activity has expanded to the point that it threatens the right to trial. We examined Summary Judgment practice in six federal district courts during six time periods over twenty-five years (1975 - 2000), extracting information on Summary Judgment practice from 15,000 docket sheets in random samples of terminated cases. We found that when we controlled for changes over time in the types of cases being filed, the likelihood that a case contained one or more motions for Summary Judgment increased before the Supreme Court trilogy, from approximately 12% in 1975 to 17% in 1986, and has remained fairly steady at approximately 19% since that time. The increase prior to the 1986 trilogy and the modest changes subsequent to the trilogy would be unexpected by many legal commentators. Although Summary Judgment motions have increased over this twenty-five year period, this increase reflects, at least in part, increased filings of civil rights cases that have always experienced a high rate of Summary Judgment motions. Surprisingly, no statistically significant changes over time were found in the outcome of defendants' or plaintiffs' Summary Judgment motions, again after controlling for differences across courts and types of cases. These findings call into question the interpretation that the trilogy led to expansive increases in Summary Judgment. Our analysis suggests, instead, that changes in civil rules and federal case management practices prior to the trilogy may have been more important in bringing about changes in Summary Judgment practice.

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