Genuine Issues of Material Fact Forum

[ConfusedL1]

I'm saying that the disagreement over whether the company "knew" there were people present - the first factor - is probably a legal decision if the dispute is that the nonprofit says "you knew there were people there" and the company says "we knew there were people there but we didn't think it mattered," or essentially, we didn't know [or, more likely in a response, we don't believe] that degree of use was enough use to trigger the anti-pollution rule. That's a different scenario from the company saying "we had no idea there were people there and you can't prove we did," and seems to take it into a legal realm (though this would depend on the actual law of course).

This is completely separate from the issue of whether the company polluted because people were there. Certainly if the company denies knowing there were ever any people on the land, ever, it's going to be harder for the nonprofit to prove they polluted because people were there; it's easier for the nonprofit to say the company used that knowledge to pollute if the company says "we knew they were there but didn't think it was important." But if the company denies every knowing people were there, no SJ because that's a disputed material fact, so you don't worry about the second factor (for SJ purposes). If the company says, we knew they were there, then the parties probably dispute whether that knowledge influenced the company's decision, so still no SJ.

However, if the parties agree on the actual chain of events leading up to the decision - say that the company has disclosed a whole series of e-mails/meetings minutes/affidavits/whatever that outline the actual decision-making process, and the nonprofit agrees that that was in fact how the decision was made - the case could be resolved through SJ to one side or the other, because the judge would determine whether the facts of the how the decision was made are legally sufficient to prove that the decision was made because of the people being there, rather than despite them being there. Chances are good that the nonprofit would probably not agree on the facts of the decision-making process and offer additional evidence to prove their side, which would be a factual dispute for the jury. But if, theoretically, both sides agreed 100% about how the decision was reached, then whether that was because or despite people being present will be legal determination for the judge.

How big does the overlap have to be for it to be a legal and not factual issue? If the record only shows nonprofit saying "that company KNEW land was serious issue for these people. The nonprofit told it so!" but the company doesn't directly contest it on those exact terms and simply says "lol we saw that they only made half-heartd attempts to use the land and those huts sucked, so this just wasn't serious enough to warrant being a factor for us," is there a material issue? Where does the 51% come in, if it was reasonable for the company to think that?Your response above makes it sound like, absent total agreement about how a decision was made, there won't ever be SJ granted.

Sorry I'm so confused about it. New to me.

[seespotrun]

Are you seeking summary judgment for breach of contract?

No=>Denied

[ConfusedL1]

Reasonable =/ 51%

yeah OP you're confusing the summary judgment standard and the burden of proof (ie preponderance of the evidence/more likely than not. I don't know if I'd say 51% on an exam though if my prof didn't say it (mine did, at least informally)).

Again, the genuine dispute w/r/t summary judgment = the evidence is such that a reasonable jury could return a verdict for the nonmoving party (the verdict being that it is more likely than not (or 51% likely (as opposed to, say, in criminal law, beyond any reasonable doubt)).

Sorry I'm so confused. Aren't both of these 51%?

SJM = show there is no genuine issue of any material fact and that entitled to judgment = granted if judge thinks 51% likely evidence available would lead jury to return verdict for nonmoving party?

[zombie mcavoy]

Sorry I'm so confused. Aren't both of these 51%?

SJM = show there is no genuine issue of any material fact and that entitled to judgment = granted if judge thinks 51% likely evidence available would lead jury to return verdict for nonmoving party?

No. All right, let's do this from square one (this is for my own benefit as exam review, too, so could be wrong/prof could emphasizing different things)

Say a plaintiff files a suit that has three elements. The third element is intent. The defendant does not deny the first two elements were met but disputes the third, intent element. Plaintiff now has the burden of proving that it is more likely than not there was intent (ie 51% standard). Discovery goes on for a while. Defendant moves for summary judgment. He can win this by the celotex standard (pointing out there is not enough evidence to allow for a finding for plaintiff on the essential element), and/or he can affirmatively establish that the element was not met by way of his own evidence. Plaintiff responds with why the case should continue/how there is a genuine dispute. Viewing all facts in the light most favorable to the non-moving party (here, the plaintiff), is there any way that a reasonable jury could find that the element was met (by the trial burden of persuasion/ie preponderance of the evidence/51%)? If yes, summary judgment is not granted. If no, case over/appealed to circuit court, where it is reviewed de novo.

[BVest]

Sorry I'm so confused. Aren't both of these 51%?

SJM = show there is no genuine issue of any material fact and that entitled to judgment = granted if judge thinks 51% likely evidence available would lead jury to return verdict for nonmoving party?

No. All right, let's do this from square one (this is for my own benefit as exam review, too, so could be wrong/prof could emphasizing different things)

Say a plaintiff files a suit that has three elements. The third element is intent. The defendant does not deny the first two elements were met but disputes the third, intent element. Plaintiff now has the burden of proving that it is more likely than not there was intent (ie 51% standard). Discovery goes on for a while. Defendant moves for summary judgment. He can win this by the celotex standard (pointing out there is not enough evidence to allow for a finding for plaintiff on the essential element), and/or he can affirmatively establish that the element was not met by way of his own evidence. Plaintiff responds with why the case should continue/how there is a genuine dispute. Viewing all facts in the light most favorable to the non-moving party (here, the plaintiff), is there any way that a reasonable jury could find that the element was proven met (by the trial burden of persuasion/ie preponderance of the evidence/51%)? If yes, summary judgment is not granted. If no, case over/appealed to circuit court, where it is reviewed de novo.

Just ignore the level of the burden for now. Not that what McAvoy was saying was wrong, but given the confused state, you just need to focus on "is there any way that a reasonable jury could find that the element was proven?" Just forget 51%, preponderance, or anything of the sort.

For example, in a car wreck negligence case where Passenger P sues Driver D over injuries sustained when D allegedly ran a red light. Elements of negligence are, of course, duty, breach, causation, and injury. P's injuries are not in dispute, and they were caused by the wreck where D was driving (and thus had a duty to drive reasonably). Only disputed issue is breach. D moves for SJ and produces affidavit from witness saying light was green. P opposes motion and produces affidavit from witness saying that D ran red light. Viewing all of the evidence in the light most favorable to P, a reasonable jury could clearly find for P, therefore no MSJ.

Now take the same scenario, but instead of just a witness, D obtains through discovery a video of the intersection that happened to be shot at the same time and happened to capture the entire accident on tape and shows that the witness was 100% wrong. (The source of the video is unassailable). Now, even though there's a witness affidavit claiming that D ran the red light, the judge will likely find that -- even viewing the evidence in the light most favorable to the plaintiff -- no reasonable jury could find that D ran the light and therefore D has effectively disproved one of the elements necessary and the MSJ will be granted.

When considering an MSJ, first look at who makes the motion and then decide what they're trying to prove:

P brings motion: They must show that a reasonable factfinder would have to determine that all of the elements were proven.

D brings motion: Can show either one of two things
1) Disproof of an element (e.g. as in the above example). Note that this is the defense doing something -- disproving an element -- that they're not actually required to do in court. See Slaven v. City of Salem

2) Show an absence of evidence for an element. See Duplantis v. Shell Offshore

[ConfusedL1]

Sorry I'm so confused. Aren't both of these 51%?

SJM = show there is no genuine issue of any material fact and that entitled to judgment = granted if judge thinks 51% likely evidence available would lead jury to return verdict for nonmoving party?

No. All right, let's do this from square one (this is for my own benefit as exam review, too, so could be wrong/prof could emphasizing different things)

Say a plaintiff files a suit that has three elements. The third element is intent. The defendant does not deny the first two elements were met but disputes the third, intent element. Plaintiff now has the burden of proving that it is more likely than not there was intent (ie 51% standard). Discovery goes on for a while. Defendant moves for summary judgment. He can win this by the celotex standard (pointing out there is not enough evidence to allow for a finding for plaintiff on the essential element), and/or he can affirmatively establish that the element was not met by way of his own evidence. Plaintiff responds with why the case should continue/how there is a genuine dispute. Viewing all facts in the light most favorable to the non-moving party (here, the plaintiff), is there any way that a reasonable jury could find that the element was proven met (by the trial burden of persuasion/ie preponderance of the evidence/51%)? If yes, summary judgment is not granted. If no, case over/appealed to circuit court, where it is reviewed de novo.

Just ignore the level of the burden for now. Not that what McAvoy was saying was wrong, but given the confused state, you just need to focus on "is there any way that a reasonable jury could find that the element was proven?" Just forget 51%, preponderance, or anything of the sort.

For example, in a car wreck negligence case where Passenger P sues Driver D over injuries sustained when D allegedly ran a red light. Elements of negligence are, of course, duty, breach, causation, and injury. P's injuries are not in dispute, and they were caused by the wreck where D was driving (and thus had a duty to drive reasonably). Only disputed issue is breach. D moves for SJ and produces affidavit from witness saying light was green. P opposes motion and produces affidavit from witness saying that D ran red light. Viewing all of the evidence in the light most favorable to P, a reasonable jury could clearly find for P, therefore no MSJ.

Now take the same scenario, but instead of just a witness, D obtains through discovery a video of the intersection that happened to be shot at the same time and happened to capture the entire accident on tape and shows that the witness was 100% wrong. (The source of the video is unassailable). Now, even though there's a witness affidavit claiming that D ran the red light, the judge will likely find that -- even viewing the evidence in the light most favorable to the plaintiff -- no reasonable jury could find that D ran the light and therefore D has effectively disproved one of the elements necessary and the MSJ will be granted.

When considering an MSJ, first look at who makes the motion and then decide what they're trying to prove:

P brings motion: They must show that a reasonable factfinder would have to determine that all of the elements were proven.

D brings motion: Can show either one of two things
1) Disproof of an element (e.g. as in the above example). Note that this is the defense doing something -- disproving an element -- that they're not actually required to do in court. See Slaven v. City of Salem

2) Show an absence of evidence for an element. See Duplantis v. Shell Offshore

Thanks a lot, that's helpful.

I wonder if we could go back to an example with intent though. I feel the hypo you provided kind of side steps the grey issues.

P must show case with 2 factors (1) some fact. debatable but doable (2) intent. Very up in the air. The evidence is basically P's word and some circumstantial stuff, but it's certain D is denying intent like hell by claiming ignorance even while admitting some circumstantial stuff doesn't look good. It isn't clear it would be enough to sway a jury. D claims it isn't. How does a judge decide? I guess my confusion is really at the 51% margin.

Thanks again!

[encore1101]

Thanks a lot, that's helpful.

I wonder if we could go back to an example with intent though. I feel the hypo you provided kind of side steps the grey issues.

P must show case with 2 factors (1) some fact. debatable but doable (2) intent. Very up in the air. The evidence is basically P's word and some circumstantial stuff, but it's certain D is denying intent like hell by claiming ignorance even while admitting some circumstantial stuff doesn't look good. It isn't clear it would be enough to sway a jury. D claims it isn't. How does a judge decide? I guess my confusion is really at the 51% margin.

Thanks again!

It doesn't matter if "some circumstantial stuff doesn't look good." The judge deciding a summary judgment motion is not a factfinder. He doesn't weigh the evidence of the parties. If there's conflicting evidence as to an element of the cause of action, then summary judgment is inappropriate.

The situation you're proposing, where a judge will grant a summary judgment motion "if judge thinks 51% likely evidence available would lead jury to return verdict for nonmoving party" is incorrect. In that situation, the judge is essentially sitting as the trier of fact. But that's not what a judge decides in a motion for summary judgment. A judge decides "IS THIS CASE WORTH SENDING TO A TRIER OF FACT TO DECIDE?" It could be a jury trial, or it could be a bench trial, but a judge with a motion for summary judgment is not weighing/evaluating the facts.

It doesn't matter if the judge thinks one side will probably win. A motion for summary judgment, previously known as a motion for judgment as a matter of law, is basically saying "There is nothing in dispute. All the material facts/elements are agreed upon by the parties. There is no need for a trial, because the uncontested evidence clearly shows that one side is entitled to judgment as a matter of law."

If the judge thinks there's a 51% chance that the jury will decide in favor of one party, that also means there's a 49% chance that the jury will find not in favor of that same party. Thus, motion for summary judgment is inappropriate. In a motion for summary judgment, the judge does not decide who he thinks should win the case and who should lose the case. If there's a chance that a reasonable jury will find for either party, even if its the Pope's word against a convicted murderer's word, then summary judgment is inappropriate.

Look, intent is never easy to prove. It's 95% of the time going to be circumstantial, because people will rarely announce their intent in doing some tortious or criminal act. But, its a legal presumption that people "intend" to do the natural and probable consequence of their actions.

[BVest]

Inferences that can be drawn from the summary judgment evidence are weighs those (alongside the evidence) in the light most favorable to the nonmovant. You say "It isn't clear it would be enough to sway a jury" but the question isn't that. The question for the judge is could it be enough to sway a jury?

Of course, the judge has a lot of discretion (especially when it's based on inferences to be drawn from the evidence rather than just clear evidence), but the appeal is de novo.

[encore1101]

In order to defeat a summary judgment motion, the nonmovant just needs to show a "dispute" exists, not that he'd win the case on the merits, or even that he'll probably win the case on the merits, but only that there is some factual issue that justifies sending the case to the factfinder.

It somewhat seems you're asking what is the standard by which a judge determines whether a dispute exists ("The judge thinks that there might be a factual dispute" versus "the judge thinks there probably is a factual dispute" versus "The judge knows there is a factual dispute"). If that's the case, if the judge isn't convinced that there are no genuine issues of material fact, then theoretically, the moving party has failed his burden to convince the judge that there is no factual dispute, since, as the moving party, he has the burden of showing why he is entitled to judgment as a matter of law.

[zombie mcavoy]

In order to defeat a summary judgment motion, the nonmovant just needs to show a "dispute" exists, not that he'd win the case on the merits, or even that he'll probably win the case on the merits, but only that there is some factual issue that justifies sending the case to the factfinder.

related question I got into a disagreement w/ a classmate about:

suppose plaintiff must prove two essential elements. Defendant disputes both, and moves for sumjudg under celotex standard.

Judge finds there is a genuine dispute as to one of the essential elements, but that the second essential element cannot be established under the celotex standard.

Despite there being one genuine dispute, sumjudg is granted, right?

[Mal Reynolds]

If I moved for SJ over whether you understand SJ, no reasonable jury could find that you understand this concept.

[A. Nony Mouse]

In order to defeat a summary judgment motion, the nonmovant just needs to show a "dispute" exists, not that he'd win the case on the merits, or even that he'll probably win the case on the merits, but only that there is some factual issue that justifies sending the case to the factfinder.

related question I got into a disagreement w/ a classmate about:

suppose plaintiff must prove two essential elements. Defendant disputes both, and moves for sumjudg under celotex standard.

Judge finds there is a genuine dispute as to one of the essential elements, but that the second essential element cannot be established under the celotex standard.

Despite there being one genuine dispute, sumjudg is granted, right?

If both elements are essential, then yes, SJ would be granted.

[encore1101]

In order to defeat a summary judgment motion, the nonmovant just needs to show a "dispute" exists, not that he'd win the case on the merits, or even that he'll probably win the case on the merits, but only that there is some factual issue that justifies sending the case to the factfinder.

related question I got into a disagreement w/ a classmate about:

suppose plaintiff must prove two essential elements. Defendant disputes both, and moves for sumjudg under celotex standard.

Judge finds there is a genuine dispute as to one of the essential elements, but that the second essential element cannot be established under the celotex standard.

Despite there being one genuine dispute, sumjudg is granted, right?

That seems right. If the defendant successfully won summary judgment on an essential element that the plaintiff was otherwise required to prove in order to prevail on his claim, then defendant should get summary judgment on the entire thing.

To prove his case, Plaintiff must show A and B.
Defendant successfully moved for summary judgment on A, but not B.
But since there's no way plaintiff can show both A and B, his claim is dismissed.

[zombie mcavoy]

neat, thanks y'all

[encore1101]

Consider asking your professor. It's why they pay him the big bucks. Its been years since I touched FRCP, but i still remember that Twombly and Iqbal had to do with sufficiency of pleadings, not motion for summary judgment. It may have been just a brain fart in your original post, but they are two easily mixed-up terms, and you should make sure that you're clear what the differences are.

[ConfusedL1]

This is great, thanks all.

So how does this work appealing a SJM that was granted (assuming de novo review)? Are you essentially arguing that the evidence now in the record should have been enough to enable inferences to have been made for the nonmoving party, and there the judgment was in error?

[zombie mcavoy]

This is great, thanks all.

So how does this work appealing a SJM that was granted (assuming de novo review)? Are you essentially arguing that the evidence now in the record should have been enough to enable inferences to have been made for the nonmoving party, and there the judgment was in error?

You're arguing whether the disputed element was properly met as a matter of law. That involves several lines of argument, one of which is certainly raising specific factual inferences.

Also you generally can't appeal the denial of a summary judgment motion, fwiw (I am pretty certain).

[LeDique]

Correct, an appeal of a denial of summary judgment would be an interlocutory appeal, which means it generally cannot be appealed immediately.

An appeal of summary judgment has basically three categories of arguments:
(1) Trial court misapplied summary judgment standards - placed a burden on the wrong party, didn't draw inferences in favor of the non-moving part, etc.
(2) Trial court misapplied the law - ex: the court said the standard for 'intent' is higher than it should be.
(3) Trial court misapplied the facts of this case to the law - there was enough evidence in the record, ex: the court held that our non-profits sworn affidavit was insufficient to show intent, but it is enough

And do remember why summary judgment is de novo review: the judge only made findings of *law* and no findings of fact. Discretion is only afforded on review to findings of fact, but on summary judgment, the trial court judge is making no findings of fact whatsoever.

[BVest]

Also you generally can't appeal the denial of a summary judgment motion, fwiw (I am pretty certain).

Correct, an appeal of a denial of summary judgment would be an interlocutory appeal, which means it generally cannot be appealed immediately.

Correct. Appeal of a denial not a permissible interlocutory appeal (most reasons for interlocutory appeals are covered by 28 USC §1292). As far as an appeal after final judgment, what is the harm you would seek to show by appealing a denial of summary judgment? Additional litigation costs is not an appropriate harm for an appeal. And once you reach final judgment, you'll either have won the case (so maybe the denial was improper, but again what was the harm) or you'll have lost, in which case the denial was clearly proper.

(Like with all law, there are exceptions to the general inability to appeal a denial of summary judgment: e.g. If there were cross-motions for summary judgment and one was granted -- and the other one obviously was denied -- the party that lost on summary judgment can appeal. On appeal they can often seek review not only review of the summary judgment granted against them, but also review of their own cross-motion that was denied.)

[ConfusedL1]

Correct, an appeal of a denial of summary judgment would be an interlocutory appeal, which means it generally cannot be appealed immediately.

An appeal of summary judgment has basically three categories of arguments:
(1) Trial court misapplied summary judgment standards - placed a burden on the wrong party, didn't draw inferences in favor of the non-moving part, etc.
(2) Trial court misapplied the law - ex: the court said the standard for 'intent' is higher than it should be.
(3) Trial court misapplied the facts of this case to the law - there was enough evidence in the record, ex: the court held that our non-profits sworn affidavit was insufficient to show intent, but it is enough

And do remember why summary judgment is de novo review: the judge only made findings of *law* and no findings of fact. Discretion is only afforded on review to findings of fact, but on summary judgment, the trial court judge is making no findings of fact whatsoever.

So, back to intent (I keep returning to this because I think it's one of the hardest things to prove and a good example of why a judge may grant a SJM). How much evidence would be needed to show intent as a matter of law if SJM was granted at the trial level? Is the strategy to just use the facts as they exist in the record to combat the trial judge's decision by comparing them to the elements of what you legally need to show?

It just sounds like you have to say "a reasonable jury could find these elements satisfied, and the trial judge didn't account for that." I'm just not clear on what reasonable may mean, but you're saying that it just has to make some logical sense and not be one of those clear cases like Celotex where the crucial element simply isn't there at all? It's just hard to see how proving intent works if the D can just keep coming back and saying "nope. didn't intend anything." But, that doesn't matter because P's burden is so low assuming they're the nonmoving party and have SOMETHING in the record that could lead to an inference? I know the line is thin, just trying to wrap my head around it.

[LeDique]

That sounds about right to me. I'm not so sure why you're hung up on "intent" as an issue in particular, perhaps it will help you to know that in most cases where intent is at issue, courts have developed "evidentiary paths" to showing intent (employment discrim cases, fraud on the market, etc). It seems to me your issue is less with summary judgment as it exists, but more with how difficult it is to prove intent in general or at trial. A denial "we didn't intend to do it" doesn't mean D gets summary judgment – it'd be evidence of a dispute.

Maybe something that will help is finding a recent appellate case that overturned a grant of summary judgment, bonus points if it deals with intent. You can read that opinion, the appellate briefs, the trial court opinion, and the trial court briefs. This might help you understand how it actually plays out.

[BVest]

The Slaven case hinged on whether the city "knew or should have known" that the man in jail was suicidal, thus creating a duty to monitor. It's not intent, but that's another one of those hard-to-prove issues like intent. I think that grant of summary judgment was upheld though.

[ConfusedL1]

The Slaven case hinged on whether the city "knew or should have known" that the man in jail was suicidal, thus creating a duty to monitor. It's not intent, but that's another one of those hard-to-prove issues like intent. I think that grant of summary judgment was upheld though.

I looked for the appellant brief but couldn't find it. Would be really interesting to see how they framed it.

On a related issue, if you're fighting a MSJ, is what you can use to show genuine fact dependent on the legal test provided?

For example, can you oppose saying both "there is a factual dispute here the judge didn't consider. X says Y knew. Y says she didn't. They're disagreeing." AND also say "btw, the case law says evidence of intent can be shown by timing...there's a timing issue right here that, even though the two parties agree factually that it happened (i.e. don't dispute its occurrence), is evidence supporting intent the trial judge missed"

[AreJay711]

The Slaven case hinged on whether the city "knew or should have known" that the man in jail was suicidal, thus creating a duty to monitor. It's not intent, but that's another one of those hard-to-prove issues like intent. I think that grant of summary judgment was upheld though.

I looked for the appellant brief but couldn't find it. Would be really interesting to see how they framed it.

On a related issue, if you're fighting a MSJ, is what you can use to show genuine fact dependent on the legal test provided?

For example, can you oppose saying both "there is a factual dispute here the judge didn't consider. X says Y knew. Y says she didn't. They're disagreeing." AND also say "btw, the case law says evidence of intent can be shown by timing...there's a timing issue right here that, even though the two parties agree factually that it happened (i.e. don't dispute its occurrence), is evidence supporting intent the trial judge missed"

Yeah, you got it. If it was something in consequential to the case, then its not a material fact.

In your example, you wouldn't need the actual disagreement. In the pleadings it would be clear that the defendant didn't agree on the intent. It would be valid to argue it solely based on the permissible inference that the fact finder could make. Really the question is: "Is there enough here to indicate that there will be something for the jury / fact finder to determine by the end of this thing?"

[LeDique]

The Slaven case hinged on whether the city "knew or should have known" that the man in jail was suicidal, thus creating a duty to monitor. It's not intent, but that's another one of those hard-to-prove issues like intent. I think that grant of summary judgment was upheld though.

I looked for the appellant brief but couldn't find it. Would be really interesting to see how they framed it.

On a related issue, if you're fighting a MSJ, is what you can use to show genuine fact dependent on the legal test provided?

For example, can you oppose saying both "there is a factual dispute here the judge didn't consider. X says Y knew. Y says she didn't. They're disagreeing." AND also say "btw, the case law says evidence of intent can be shown by timing...there's a timing issue right here that, even though the two parties agree factually that it happened (i.e. don't dispute its occurrence), is evidence supporting intent the trial judge missed"

Yes. You're really saying the same thing. We have sufficient evidence on the issue of intent to pass summary judgment. We have it in two ways: (1) We have a material dispute of fact that needs resolved — whether the conversation happened — to determine whether P has sufficient evidence on intent, making it unsuited for SJ and (2) timing creates a strong inference of intent, we have evidence in the record that shows timing. Timing being undisputed is just a bonus.