CIVIL PROCEDURE CLASS 19
Professor Fischer
Columbus School of Law
The Catholic University of America
October 25, 2001

WRAP-UP OF LAST CLASS
We discussed jury selection, including federal procedures for choosing a jury panels, voir dire, peremptory challenges and challenges for cause

WHAT WILL WE DO TODAY?
Finish our discussion of jury selection by considering the dissent in Edmonson v. Leesville
Consider whether other groups are entitled to the Batson protection in civil action, and if so, which
Start a unit on pre-trial adjudication by learning about summary judgment.

Edmonson v. Leesville Concrete Co.,
Inc.: The Dissent
Describe the reasoning of the dissent by
Justice O’Connor, and explain how it differs from the majority’s reasoning
Describe the reasoning of Justice Scalia’s separate dissent and explain how it differs from the majority’s reasoning
Whose reasoning is most persuasive: that of
Kennedy, O’Connor, or Scalia? Why?

Should Other Groups Be Entitled to the Batson Protection?
See J.E.B. v. Alabama (1994) - to what group was the Batson protection extended?
What was the Court’s reasoning in extending the protection in this way?
Do you find it persuasive? Why or why not?
Should Batson be extended to any other groups? If so, which?

CHALLENGING PREEMPTORY
CHALLENGES UNDER BATSON
Opponent of the challenge must make out a prima facie case of racial or gender discrimination
Burden shifts to proponent of challenge to give a race-neutral explanation for the strike
Opponent must then establish that strike was motivated by purposeful discrimination

ARE PREEMPTORY
CHALLENGES FAIR?
Some argue that the preemptory challenge system is inherently constitutionally flawed
Are preemptory challenges necessary to ensure a fair trial? Is there anything else that should be done to ensure that juries are sufficiently racially diverse? If so, what?

SUMMARY JUDGMENT
What order does the moving party seek on a motion for summary judgment?
What is the practical effect of such an order?
What FRCP governs summary judgment?
What is the purpose of including the summary judgment procedure in the FRCP?

ADJUDICATION W/O TRIAL
In some circumstances, there may be no genuine legal dispute between the parties.
In that case, it would be wasteful to proceed with a trial
The purpose of summary judgment is to avoid useless trials

What is the procedure for obtaining summary judgment?

What is the procedure for obtaining summary judgment?
Usually one party makes a motion:
FRCP 7 - generally must be in writing
Sometimes both parties make simultaneous summary judgment motions. In that case, the court must rule on these separately
Court can enter order for summary judgment sua sponte

Rule 56 and Rule 12(b)(6)
How does a dismissal for summary judgment differ from a dismissal under
Rule 12(b)(6)?

Rule 56 and Rule 12(b)(6)
Note: A motion to dismiss under Rule
12(b)(6) for failing to state a claim upon which relief can be granted will be converted into a summary judgment motion under Rule 56 if the court considers matters outside the pleadings in ruling on the motion.

Timing of summary judgment motions
What is the earliest time a plaintiff can move for summary judgment under the federal rules? See FRCP 56(a)
What is the earliest time a defendant can move for summary judgment under the
FRCP? See FRC 56(b)
NOTE - usually summary judgment motions are not made until after discovery. Why not?

Outside evidence
Is outside evidence generally necessary in support of a summary judgment motion? Is it always necessary?
What types of evidence can be presented in support of a summary judgment motion?
How, procedurally, is such evidence presented to the court?

Timing of Motion
When must a summary judgment motion be served?

Service of Motion
Must be at least 10 days before the hearing
Why is this time period required?
See local rules for additional timing requirements
Does the motion have to be signed?
Under what FRCP?

Responding to the motion
How should the non-moving party respond to the motion?

Responding to the motion
How should the non-moving party respond to the motion?
Possibilities:
1. Rule 56(f) affidavit
2. Do nothing
3. Avoid 56(e) entry of summary judgment by responding setting forth specific facts showing genuine dispute of material fact
4. Cross-motion for summary judgment

Oral argument?
Is oral argument always required on a summary judgment motion?

The Standard For Granting
Summary Judgment
What is the standard for granting summary judgment and what is the relevant provision of the FRCP? (VERY
IMPORTANT!)

The Standard For Granting
Summary Judgment
FRCP 56( c)
No genuine issue of material fact AND
The moving party is entitled to judgment as a matter of law
What’s a material fact?
What’s a genuine issue?

Confusion Prior to Celotex
As to burden of proof
As to burden of production
As to burden of persuasion
ON SUMMARY JUDGMENT MOTIONS

Addickes v. S.H. Kress & Co.
What is the historical background to
Addickes?
What are the key facts of Addickes?
What is the procedural history?

Addickes v. S.H. Kress & Co.
Did the Supreme Court uphold or reverse the District Court’s grant of summary judgment?
Why?

Burden on Moving Party Under
What is the burden of a party moving for summary judgment according to the
Supreme Court in Addickes?
Was this an easy burden to satisfy?
What evidence would have satisfied it?

Celotex Corp. v. Catrett
What are the key facts of this decision?
Who had the burden of proving element of causation at trial?

Celotex
Which party or parties moved for summary judgment?
On what ground?
How did the district court rule? What about the Court of Appeals? Why?

Celotex: Appeal to U.S.
Supreme Court
How did the Supreme Court rule? Why?

Celotex: Distinguishing
Addickes
According to Rehnquist, was rightly decided?
Addickes
How should the language from according to Rehnquist?
Addickes quoted at CB p. 488 be construed,

Celotex
Did Celotex increase or reduce the initial burden on the moving party?

Brennan’s Dissent in Celotex
Why does Justice Brennan dissent in this case?
Does Brennan think that Addickes and
Celotex can be reconciled?
Do you agree? Why or why not?

Burden of persuasion for summary judgment motion
Which party has the ultimate burden of persuasion on a summary judgment motion?

Shifting burdens on the parties on a motion for summary judgment
Ask first: which party has the burden of production at trial on essential element of challenged claim?

Initial Burden on the Moving
Party
What is the initial burden on the moving party if that party carries the burden of production of challenged element at trial?
The burden then shifts to the opposing party
What must that opposing party show?

Initial Burden on the Moving
Party
What is the initial burden on the moving party if the non-moving party carries the burden of production on challenged element at trial?
The burden then shifts to the opposing party
What must that opposing party show?

Inferences for Summary
Judgment motions
The court will believe the evidence of the non-moving party as true
All reasonable inferences will be drawn in the non-moving party’s favor

Practice Execise 19B