Summary Judgment
in Louisiana
Judge Rosemary Ledet
B. Scott Andrews
Robert E. Kleinpeter
Donald W. Price
Louisiana Judicial College
2014 Evidence and Procedure
Seminar
February 20, 2014
1
Summary Judgment
An Historical Perspective
2
Rule 56 of FRCP
In 1938, the federal rules created a summary
judgment process:
• applied to “all actions …”
• “a method for promptly disposing of actions
in which there is no genuine issue of
material fact”
3
The Initial Federal Court
Approach
For many decades after 1938:
• Summary judgment was the exception,
not the rule
• Courts were expected to be tougher on
the movants than on the parties
resisting summary judgment
4
The 1960 Code of Civil Procedure
• Included a procedure for summary judgment
• Official comments observed it “will not be
successfully utilized often” but the device
“should go very far in discouraging [frivolous]
demands and defenses.”
• Unavailable in certain family law cases
• No partial summary judgment
5
Louisiana Judicial Response
to Summary Judgment
• “Appropriate to consider federal jurisprudence”
– Kay v. Carter
• Any doubt must be resolved against the motion
• Burden on the mover was “strict”
• Not appropriate for the determination of
subjective or complex facts
6
1986 Rulings of the
United States Supreme Court
Summary judgment was granted:
• In Matsushita, where there could be no
inference of conspiracy
• In Anderson, where the court equated the issue
on a MSJ to that on directed verdict
• In Celotex, burden of proof bearer must
establish the existence of a triable factual issue
on that element
7
The CCP 1996 and 1997 Amendments
• Summary judgment is “favored”
• Burden of production of evidence on party who
bears burden of proof
• Must be ruled on at least 10 days before trial
• Allowed even though it does not dispose of the
case
• Evidence to be scrutinized equally, removes trial
presumption
8
Subsequent Developments I
• Greater use of MSJ
• Expert testimony must be considered if it
would be admissible at trial
• Times for serving attachments and filing
opposition papers are mandatory
• MSJ shall be rendered “only as to those
issues set forth in the motion before the court”
9
Subsequent Developments II
• If the court determines “that a party or nonparty is
not negligent … or did not cause, … the injury or
harm alleged, that party or nonparty may not be
considered in any subsequent allocation of fault.”
[excepting 1005].
• Only evidence admitted for the MSJ shall be
considered by the court
• Trial court must provide reasons for denial of MSJ
• In 2013, all attachments to, or opposing, the MSJ
are deemed admitted into evidence
10
Amendments to Art. 966
Act 36 of 1966
Act 101 of 1983
Act 89 of 1984
Act 71 of 1992
Act 9 of 1996
Act 483 of 1997
Act 771 of 2001
Act 867 of 2003
Act 690 of 2010
Act 257 of 2012
Act 741 of 2012
Act 391 of 2013
11
Current Procedure
12
Preliminary Notes
•
Summary judgment may be rendered only as to
the issues set forth in the Motion, and only
admitted evidence may be considered by the
court.
•
MSJ can be filed by Plaintiff after Defendant has
answered, and by Defendant at any time.
•
Court shall render judgment within a reasonable
time, and at least 10 days before trial.
13
Before the Hearing
Motion has attached Order and states:
(1)
Whether or not the case is set for trial and,
if so, the trial date; and
(2)
That no testimony will be offered at the
hearing.
District Court Rule 9.8
14
Before the Hearing
Motion specifies the particular issue, theory of
recovery, cause of action, or defense for
which summary judgment is requested.
15
Before the Hearing
Supporting Memo contains:
•
•
•
List of essential legal elements necessary
for the mover to win;
List of material facts the mover contends
are not genuinely disputed; and
Reference to the document proving each
undisputed fact, with the pertinent part
designated.
District Court Rule 9.10
16
Before the Hearing
Supporting documents are cited in and
attached to the Motion.
17
Before the Hearing
Motion, Supporting Memo, and Attachments
are furnished to trial judge and served (by
sheriff) on all parties at least 15 calendar
days before the hearing.
District Court Rule 9.9
18
Before the Hearing
Opposing Memo contains:
•
List of material facts the opponent
contends are genuinely disputed; and
•
Reference to the document proving each
undisputed fact, with the pertinent part
designated.
District Court Rule 9.10
19
Before the Hearing
Attachments to the Motion and Attachments to
the filed Opposing Memo will be deemed
admitted for purposes of the MSJ, unless
excluded in response to an objection:
•
•
Raise objection in the opposing/reply memo
OR
Raise objection in a written motion to strike
20
Before the Hearing
Opposing Memo and Attachments are
furnished to trial judge and served (by mail,
delivery, or electronic means) on all parties at
least 8 calendar days before the hearing.
District Court Rule 9.9
21
Before the Hearing
Reply Memo is furnished to trial judge and
served (by mail, delivery, or electronic means)
on all parties by 4:00 p.m. on the day that is
two week days before the hearing.
District Court Rule 9.9
22
At the Hearing
Mover: formally introduce any evidence that
is filed in the suit record but not attached to
the Motion.
23
At the Hearing
Opponent: either file the Opposing Memo
and Attachments before the hearing, or
formally introduce the Attachments into
evidence at the hearing.
24
After the Hearing
If motion is denied and no oral or written
reasons provided, request written reasons
within 10 days of the denial.
25
Summary Judgment Overview
26
Purpose
To secure the just, speedy, and
inexpensive determination of every action,
except those disallowed by Article 969.
27
Standard
Must be granted when:
•
•
No genuine issues of material fact exist and
the mover is entitled to judgment as a
matter of law
OR
Opposing party fails to sufficiently prove the
existence of an element essential to the
claim, action, or defense on which he or
she bears the burden of proof
28
Partial Motion for
Summary Judgment
A court has authority to grant a partial
summary judgment to dispose of “a
particular issue, theory of recovery, cause
of action, or defense.”
29
Burden of Proof
Movant: Produce evidence (i.e.,
affidavits, discovery responses) to prove
essential element of case; or, point out
lack of factual support for an essential
element in opponent’s case for which
opponent will bear the burden of proof at
trial.
Opponent: Produce evidence which
shows he will be able to meet burden of
proof at trial
30
Material Factual Issues
Facts are considered “material” when they:
(1)
(2)
(3)
Potentially ensure or preclude recovery;
Affect the litigant’s ultimate success; or
Determine the outcome of the legal
dispute.
31
Genuine Factual Issues
A “genuine” issue is a “triable” issue if
reasonable persons could disagree.
32
Discovery
A trial court has discretion to issue a
summary judgment or to require further
discovery.
33
Admission of Evidence
A court may consider the following evidence
when deciding a motion for summary judgment:
•
•
•
•
•
Pleadings
Depositions
Answers to Interrogatories
Admissions
Affidavits
34
Pleadings:
General Rule: Allegations contained in a
party’s pleadings are insufficient to defeat a
motion for summary judgment.
35
Depositions:
Deposition testimony not based on personal
knowledge of the person giving the deposition
does not meet the legal requirements and
should not be considered.
36
Affidavits I:
Affidavits containing factual statements must
meet the standard for admissibility at trial.
Admissibility can be challenged by:
(1)
(2)
(3)
Daubert hearing;
Motion to strike; or
Counter affidavits.
37
Affidavits II:
At a hearing, the trial judge may admit an
affidavit into evidence, consider it, and then
decide it does not meet the test of article
967(A).
See Lewis v. Four Corners Volunteer
Fire Dep’t, 2008-0354 (La. App. 1st Cir.
9/26/08), 994 So. 2d 696
38
Documents:
A document that is neither an affidavit nor
sworn to in any way, and/or that is neither
certified or attached to an affidavit, is not of
sufficient evidentiary quality to be given weight
on summary judgment.
La. C.C.P. Art. 967
39
Credibility
• Credibility determinations and the weighing of
conflicting factual evidence has no place in
deciding a motion for summary judgment
• If determination of the motion depends on
subjective facts such as intent, motive,
knowledge, or good faith, a trial court should
rarely, if ever, grant a motion for summary
judgment
40
Inferences
Must be viewed in the light most favorable
to the opposing party
41
Appellate Review
Appellate courts review summary judgments
de novo, using the same criteria that govern
trial court consideration, and must reverse the
granting of a summary judgment if:
•
Genuine issues of material fact exist; and
•
Movant is not entitled to judgment as a
matter of law.
42
Concluding Remarks
43