8 Exercise Eight – Summary Judgment


A.  Federal Rule 56

Since 1938, summary judgment has been governed in federal courts by Fed.R.Civ.P. 56.  The key language of that rule from its beginnings until today is the following: “The judgment sought should be rendered if * * * there is no genuine issue as to any material fact.” Fed. R. Civ. P. 56(c)(2).  The important concepts here are material fact and genuine issue.

While either party can move for summary judgment, it is almost exclusively a defendant’s weapon.  Accordingly, the following discussion assumes defendant is moving for summary judgment.

A material issue of fact is one that would affect the result of the case.  For example, in an auto accident case, the fact of whether plaintiff or defendant had the green light would be material.  When, however, defendant moves for summary judgment on the basis of the statute of limitations, the motion will be granted should the court determine the statute has expired.  Any fact issues in the case–color of the traffic light, speed of the vehicles, amount of damages–are immaterial.  The only issue that matters to the result is whether the statute has expired.

Similarly, a suit for breach of contract presents fact issues of offer, acceptance, consideration, and damages.  None of these issues is material when defendant moves for summary judgment based on res judicata.  Neither would any of the issues be material should the basis for the motion be failure of plaintiff to assert the claim as a compulsory counterclaim in defendant’s earlier suit against plaintiff.

Of course, these situations are uncommon.  Typically, the fact issues in the case will be material.

More common is a summary judgment motion based on the plaintiff’s failure to raise a genuine issue of fact.  A genuine fact issue is one that is not frivolous.  Plaintiff can make many factual allegations in the complaint, but a genuine issue is one that has evidentiary support.  In that sense, summary judgment is the means for defendant to test whether plaintiff has anything to back up those allegations.

Plaintiff must present facts that would be admissible in evidence at the trial.  “A supporting or opposing affidavit must be made on personal knowledge, [and] set out facts that would be admissible in evidence * * *.” Fed. R. Civ. P. 56(e)(1).  The affidavits–or other materials such as depositions or interrogatory answers–must be based on personal, firsthand knowledge, not hearsay or opinion.

For example, plaintiff sues for defamation, alleging defendant called him a business cheat.  Defendant moves for summary judgment and includes the affidavits of three disinterested eyewitnesses all stating that they heard the entire exchange and defendant uttered no such statement.  Plaintiff responds with the affidavit of a person who was not present stating she heard from another person that defendant had uttered the words.  Summary judgment will be granted.  The affidavit of plaintiff’s witness is based on hearsay, not personal knowledge, and will be disregarded.  Without it, plaintiff has no genuine issue of fact preventing summary judgment.

Or plaintiff responds by arguing that the complaint alleges the defamation occurred.  This also is unavailing, as a complaint is not based on personal knowledge.  Summary judgment will be granted as plaintiff has failed to come forward with admissible evidence of the fact to demonstrate a genuine issue.

What if plaintiff puts in his own affidavit–or verifies the complaint–stating that the defendant made the statement?  Despite the evidence of the three disinterested eyewitnesses versus plaintiff’s interested solo statement, summary judgment should not be granted.  The court will not weigh the credibility of the evidence of the two sides.  The summary judgment motion seeks fact issues; it does not seek to decide them.

You can read through Fed.R.Civ.P. 56 now.

B.  Supreme Court Interpretation of Federal Rule 56

The Supreme Court has been called on to interpret Rule 56 on many occasions.  Responding to criticism that lower courts were overly cautious in granting summary judgment motions, the Court decided three cases in 1986 that became known as the summary judgment trilogy.  See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 474 U.S. 574, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). These three opinions interpreted Rule 56 in a new light and made summary judgment easier to obtain.  The most important of the three opinions is the following opinion because of the Court’s discussion of what the nonmoving party must show to demonstrate a genuine issue of fact.

Supreme Court of United States, 1986.
477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d 202.

Justice White delivered the opinion of the Court.

[§ 1]

In New York Times Co. v. Sullivan, 376 U.S. 254, 279–280, 84 S. Ct. 710, 725–726, 11 L.Ed.2d 686 (1964), we held that, in a libel suit brought by a public official, the First Amendment requires the plaintiff to show that in publishing the defamatory statement the defendant acted with actual malice—”with knowledge that it was false or with reckless disregard of whether it was false or not.”  We held further that such actual malice must be shown with “convincing clarity.”  Id., at 285–286, 84 S. Ct., at 728–729.  See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 3008, 41 L.Ed.2d 789 (1974).  These New York Times requirements we have since extended to libel suits brought by public figures as well.  See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L.Ed.2d 1094 (1967).

[§ 2]

This case presents the question whether the clear‑and‑convincing‑evidence requirement must be considered by a court ruling on a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure in a case to which New York Times applies.  The United States Court of Appeals for the District of Columbia Circuit held that that requirement need not be considered at the summary judgment stage.  241 U.S. App. D.C. 246, 746 F.2d 1563 (1984).  We granted certiorari, 471 U.S. 1134, 105 S. Ct. 2672, 86 L.Ed.2d 691 (1985), because that holding was in conflict with decisions of several other Courts of Appeals, which had held that the New York Times requirement of clear and convincing evidence must be considered on a motion for summary judgment.  We now reverse.

[§ 3]

Respondent Liberty Lobby, Inc., is a not‑for‑profit corporation and self‑described “citizens’ lobby.”  Respondent Willis Carto is its founder and treasurer.  In October 1981, The Investigator magazine published two articles:  “The Private World of Willis Carto” and “Yockey:  Profile of an American Hitler.”  These articles were introduced by a third, shorter article entitled “America’s Neo–Nazi Underground:  Did Mein Kampf Spawn Yockey’s Imperium, a Book Revived by Carto’s Liberty Lobby?”  These articles portrayed the respondents as neo‑Nazi, anti‑Semitic, racist, and Fascist.

[§ 4]

Respondents filed this diversity libel action in the United States District Court for the District of Columbia, alleging that some 28 statements and 2 illustrations in the 3 articles were false and derogatory.  Named as defendants in the action were petitioner Jack Anderson, the publisher of The Investigator, petitioner Bill Adkins, president and chief executive officer of the Investigator Publishing Co., and petitioner Investigator Publishing Co. itself.

[§ 5]

Following discovery, petitioners moved for summary judgment pursuant to Rule 56.  In their motion, petitioners asserted that because the respondents are public figures they were required to prove their case under the standards set forth in New York Times.  Petitioners also asserted that summary judgment was proper because actual malice was absent as a matter of law.  In support of this latter assertion, petitioners submitted the affidavit of Charles Bermant, an employee of petitioners and the author of the two longer articles.  In this affidavit, Bermant stated that he had spent a substantial amount of time researching and writing the articles and that his facts were obtained from a wide variety of sources.  He also stated that he had at all times believed and still believed that the facts contained in the articles were truthful and accurate.  Attached to this affidavit was an appendix in which Bermant detailed the sources for each of the statements alleged by the respondents to be libelous.

[§ 6]

Respondents opposed the motion for summary judgment, asserting that there were numerous inaccuracies in the articles and claiming that an issue of actual malice was presented by virtue of the fact that in preparing the articles Bermant had relied on several sources that the respondents asserted were patently unreliable.  Generally, the respondents charged that the petitioners had failed adequately to verify their information before publishing.  The respondents also presented evidence that William McGaw, an editor of The Investigator, had told petitioner Adkins before publication that the articles were “terrible” and “ridiculous.”

* * *

[§ 7]

Our inquiry is whether the Court of Appeals erred in holding that the heightened evidentiary requirements that apply to proof of actual malice in this New York Times case need not be considered for the purposes of a motion for summary judgment.  Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.”  By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;  the requirement is that there be no genuine issue of material fact.

[§ 8]

As to materiality, the substantive law will identify which facts are material.  Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.  Factual disputes that are irrelevant or unnecessary will not be counted.  See generally 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2725, pp. 93–95 (1983).  This materiality inquiry is independent of and separate from the question of the incorporation of the evidentiary standard into the summary judgment determination.  That is, while the materiality determination rests on the substantive law, it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.  Any proof or evidentiary requirements imposed by the substantive law are not germane to this inquiry, since materiality is only a criterion for categorizing factual disputes in their relation to the legal elements of the claim and not a criterion for evaluating the evidentiary underpinnings of those disputes.

[§ 9]

More important for present purposes, summary judgment will not lie if the dispute about a material fact is “genuine,” that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.  In First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L.Ed.2d 569 (1968), we affirmed a grant of summary judgment for an antitrust defendant where the issue was whether there was a genuine factual dispute as to the existence of a conspiracy.  We noted Rule 56(e)’s provision that a party opposing a properly supported motion for summary judgment ” ‘may not rest upon the mere allegations or denials of his pleading, but … must set forth specific facts showing that there is a genuine issue for trial.’ ” We observed further that

“[i]t is true that the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence;  rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”  391 U.S., at 288–289, 88 S. Ct., at 1592.

We went on to hold that, in the face of the defendant’s properly supported motion for summary judgment, the plaintiff could not rest on his allegations of a conspiracy to get to a jury without “any significant probative evidence tending to support the complaint.”  Id., at 290, 88 S. Ct., at 1593.

[§ 10]

Again, in Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L.Ed.2d 142 (1970), the Court emphasized that the availability of summary judgment turned on whether a proper jury question was presented.  There, one of the issues was whether there was a conspiracy between private persons and law enforcement officers.  The District Court granted summary judgment for the defendants, stating that there was no evidence from which reasonably minded jurors might draw an inference of conspiracy.  We reversed, pointing out that the moving parties’ submissions had not foreclosed the possibility of the existence of certain facts from which “it would be open to a jury … to infer from the circumstances” that there had been a meeting of the minds.  Id., at 158–159, 90 S. Ct., at 1608, 1609.

[§ 11]

Our prior decisions may not have uniformly recited the same language in describing genuine factual issues under Rule 56, but it is clear enough from our recent cases that at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.  As Adickes, supra, and Cities Service, supra, indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.  Cities Service, 391 U.S., at 288–289, 88 S. Ct., at 1592.  If the evidence is merely colorable, Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18 L.Ed.2d 577 (1967) (per curiam ), or is not significantly probative, Cities Service, supra, at 290, 88 S. Ct., at 1592, summary judgment may be granted.

[§ 12]

That this is the proper focus of the inquiry is strongly suggested by the Rule itself.  Rule 56(e) provides that, when a properly supported motion for summary judgment is made, the adverse party “must set forth specific facts showing that there is a genuine issue for trial.”  And, as we noted above, Rule 56(c) provides that the trial judge shall then grant summary judgment if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law.  There is no requirement that the trial judge make findings of fact.  The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

[§ 13]

Petitioners suggest, and we agree, that this standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.  Brady v. Southern R. Co., 320 U.S. 476, 479–480, 64 S. Ct. 232, 234, 88 L.Ed. 239 (1943).  If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed.  Wilkerson v. McCarthy, 336 U.S. 53, 62, 69 S. Ct. 413, 417, 93 L.Ed. 497 (1949)….

[§ 14]

The Court has said that summary judgment should be granted where the evidence is such that it “would require a directed verdict for the moving party.”  Sartor v. Arkansas Gas Corp., 321 U.S. 620, 624, 64 S. Ct. 724, 727, 88 L.Ed. 967 (1944).  And we have noted that the “genuine issue” summary judgment standard is “very close” to the “reasonable jury” directed verdict standard:  “The primary difference between the two motions is procedural;  summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted.”  Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 745, n. 11, 103 S. Ct. 2161, 2171, n. 11, 76 L.Ed.2d 277 (1983).  In essence, though, the inquiry under each is the same:  whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one‑sided that one party must prevail as a matter of law.

[§ 15]

Progressing to the specific issue in this case, we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.  If the defendant in a run‑of‑the‑mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair‑minded jury could return a verdict for the plaintiff on the evidence presented.  The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient;  there must be evidence on which the jury could reasonably find for the plaintiff.  The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict—”whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.”  Munson, supra, 14 Wall., at 448.

[§ 16]

… [W]here the First Amendment mandates a “clear and convincing” standard, the trial judge in disposing of a directed verdict motion should consider whether a reasonable factfinder could conclude, for example, that the plaintiff had shown actual malice with convincing clarity.

* * *

[§ 17]

Just as the “convincing clarity” requirement is relevant in ruling on a motion for directed verdict, it is relevant in ruling on a motion for summary judgment.  When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times.  For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence.

[§ 18]

Our holding that the clear‑and‑convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury.  It by no means authorizes trial on affidavits.  Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.  The evidence of the non‑movant is to be believed, and all justifiable inferences are to be drawn in his favor.  Adickes, 398 U.S., at 158–159, 90 S. Ct., at 1608–1609.  Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.  Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S. Ct. 1031, 92 L.Ed. 1347 (1948).

[§ 19]

In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.  This is true at both the directed verdict and summary judgment stages.  Consequently, where the New York Times “clear and convincing” evidence requirement applies, the trial judge’s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant.  Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.

* * *

[§ 20]

Because the Court of Appeals did not apply the correct standard in reviewing the District Court’s grant of summary judgment, we vacate its decision and remand the case for further proceedings consistent with this opinion.

It is so ordered.



The computer-aided exercise, CALI CIV13: Summary Judgment, is based on a case involving a claim for defamation and a counterclaim for battery.  The exercise requires interpretation of the opinion in  Anderson, I.B., supra.  In their memoranda supporting and opposing summary judgment on the claim, and also on the counterclaim, both parties rely heavily on this summary judgment decision by the Supreme Court.  Please study this opinion carefully in preparation for your rulings on the motions made by the parties in the computer-aided exercise.

The elements of defamation can be found in Exercise Three, part III.B.  Please re-read them.  The elements of battery are reproduced here in II.A, infra.  After studying Anderson, the elements of both torts, and the facts scenario in II.B, infra, answer the questions posed in II.C, infra, and then go to the computer to test your answers.

A.  The Law of Battery

The elements of the tort of battery can be found in RESTATEMENT (SECOND) OF TORTS §§ 13, 18 (1965):

§ 13. Battery:  Harmful Contact

An actor is subject to liability to another for battery if

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) a harmful contact with the person of the other directly or indirectly results.

§ 18. Battery:  Offensive Contact

(1) An actor is subject to liability to another for battery if

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) an offensive contact with the person of the other directly or indirectly results.

(2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

B.  The Facts of the Case

You are the federal district judge in the District of Wisdom.  Your special term calendar for today shows a hearing on two motions for summary judgment in the case of Peter Schuler v. David Dour.  [Note that this exercise, while self contained, is a continuation of the facts in Exercise Three and  CALI CIV 01.]  Defendant Dour has moved for summary judgment on plaintiff’s claim of defamation;  plaintiff Schuler has moved for summary judgment on defendant’s counterclaim for battery.  Your law clerk has prepared the following summary of the contents of the case file.

1. The complaint.  Plaintiff Peter Schuler is a student at Dakota State College.  His student activism has made him a “name” on campus, resulting in his recent election as student body president.  Since his election, Schuler has become even more active, and the most recent demonstration resulted in his photograph on page one of the local newspaper together with a brief interview.  Two days later, a letter to the editor in the newspaper from David Dour questioned why anyone would follow Schuler, “who is a known user of crack cocaine.”

Schuler alleges Dour knew the statement was false or he acted in reckless disregard of whether it was false.  He says Dour has been out to get him ever since he was reinstated as a student at Dakota State.  Schuler had been the subject of a disciplinary hearing, and Dour had made the crack allegation at that time, but when Schuler filed a defamation suit, all parties eventually agreed to drop the whole matter.  [See Exercise Three.]

2. The Answer and Counterclaim.  Defendant David Dour is a professor at Dakota State College.  He admits writing the letter to the editor, but denies all other allegations in the complaint, including that he knew the allegation of crack use was false or that he acted in reckless disregard of whether it was false.  He alleges that he relied on “multiple reliable sources” in making the statement.

For a counterclaim, Dour alleges that Schuler came into his seminar classroom in a rage about the letter.  Schuler battered Dour by pushing him out the first floor window, causing severe cuts and bruises and a broken pelvis.

3. The Answer to the Counterclaim.  Schuler admits entering the doorway of the seminar room, denies touching Dour who was across the room, and alleges he lacks knowledge or information sufficient to form a belief as to Dour’s injuries.

4. Medical Report.  Dr. Anne Hickman, who examined Schuler at the discovery demand of Dour, reports that no traces of cocaine were found in Schuler.  Any cocaine use in the past several months would have been revealed.

5. Oral Deposition of Schuler.  Schuler denies ever using crack or any other form of cocaine.  He denies ever using any drugs.  He believes Dour “well knew” the crack allegation was false because he had made it before at the disciplinary proceedings, then quickly withdrew it when Schuler filed the first lawsuit.  Schuler admits stepping into the seminar room, but denies ever touching or even approaching Dour, and says Dour appeared to fall out the window on his own.

6. Oral Deposition of Dour.  Dour admits he has never personally seen Schuler use crack, but maintains he did not hold actual malice because he based the accusation on “reliable sources.”  He named the sources as three students at Dakota State:  Jane Abbott, John Bauer, and Cynthia Croswell.  Despite vigorous cross examination, Dour held fast to his story that he thought the report true.  He says that he even tried to reconfirm the statement with the three students, but was unable to reach them in the short time before he sent off the letter to the editor, because he “had to strike while the iron was hot.”

As to his claim of battery, Dour says he was sitting in the windowwell, teaching his seminar, when Schuler stormed into the room.  “The next thing I knew, I was on the ground outside with a broken pelvis.  Schuler must have pushed me.”

7. Oral Deposition of Jane Abbott.  Abbott states that shortly before the disciplinary hearing, she glanced through a window and saw a person using crack.  She was taking a class from Professor Dour at the time, and informed him she had seen Schuler using crack.  Dour told her he would take care of the matter.  At the start of the next semester, Abbott had a chance encounter with Schuler that made her realize he had not been the person she saw through the window.  She tried to call Dour once or twice, and left her name, but he never returned her calls.  She has not talked to Dour since her class with him ended.

8. Affidavits of John Bauer and Cynthia Croswell.  Both Bauer and Croswell aver that they are students of Professor Dour’s and were sympathetic to his previous difficulties with Schuler in the disciplinary hearing, word of which had leaked across campus.  Both Bauer and Croswell state that after the hearing, they told Dour he was doing the right thing, trying to rid the campus of a “known drug user.”

9. Affidavits of Dave Duncan and Emily Early.  Both Duncan and Early were students in Dour’s seminar class.  They aver that Schuler stomped into the doorway, but never entered the room.  Dour was apparently so startled that he fell backwards out the window.

10. Plaintiff Schuler’s Motion and Supporting Memorandum in Favor of Summary Judgment on the Counterclaim for Battery and Memorandum Opposing Summary Judgment on the Claim for Defamation.

11. Defendant Dour’s Motion and Supporting Memorandum in Favor of Summary Judgment on the Claim for Defamation and Memorandum Opposing Summary Judgment on the Counterclaim for Battery.

C.  Questions

Please answer “yes,” “no,” or “maybe” to the following questions and formulate the reasons for your answer.  If you believe substantial arguments exist on both sides of the question, you should respond “maybe.”  Do not, however, base a “maybe” answer on conceivable but frivolous legal arguments.  The question numbers correspond to those in the computer exercise.

Q–1. Should summary judgment be granted to plaintiff Peter Schuler on defendant David Dour’s counterclaim for battery?

Q–2a. If you answered “no,” what genuine issue of material fact cannot be determined on the motion?

Q–3a. If you answered “yes” or “maybe,” what issue can be resolved (or may arguably be resolved) as not a genuine issue of material fact, allowing judgment to be ordered?

Q–11. Should summary judgment be granted to defendant David Dour on plaintiff Peter Schuler’s claim for defamation?

Q–12a. If you answered “no,” what genuine issue of material fact cannot be determined on the motion?

Q–12b. If you answered “yes,” what issue can be resolved as not a genuine issue of material fact, allowing summary judgment to be ordered?

Q–12c. If you answered “maybe,” what issue arguably can be resolved as not a genuine issue of material fact, allowing summary judgment to be ordered?

You are now ready to go to the computer terminal to work through CALI CIV 13.  You will be asked to refer to the opinion in Anderson [see I.B., supra] and the fact scenario [see II.B., supra].  You will also need to be familiar with the torts of defamation [see Exercise Three, part III.B] and battery [see II.A, supra].  Have these materials, plus Fed. R. Civ. P. 56, with you.  The estimated completion time for CALI CIV 13 is one hour, although this exercise can be divided into segments to be completed in separate sittings.


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