2.4.2 MOTIONS FORSUMMARYJUDGMENT
The standard of review for a motion for summary judgment is more complicated than the standard for a motion to dismiss. Like a motion to dismiss, a motion for summary judgment may be granted or denied based on issues of fact, issues of law, or both.
The plain language of Federal Rule of Civil Procedure 56(c) indicates that the motion should be granted when the evidence shows that there is “no genuine issue as to any material fact” and that “the moving party is entitled to a judgment as a matter of law.” In 1986, however, the United States Supreme Court decided three summary judgment cases that created some initial controversy regarding the standard of review for a motion for summary judgment.47 These cases include guidelines that many state courts have adopted; the guidelines indicate that a motion for summary judgment requires the nonmoving party to produce substantial evidence on any issue for which that party bears the burden of production at trial.48 Perhaps obviously, the motion for summary judgment is usually filed after discovery has begun, and sometimes after significant discovery has been completed. In the alternative, some attorneys use this type of motion to force the other party to bring forth evidence, moving discovery in a particular direction.Many complaints allege more than one cause of action, and some may be overly optimistic as to the plaintiff’s chances of success on some of these causes of action. Defense counsel may file a motion for summary judgment that forces the plaintiff to produce sufficient evidence to support one or more of the allegations. In other cases, a defendant may file a motion for summary judgment supported by its own evidence to counter one or more of the plaintiff’s causes of action. A defendant may use this tactic in hopes of forcing a plaintiff to reveal that it has no evidence to support certain allegations, leading the court to grant summary judgment to defendant as to those allegations.
If you analogize the adversary nature of the trial to a poker game, defense counsel may use a motion for summary judgment to call for a “showdown,” — in other words, “show me what evidence you have.” In other cases, a motion for summary judgment could be translated as “read ’em and weep” — in other words, “look at the evidence I have; I bet you don’t have enough evidence to match it.” This technique may force the court to find in defendant’s favor or to call an issue into question.
When arguing a motion for summary judgment, be sure to research both how your jurisdiction articulates the standard of review for this type of motion and the relevant burdens of proof for each underlying cause of action.