CIVIL PROCEDURE CLASS 22
Professor Fischer
Columbus School of Law
The Catholic University of America
October 16, 2002
WHAT WILL WE DO TODAY?
Finish our discussion of discovery
sanctions
Start a unit on pre-trial adjudication by
learning about summary judgment.
OTHER SANCTIONS POSSIBLE
WITHOUT VIOLATION OF COURT
ORDER
Rule 37(c) When can court impose
sanctions under this provision, and
what types of sanctions?
Rule 37(d) When can court impose
sanctions under this provision, and
what types of sanctions?
RULE 37(C) (1): AUTOMATIC
DISCLOSURES
Failure to make automatic disclosures under
26(a)
Failure to supplement a prior discovery
response under 26(e)(2)
Punishment is that party will not be permitted
to use evidence at trial OR on motion unless
failure is “harmless”. Additionally, after
providing the opportunity for a hearing, a
court may impose sanctions under
37(b)(2)(A), (B), and (C) as well as payment
of reasonable expenses
RULE 37(c)(2): FAILURE TO
ADMIT
After trial, party can move for reasonable
expenses including attorney fees that were
incurred in proving truth of
matter/genuineness of document
These must be awarded UNLESS
(A) Request objectionable
(B) Admission sought was trivial
(C) Reasonable grounds or good reason for
refusing to admit
RULE 37(d): FAILURE OF PARTY TO ATTEND AT
OWN DEPOSITION OR SERVE ANSWERS TO
INTERROGATORIES/RESPOND TO DOCUMENT
REQUEST
These are sanctions for completely
failing to participate in the discovery
process
They are obtainable on motion
Must informally confer with other
party/person before moving (except for
failing to appear for deposition)
Court can impose whatever sanctions
are “just” including 37(b)(2)(A)-(C) as
well as reasonable expenses including
attorney’s fees
37(g): Failure to participate in
discovery plan
If a party fails to participate in
developing a proposed discovery plan
as required by 26(f), the court may,
after opportunity for a hearing, require
the party failing to participate to pay
expenses of the other party including
reasonable attorney fees caused by the
failure
PRACTICE EXERCISE 14
Discovery planning in Carpenter
See CB 356-358
Initial disclosures
Depositions – party/nonparty
Interrogatories
Document Requests
Physical/Mental Exams
Requests for Admission
Sequence of discovery
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