6.3 Motions Practice
To a great extent, federal litigation practice is a motions practice. Legal aid advocates often challenge agency regulations or practices on constitutional or statutory grounds or both. Facts are often not in dispute and plaintiffs seek judgment as a matter of law. In such cases, neither discovery nor settlement features prominently in the litigation strategy. Rather, such cases are resolved through motions to dismiss or for summary judgment.
III.A. Procedure on Motions
A motion is a request for a court order. Federal Rule of Civil Procedure 7(b)(1) requires that all motions, except those made at trial, be made in writing and state with particularity the grounds supporting the motion and the relief or order sought. As discussed below, other rules set out specific requirements for particular kinds of motions. Typically, the motion is accompanied by a memorandum of law and a proposed order. When appropriate, you may establish facts in support of a motion by appending a declaration or an affidavit, which, in turn, may authenticate or explain attached documents or both. All motions are to be signed in accordance with Rule 11./245/
Local rules of court typically provide detailed requirements regarding the form, content, length, and timing of motions, memoranda, and proposed orders./246/ Motions are generally quite brief and simply state the nature of the motion and invite the court to review the accompanying memorandum./247/ Local rules frequently require motions to certify that the movant consulted unsuccessfully with opposing counsel to resolve the matter at issue. Clerk’s offices refuse to permit filing of such motions without a required certification. Review your local rules with care and comply with all such certification requirements. Local rules frequently also identify categories of information, such as social security numbers, names of children, dates of birth and identifiable financial data, which must not be filed electronically with the court. Ordinarily, such information must be redacted from public filings and, when necessary, filed under seal with the court. Before filing a document with the court, review it carefully for confidential personal information and consult the local rules and experienced attorneys in your office regarding filing requirements.
Motions practice may also be governed by standing orders of the court. Standing orders may be issued by the particular judge hearing the case, or the court may issue specific scheduling orders pursuant to Rule 16(b). Some courts use case management tracking systems based on the expected complexity of the case and direct cases into alternative dispute resolution procedures. If you are new to the district in which you are practicing, consult with senior attorneys in your office for advice on the sources of local written litigation procedure as well as the unwritten local customs and practices that judges and opposing counsel expect you to follow.
The amount of factual detail and legal support necessary for a memorandum of law depends on the nature of the motion involved, the anticipated position of the opposing party, and the expectations of the court. Most memoranda include a brief introduction to familiarize the court with the case and the issues presented in the motion and follow with sections containing the pertinent facts, statutory framework, legal argument, and the specific relief requested in the motion. The content should be concise, simple, and persuasive without being argumentative or inflammatory.
Unless your local practice provides otherwise, a motion should be accompanied by a proposed order granting the relief your client requests. It should be cast in the present tense, so that the judge may execute the order in the presence of counsel at the time of presentation. A carefully considered and drafted proposed order may well be signed by a busy federal judge. If you are seeking several forms of relief, set forth each request in a separately numbered paragraph. Do not assume that the judge will simply ignore your proposed order and craft her own. A thoughtfully prepared proposed order is itself an advocacy piece and may create a framework for oral argument and the judge’s consideration of your motion.
Although there are differences of opinion about the importance of oral argument, the better practice is to request oral argument on any motion critical to your case. If your motion is complicated or if opposing counsel has made strong or appealing arguments, oral argument may be useful. Similarly, if the judge assigned to your case is unfamiliar with or unsympathetic to the issues of legal aid clients, you may want an opportunity to answer any questions that the court may have or to persuade the court of the basis of the claims. If you have been constrained by the court’s page limits on briefs, oral argument is an opportunity to elaborate on issues of particular interest to the judge.
Check your local rules or consult with those knowledgeable about unwritten practices to see what steps are necessary to request oral argument on a motion. In some districts, oral argument must be specifically requested; in others, it will be granted only upon a “proper showing” to the presiding judge. In many jurisdictions, oral argument is uncommon. If the assigned judge allows oral argument, find out how that judge conducts motions hearings. Sit in the courtroom for a few hours to observe; talk to other attorneys who have appeared before the judge. Find out whether the judge limits the time for argument and whether there is opportunity for rebuttal. The more you can learn about how a hearing might proceed, the more prepared and effective you can be.
III.B. Motions Addressed to the Pleadings and Parties
In many cases, a defendant’s first response to a complaint is to file a motion to dismiss pursuant to Rule 12(b)./248/ When such a motion is considered by the court, the well-pleaded allegations of the complaint are taken as true and all reasonable inferences are drawn in favor of the plaintiff./249/ Nonetheless, your complaint must anticipate possible grounds for a motion to dismiss and, to the extent possible, allege facts that preclude dismissal.
The defendant’s Rule 12(b)(6) motion—the Rule 12(b) motion you are most likely to encounter— will generally argue either that the factual allegations made in the complaint, even if true, do not set forth a cognizable legal claim, or that the complaint is factually insufficient in that, for example, it fails to allege facts supporting each element of the legal claim. The first sort of argument raises questions of law for briefing, many or all of which you would have considered pre-filing and discussed in your pre-filing litigation memorandum. The second sort of argument will require you to consider whether to oppose the motion on the ground that the complaint satisfies notice pleading standards,/250/ or whether to move to supplement or amend the complaint to add more factual allegations consistent with Rule 11./251/
Rule 15(a) allows a plaintiff to amend the complaint without filing a motion once as a matter of right before the defendant files a responsive pleading. Because a motion to dismiss is not a responsive pleading, filing one does not terminate the right to amend without leave of court./252/ Once the defendant answers the complaint, leave of court or written consent of the adverse party is necessary. Leave to amend should be freely given; outright refusal to grant leave to amend without justification is an abuse of discretion./253/ Typically, the motion for leave to file an amended complaint attaches the amended complaint, which is deemed filed when the motion is granted.
Legal aid advocates should have a working knowledge of Federal Rule of Civil Procedure 19, which deals with the compulsory joinder of parties. Rule 19(a) establishes the rule for determining whether a party is “necessary” and who must therefore be joined if possible. Joinder may, however, not be feasible if the person is not subject to service of process, if joinder deprives the court of subject-matter jurisdiction, and if the person properly objects to venue./254/ In such cases, Rule 19(b) requires the court to determine whether the action should proceed without the necessary party or whether the party is indispensable, and, therefore, the case must be dismissed./255/
In class actions, the complaint should contain allegations concerning the class drafted in light of Rule 23. It should allege facts to support the requirements of numerosity, commonality, typicality, and representativeness. When practical, a motion for class certification can and should be filed with the complaint. Other cases may require discovery to establish the factual basis for class certification. A motion for class certification and accompanying memorandum must contain the evidence and argument necessary to demonstrate that the prerequisites of Rule 23(a) are met and that the action is maintainable under one or more of the forms of class actions listed in Rule 23(b). Again, be sure to consult your local rules, because many districts have specific requirements on the form of class action complaints and a limited time, often sixty or ninety days, after filing the complaint within which the motion for class certification must be filed./256/
In class actions in which you seek a temporary restraining order (TRO) or preliminary injunction for the named plaintiff only, deferring the motion for class certification may be appropriate. However, if you seek a TRO or preliminary injunction on behalf of the class, you should move immediately for conditional class certification under Rule 23(c). The U.S. Supreme Court has suggested in dicta and federal circuit courts have held that a district court may not award class-wide preliminary relief before class certification./257/ In a few cases, the courts have recognized an implied class certification, but reliance on this doctrine would be unwise./258/ You can seek to amend a conditional class certification order later if necessary.
Legal aid attorneys most often move to substitute parties under Rule 25 when a client dies or becomes incompetent. The motion must be made within ninety days after the death “is suggested upon the record by service of a statement of the fact of the death.”/259/ Otherwise, the action is dismissed as to the deceased party. When a public officer is a party to a pending action and dies, resigns, or ceases to hold office, the successor is automatically substituted as a party. A suggestion of substitution may be filed by either party.
III.C. Preliminary Relief
Federal Rule of Civil Procedure 65 governs motions for TROs and preliminary injunctions. Because complex and varying circumstances often arise, trial courts are given broad discretion over granting or denying preliminary relief. Such orders accordingly are reviewed for abuse of discretion./260/ The standards for both TROs and preliminary injunctions are formulated by case law rather than by rule or statute; the standards are sometimes formulated differently in different circuits. Examine recent precedent in the circuit in which you practice for the governing standard. The majority of courts consider four factors when deciding whether to grant preliminary relief:/261/
- the substantial likelihood or reasonable probability of success on the merits,/262/
- whether there will be irreparable injury to the plaintiff(s) if preliminary relief is denied,/263/
- whether there will be irreparable injury to the defendant(s) or the overall balance of hardships on each side,/264/ and
- whether an injunction would serve the public interest./265/
Courts generally aim to preserve the status quo or the “last peaceable uncontested status” existing between the parties./266/
Occasional cases suggest that when a statute authorizes injunctive relief, no showing of irreparable injury is necessary to obtain a preliminary injunction./267/ However, the prevailing view is that a plaintiff must establish the threat of irreparable injury even when seeking statutorily authorized injunctive relief./268/
Under Rule 65(b), the court may grant a TRO ex parte, without notice to the opposing party only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting his claim that notice should not be required./269/
A TRO expires at any time that the court fixes, not to exceed ten days./270/ However, the court may extend the order for another period of ten or fewer days for good cause shown or for a longer period if the adverse party consents. After an ex parte TRO is granted, the motion for a preliminary injunction is set for hearing at the earliest possible time and takes precedence over all other matters except older matters of the same character. On two days’ notice to the party that obtained the ex parte TRO, or shorter notice if the court so prescribes, the adverse party may move for modification or dissolution of the TRO. Rule 65(b) also sets out specific actions that must be taken or findings that must be entered into the record.
Rule 65(c) requires an applicant for a TRO or preliminary injunction to post security for the issuance of preliminary relief in the event that the court later finds that the opposing party was wrongfully enjoined. Because this is likely to be a problem for legal aid clients, you must seek a waiver of this requirement and document your client’s inability to post security. The court may dispense with security when the applicant does not have the resources to post a bond./271/ Alternatively, the court may require modest or nominal security./272/
The federal rules do not favor ex parte TROs, and you should avoid them whenever possible. Courts do not favor being rushed into decisions or having to decide anything without hearing from your opponent. Usually, while preparing the complaint or motion for a TRO, you will have sufficient time to notify opposing parties or counsel, at least orally.
If the client needs emergency relief, try first to negotiate a settlement with the opposing party. The court will want to know that you have attempted to resolve matters without taking valuable court time on an emergency basis. During negotiations, you may want to give to opposing counsel a draft of your TRO memorandum or notice of the statutory, regulatory, or case authority upon which you are relying. As a general proposition, the more candid you are in attempts to resolve matters without court involvement, the more reasonable you will appear to the court, and the more likely the court will be to grant at least some of the relief you request. Therefore, no matter how hurried you are, keep a record of all contacts with the opposing party or counsel and confirm them in a letter at the earliest possible time.
If a temporary settlement is not feasible, or is too time-consuming, call the court clerk’s office or district judge’s chambers, depending on who does scheduling in your district, and request a hearing time. As soon as you schedule a hearing, notify opposing counsel or parties by phone, followed by a confirming letter. Review all of your documents at this point to make sure they are in order, and, in particular, check your proposed order to see that it contains the detail required by Rule 65(d).
Although TRO hearings are often held in chambers and without evidence, be prepared to present witnesses to prove your need for a TRO. Whether or not you are in chambers, presentation of the facts is crucial. Of the elements for a TRO, proof of imminent irreparable injury is the most important. In litigation over public benefits, the client’s loss of a social welfare benefit can be irreparable injury./273/ At a hearing on a motion for preliminary injunction, you should also be prepared to present live testimony, although your motion papers will present the relevant facts through declarations. The witnesses should be present even if the practice of the court is not to take such testimony. Many judges conduct a “mini-trial” on a preliminary injunction. Therefore, be prepared to present a compelling and sympathetic case that the client has been or will be imminently and irreparably harmed by the defendant’s unlawful conduct if preliminary relief is not granted, and will likely prevail on the merits.
Plaintiff must show that preliminary relief will not harm the defendant or that such harm is outweighed by the harm to the plaintiff from denying preliminary relief. In some cases, the plaintiff should be prepared to subpoena and examine the defendant. Although presenting a case only through the client and favorable witnesses is better, having the welfare administrator, housing bureaucrat, or correctional worker before the court not only increases the likelihood that the court will hear testimony, but also ensures that the court can, in fact, enter preliminary relief in the presence of the opposing party.
Rule 65(a)(2) allows for the consolidation of the preliminary injunction hearing with the trial on the merits. In some cases this may be to your client’s advantage, particularly when discovery is not essential.
A memorandum in support of a motion for preliminary injunction, proposed order, sample declaration and opinion in the Lightfoot v. District of Columbia case are provided as Documents 2-5 in the Documentary Supplement to this MANUAL.
III.D. Summary Judgment
Summary judgment is the procedural device intended to dispose of factually meritless or legally unpersuasive claims and defenses before trial. Federal Rule of Civil Procedure 56 authorizes summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thus, a motion for summary judgment pierces the pleadings to consider the facts of the case. In the last twenty years, summary judgment practice has played an increasingly prominent role in the resolution of federal litigation, and federal trial practice has been in relative decline./274/
Either party may move for summary judgment and may do so with or without supporting affidavits./275/ If used, affidavits must be based on “personal knowledge” and “set forth such facts as would be admissible in evidence.”/276/ Unless the objection is waived, hearsay, for example, may not support a motion for summary judgment. The movant may also support its motion for summary judgment with documents, answers to interrogatories, and deposition transcripts obtained in discovery. Local federal court rules will specify the procedures for filing a motion for summary judgment. Often the local rules will require a party to file a statement of material facts not in dispute with the motion. The adequacy of these statements and opposing statements has become an increasing focus of summary judgment disputes. Attention to these rules is essential to avoid prejudice to your clients./277/
If you are relying on the affidavit (or deposition) of an expert witness to oppose or support a motion for summary judgment, keep in mind the rules generally applicable to expert testimony. The affidavit should not just offer conclusory comments; rather, it should set forth the expert’s qualifications as well as the factual basis, reasoning, and methodology underlying the expert’s opinion./278/
The moving party always bears the burden under Rule 56 to establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. An issue of material fact is one “that might affect the outcome of the suit under the governing law.”/279/ A genuine dispute is one that a reasonable jury can resolve against the moving party./280/ The judge’s role is not to weigh the evidence, but instead to determine whether there is a relevant and triable factual issue. Nonetheless, some evaluation of the evidence is necessary to determine whether a jury can reasonably find in favor of the nonmoving party. That evaluation incorporates the standard of proof at trial, whether it is preponderance of the evidence or clear and convincing evidence./281/
Moreover, in Celotex Corporation v. Catrett the Court tied the nature of the movant’s burden to the allocation of the burden of production in the underlying litigation./282/ Celotex was a wrongful-death case against various asbestos manufacturers and distributors. During discovery, Celotex served interrogatories asking plaintiff to identify any witnesses who could testify to the decedent’s exposure to Celotex products. When plaintiff failed to identify any witnesses, Celotex moved for summary judgment on the ground that plaintiff lacked evidence proving that exposure to Celotex products caused the disease. Plaintiff opposed the motion on the ground that Rule 56 required the defendant to establish the absence of a genuine issue of material fact by filing affidavits specifically negating her claim that the decedent was exposed to Celotex products.
The Court held that the defendant was entitled to summary judgment even though it did not file any affidavit to negate the claim of causation./283/ The Court reasoned that because the plaintiff would have borne the initial burden of production on the issue of causation, had the case proceeded to trial, the defendant would have been entitled to judgment as a matter of law unless the plaintiff produced evidence showing that her husband had been exposed to Celotex products./284/ Summary judgment was proper even though Celotex filed no affidavits because the plaintiffs’ lack of evidence on an issue on which she bore the burden of production necessarily made every other issue nonmaterial./285/
The principal holding of Celotex is clear: Rule 56 requires the entry of summary judgment (after an adequate time for discovery) against a nonmoving party on a claim or defense on which it bears the underlying burden of production whenever the moving party shows that the nonmoving party lacks sufficient evidence to establish one or more elements of that claim or defense. The court must resolve all ambiguities and draw all permissible factual inferences against the movant, and issues of credibility should not generally be resolved by summary judgment. When, however, as in Celotex, a plaintiff cannot prove an essential element of a claim, all other factual issues are immaterial; hence, “no genuine issue as to any material fact” can then exist./286/
Celotex makes clear that the party moving for summary judgment can easily satisfy the initial burden of showing the absence of a genuine issue of fact when the nonmoving party bears the burden on the claim or defense at issue. The motion need not be supported by evidence negating the claim. Rather, the moving party can meet the Rule 56 burden without filing negating affidavits if the responses to discovery show that the nonmoving party will not be able to establish an element of the claim or defense.
Celotex does not affect summary judgment practice when the moving party has the burden of production on the underlying claim or defense. When the moving party has the underlying burden, it must produce affidavits and other material that, if offered at trial, would entitle it to judgment as a matter of law. Thus, Celotex principally affects plaintiffs, for plaintiffs ordinarily bear the burden of production on all elements of a claim. However, because defendants bear the burden of production on most affirmative defenses, Celotex may be invoked against an unsupported affirmative defense.
When faced with a motion for summary judgment, the nonmoving party is likely to try to establish a material factual dispute./287/ If discovery is not complete when the motion is filed, the nonmoving party may file a motion under Federal Rule of Civil Procedure 56(f) with an affidavit in which it must explain that it cannot yet oppose the motion because relevant discovery has not been obtained. If discovery is complete, the nonmovant generally needs to produce discovery or affidavits (or both) demonstrating the existence of a genuine issue of material fact that a reasonable finder of fact could decide in the nonmovant’s favor.
The Celotex and Anderson decisions have had a dramatic impact on the use of summary judgment practice to resolve federal court litigation. The message of the cases for plaintiffs is clear: prompt and thorough discovery is crucial. The impact of Celotex and Anderson in cases involving questions of motive, intent, or state of mind is largely fact dependent. On the one hand, courts commonly hold that summary judgment is not appropriate in cases involving an assessment of credibility, demeanor, and state of mind because this function is reserved for the finder of fact./288/ On the other hand, virtually all cases involve some such element and to deny summary judgment reflexively in all such circumstances would undermine the utility of the summary judgment procedure. For the nonmoving party, resolution of this issue often turns on identifying record evidence revealing important questions of credibility on particular and relevant issues. This underscores the need to approach discovery with great care.
Whenever the plaintiff’s claim crucially depends on expert testimony to establish fault or causation, the defendant can combine a Celotex/289/ summary judgment motion with a Daubert/290/ challenge to the admissibility of plaintiff’s expert testimony./291/ If, under Daubert v. Merrill Dow Pharmaceuticals, the trial court concludes that the expert testimony is inadmissible, and that without that expert testimony plaintiff will lack admissible evidence of fault or causation, then Celotex will require the entry of summary judgment./292/ Good practice, therefore, requires the early retention and preparation of an expert in anticipation of a Daubert challenge likely to accompany a summary judgment motion. Although appeals from orders granting summary judgment are subject to plenary review, General Electric Co. v. Joiner held that when the basis for the grant of summary judgment is the exclusion of expert testimony, deferential abuse of discretion review governs the admissibility determination./293/
A memorandum in support of a motion for partial summary judgment, statement of material facts in dispute, and opinion in the Lightfoot v. District of Columbia case are provided as Documents 16-18 in the Documentary Supplement to this MANUAL.
245. Fed. R. Civ. P. 7(b)(3).
246. Local federal court rules can be found on the Internet, using the links at www.uscourts.gov or going to the “Federal Resources” section of www.FindLaw.com.
247. Some local rules, however, require the motion to set forth supporting rules and cases as authority.
248. A Fed. R. Civ. P. 12(b)(6) motion will be treated as a motion for summary judgment under Rule 56 if matters outside the pleading are presented to and not excluded by the court. The advocate should also be familiar with Fed. R. Civ. P. 12(g) and 12(h), which govern when certain defenses may be waived.
249. Albright v. Oliver, 510 U.S. 266 (1994); Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993); Scheuer v. Rhodes, 416 U.S. 232 (1974); Conley v. Gibson, 355 U.S. 41, 47 (1957). See also Swierkiewicz v. Sorema , 534 U.S. 506, 508 n.1 (2002).
250. See Swierkiewicz, 534 U.S. at 506 (complaint need only give fair notice of plaintiff’s claim and ground upon which it rests; detailed factual statement not required); but see Dura Pharms. v. Broudo, 125 S. Ct. 1627, 1634 (2005) (in private securities fraud action, plaintiff must allege “some indication” of loss and causation).
251. A motion to supplement under Fed. R. Civ. P. 15(d) is used to set forth transactions or events that have occurred since the date of the original pleading. It is allowed only by leave of court, and response is required only if the court so orders.
252. James v. Hurson Assoc. v. Glickman, 229 F.3d 277, 283 (D.C. Cir. 2000); Camp v. Gregory, 67 F.3d 1286, 1289 (7th Cir. 1995), cert. denied, 517 U.S. 1244 (1996); Vernell v. U.S. Postal Serv., 819 F.2d 108 (5th Cir. 1987).
253. See Franks v. Ross, 313 F.3d 184 (4th Cir. 2002); YWCA v. Allstate Ins. Co., 214 F.R.D. 1 (D.D.C. 2003); Anthony v. City of N.Y., No. 00 Civ. 4688, U.S. Dist. LEXIS 7189, 2002 WL 731719 (S.D.N.Y. Apr. 25, 2002).
254. Fed. R. Civ. P. 19(a).
255. See Provident Tradesmen’s Bank v. Patterson, 390 U.S. 102 (1968).
256. This Manual’s Chapter 7 discusses class actions.
257. Baxter v. Palmigiano, 425 U.S. 308, 310, n.l (1976); Nat’l Ctr. for Immigrants’ Rights v. Immigration & Naturalization Serv., 743 F.2d 1365, 1371 (9th Cir. 1984).
258. See, e.g., Doe v. Bush, 261 F.3d 1037 (11th Cir. 2001), cert. denied, 534 U.S. 1104 (2002); Navarro-Ayala v. Hernandez-Colon, 951 F.2d 1325, 1334 (1st Cir. 1991), but see Brown v. Philadelphia Hous. Auth., 350 F.3d 338, 346 (3rd Cir. 2003).
259. Fed. R. Civ. P.25; see generally 7C Charles A. Wright et al., Federal Practice and Procedure§ 1951 (2d ed. 1986).
260. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 126 S.Ct. 1211 (2006); Ashcroft v. ACLU, 542 U.S. 656, 664 (2004).
261. See generally 11A Charles A. Wright et al., Federal Practice and Procedure§ 2948 (1995), for a thorough discussion of the relevant case law in the various circuits.
262. The Supreme Court has characterized the first part of the test as requiring, “by a clear showing, a probability of success on the merits.” Pharm. Research & Mfrs. v. Walsh, 538 U.S. 644 (2003), although in Ashcroft, 542 U.S. at 666 , the Court described the test as “likely to prevail on the merits.” Because the “burdens at the preliminary injunction stage track the burdens at trial,” O Centro Espirita, 2006 U.S. LEXIS at *23, a party moving for a preliminary injunction does not have the burden of disproving the defendant’s affirmative defense. The defendant’s failure to discharge that burden renders the movant likely to prevail on the merits. Id. at *22-23.
263. See generally 11A Wright et al., supra note 261, at § 2948.1.
266. See, e.g., Bell Atl. Bus. Sys. Servs. v. Hitachi Data Sys. Corp., 856 F. Supp. 524 (N.D. Cal. 1993).
267. Baker v. Buckeye Cellulose Corp., 856 F.2d 157 (11th Cir. 1988).
268. See, e.g., Taylor v. Fla. State Fair Auth., No. 94-1376-CIV-T-17E, U.S. Dist. LEXIS 17513 (Nov. 15, 1995); White v. Carlucci, 862 F.2d 1209 (5th Cir. 1989).
269. See generally 11A Wright et al., supra note 261, at § 2952.
270. Fed. R. Civ. P. 65(b).
271. Pharm. Soc’y v. N.Y. State Dep’t. of Soc. Servs., 50 F.3d 1168 (2d Cir. 1995).
272. MacDonald v. Chicago Park Dist., 132 F.3d 355 (7th Cir. 1997).
273. Mayer v. Wing, 922 F. Supp. 902 (S.D.N.Y. 1996); McMillian v. McCrimon, 807 F. Supp. 475 (C.D. Ill. 1992). See also 11A Wright et al., supra note 261, at § 2951.
274. See Martin H. Redish, Symposium: The Civil Trial: Adaptation And Alternatives, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 Stan. L. Rev. 1329 (2005).
275. Celotex v. Catrett, 477 U.S. 317, 323 (1986).
276. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The Celotex and Anderson cases were the principal catalysts for the increased importance of summary judgment practice.
277. See, e.g. Gosselin v. Webb, 242 F.3d 412, 414, n.2 (1st Cir. 2001); Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2001).
278. See Section VI of this chapter for a detailed discussion of expert witnesses.
279. Anderson, 477 U.S. at 248.
281. Anderson, 477 U.S. at 248.
282. Celotex, 477 U.S. at 324.
287. See generally 10A Wright et al., supra note 163, at § 2725, n. 16-22.
288. See, e.g., Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
289. Celotex, 477 U.S. at 317.
290. Daubert is discussed extensively in Section VI of this chapter.
291. General Electric Co. v. Joiner, 522 U.S. 136 (1997).
292. See e.g., Thomas v. City of Chattanooga, 398 F.3d 426 (6th Cir. 2004) (summary judgment for city affirmed since expert’s opposing affidavit asserting municipal policy of condoning excessive force was properly disregarded as inadmissible under Daubert for lack of reliable methodology); Burleson v. Texas Dep’t of Criminal Justice, 393 F.3d 577 (5th Cir. 2004) (summary judgment for prison officials affirmed since proposed expert’s testimony that prison welding shop exposure to radioactive thorium caused plaintiff’s cancer inadmissible for lack of reliable methodology); McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004) (summary judgment for defendants responsible for delay in treating inmate’s spinal epidural abscess affirmed since plaintiff’s expert’s proposed testimony that four hour delay caused or worsened paralysis unsupported by reliable methodology); Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809 (7th Cir. 2004) (summary judgment for employer in ADA claim affirmed since expert affidavit attesting that plaintiff could perform essential functions of job with or without reasonable accommodation was speculative and unreliable); Gabbard v. Linn-Benton Hous. Auth., 219 F. Supp.2d 1130 (D. Or. 2002) (summary judgment for defendant in ADA claim based on “multiple chemical sensitivity” syndrome (MCS); expert affidavit attesting to diagnosis unreliable, noting that no federal court has yet found reliable expert testimony purporting to diagnose MCS; existence and etiology not established by reliable methodology).
293. Gen. Elec. Co., 522 U.S. at 142-43 (“ We likewise reject respondent's argument that because the granting of summary judgment in this case was "outcome determinative," it should have been subjected to a more searching standard of review. On a motion for summary judgment, disputed issues of fact are resolved against the moving party-here, petitioners. But the question of admissibility of expert testimony is not such an issue of fact, and is reviewable under the abuse-of-discretion standard.”).
Updated 2006