Unilateral activity not enough- Kulko/Worldwide. QPQ suggestion.
Effect test- 1.Commit intentional act 2. Expressly aimed at forum 3. Causing harm D knows will be suffered in forum- Kulko/Keeton
Continuous relationship w resident-
BK- contract- but look at the context. `Reach out' to state.
Reasonable anticipation haled into ct- Brennan BK dissent & Worldwide
Affiliating circumstances- Worldwide- in state sales, marketing, services
Stream of commerce- Asahi Brennan dissent- profits=purposeful availment
Purposeful direction- O'Connor Asahi & Keeton- must show intent, design, advertise. Stevens questions this line in Asahi.
State regulatory interest- emphasis of McGee and Brennan in Hanson
Internet
Effects test- Bellino- MC through internet if purposefully avail
Zippo test- sliding scale
Passive v. Active websites
Middle ground- interactive
Arising out of cause of action- note Helicol Brennan dissent- arising out of/related to
World-Wide 5 prong Reasonableness Test- part of fair play/sub just
P's interest in litigating in this forum? (generally the interest of this class of Ps of litigating in forum, not always that strong of a prong. Less if P is not citizen of state- Ashai)
State's regulatory interest in adjudicating? (frequently the interest is expressed in a long arm statute, strong interest not necessarily required- in Keeton, long-arm statute does not intuit interest. McGee)
Shared interests of all states in furthering substantive policies? (emphasize substantive policies. Zapata- int'l trade)
Interstate judicial system's interest in efficient resolution of disputes (state has interest in reducing number of suits, efficiency. Where are witnesses, evidence, etc?)
Burden on D to defend in this forum? (BK says D needs compelling case to argue that the forum is inconvenient, P does not need to argue that forum is not inconvenient)
CONCLUSION- Authorized under statute but does/doesn't pass constitutional test
Notice/Opp:
Notice and Opportunity to Be Heard
Notice
Due Process. Fairness to litigants.
Mullane is main founding
Must be reasonably calculated under circumstances to apprise interested parties of pendency of litigation and afford them oppty to voice objections
If address ascertainable, have to supplement with mail if possible- mail system inexpensive and efficient
Greene v. Lindsey
Has to be by mail, can't be posted on door- cert mail is like in-hand
Vigorous dissent
Dusenberry
As long as system in place, sufficient, about prisoner
H likes this case- Brings up qs about other ppl under control of gov't
Jones
Notice wasn't sufficient bc state knew that D wasn't receiving notice, when knowledge that notice has failed, due process is violated
Dissent- gov't should have just considered info at time of procedure
Statutory basis- Rule 4-
4(e)- service in any J. 4(e)(1)- gov't can piggyback on state law.
4(f)- US citizen can serve anyone living abroad. Beware foreign laws.
Opportunity to Be Heard
Snidach- wages=property and cannot take away unless D can set forth defenses
Fuentes- need prior hearing. Unless special need/gov't/public interest
Carden- Brightline distinct. btwn corps and unincs, assocs & parts
Ct considers the citizenship of each of an association's/partnership's members for purposes of diversity.
Strategically Using Diversity Jurisdiction to get into Federal Court: 28 USC 1359
Under 1359, can't collude to get diversity- collude is giving away claim
Tests for collusivitiy:
is there a legit commercial interest for the assignment?
Balancing test, weigh legit purposes against collusive ones.
Time it was assigned (prior to suit or after suit)
How often an interest is assigned (what the usual policy is)
Defeating diversity
Rose- Rose wants to stay in OH so adds party to defeat diversity
Rose rule:
Parties must be real parties to the case (interest in the result)
nominal parties don't count (nominal party has no interest in the result of the suit or subject matter control over the litigation)
Diversity: the only real parties are Rose (OH) and Giamatti (NY)
A court can rewrite the party lineup to police jurisdiction.
Amount in Controversy- 1332(a)- need greater than $75,000
ON EXAM- question P's motives in bringing that amount.
P's claim must be good faith unless D can show to legal certainty claim is less
Injunctions- Q of how we should value them for purposes of meeting the AIC
P and D's perspectives- one party might want more than other
Courts use both perspectives (argue both on an exam)
Aggregation
Any 1 P can aggregate all claims against 1 D- efficiency
Many Ds- Liability issues indivisible among parties for them to aggregate.
Many Ps- if each indivisible, then can aggregate. If can separate, not.
Arising Under J
Constitutional Basis
Article III § 2- arising under Constitution, laws of US, and treaties made
Osborn- federal ingredient “lurking”
Statutory Basis- read more narrowly than constitution
28 U.S.C. 1331- ct shall have original J of all civil actions arising under Constitution, laws, treaties of US- fed issue embedded in state based claim
Face of well-pleaded complaint (Mottley)- elements of cause of action
Smith- FN 12 of Merrell Dow- two ways to see Smith-
Smith cuts into Mottley, narrowing it to only issues which are substantial that appear on the face of the complaint
Smith expands and is independent of Mottley:
J rests solely on if the fed issue is a substantial one- const. issue in Smith
J can be satisfied even if Mottley brightline test is not satisfied.
Moore- all activity is intrastate, so no fed issue. Reference to fed issue is not suff.
State tort law had fed law standard; doesn't mean substantial issue fed law
Merrell Dow
Only if Congress put PRA in statute- Stevens majority. No way for individuals to enforce issues themselves, so Congress didn't intend 1331.
FN 12: Substantiality and Constitution- if the issue is still so substantial (i.e. bordering on constitutional) you could bring suit in fedl court. (Smith)
Dissent: (Brennan): Absence of PRA in law does not mean Congress intended no J; fed law questions are complex and fed cts must deal with them. Silence is not a negative. (Grable)
Grable
Lack of PRA just missing welcome mat- doesn't bar from fed ct *TRANSITION
If issue so substantial, can have fed forum- like tax system
Three part test for substantiality of fed issue embedded in state law claim:
State law claim necessarily raises a federal issue
Whether federal issue is actually disputed and substantial
Ask whether affording a fed forum would disturb “any congressionally approved balance” of fed and state judicial responsibilities
Empire Health Choice
Empire affirms Grable prongs 2 and 3
No express creation= no intention of conferring
***IDENTIFY FEDERAL ANCHOR CLAIM (for 1367)
Protective Jurisdiction
Elements:
Form of “arising under” jurisdiction
Protective jurisdiction arises under a jurisdictional grant
Congress can enact a fed (substantive) law in the given situation, but instead creates a fed forum through the statute) and the fed court can create fed common law or rely on state common law to fill in the (substantive) gaps.
Good tool for Congress to use when issues are highly politicized
Supplemental Jurisdiction
Pendent- P has SMJ under 1331 or 1332, wants to bring claim w/o SMJ
Ancillary- P claims against 3rd party D- 3rd party counter or cross claim
Gibbs- discretionary rule of J- cts hear cases not just claims
Has anchor fed claim, wants to bring state law claim as well
Constitutional test- if in same nucleus operative facts as fed issue, can bring
Arising under J applies when anchor claim arises under fed q
Form part of same case/controversy under Art. III. Includes joinder and add'l parties.
1367(b)
No J for those joined under Rules 14, 19, 20, 24
1367(c)- factors to consider when deciding not enact supp. J
Novel and complex qs of state law
Anchor claim has been dismissed
Supp claim is major claim
Exceptional circumstances
Removal Jurisdiction
* Transfer device that allows D to transfer from state to federal, P can choose from either forum and 1441 allows D to then transfer
*Exception- if sue in D's home state, can't transfer- 1441(b)
Venue & FNC:
Venue
Easy to add with PJ. Even if have PJ and SMJ, will engage in venue review.
Largely matter of convenience within the state. In theory protects D from inconven.
Section 1391
1391(a)- looking at J based only on DJ
1391(b)- looking at J not founded solely on DJ
1391(a)(1)- when DJ, if all Ds live in same state, J where any D resides
1391(a)(2)- when DJ, if different states for Ds, J where subst. part of events/omissions giving rise to claim or subst. part of property subject of action
1391(a)(3)- when DJ, a J where D is subject to PJ, if no district in which action may otherwise be brought
1391(a)(3) vs. 1391(b)(3)-
b3 contemplates tag J whereas a3 provides for MC test;
Some cts read PJ under default rule for a3 and tolerate J for district w tag presence in b3
Other cts say there aren't 2 default rules- need default rule for foreign D
FNC
Judge made doctrine
Gulf Oil Corp.- sets forth private/public factor balancing test
Private factors- ease of witnesses, gathering info, enforceability of judgment- stop P from picking particularly inconvenient forum for D
Public factors- want local jury to decide, local interest in local forum
Piper- uses balancing test of Gulf Oil
Forum non conveniens view of foreign Ps in US
Ps will now often make argument about why forum is conven. for D
Ct doesn't want to engage in extensive review of foreign law
10) US only HAS to taken foreign case if no remedy in foreign country
Case Management:
Case Management
Rule 16- Discretionary doctrine- judge has a lot of power
Governs administrative conference pre-trial
Allows judge ability to manage caseload.
Velez-D misses deadlines, loses- importance of lawyer time management
Important powers of judge under rule 16:
Scheduling orders: 16(b)- issued 120 days after complaint
Directs judges to schedule after receiving rule 26 discovery report.
A lot of work for parties to do after 26(f) filed
Power at pre-trial conference 16(c):
Gives Judges extraordinary power at the conference:
16(c)(5):
Direction to summary judgment
16(c)(8):
Referral to Magistrate judges
Can't be a law clerk
Connonly v. National School Bus Service, Inc.
16(c)(9):
Judge can direct parties to settlement negotiations
Nick case
Final pretrial conference (16d):
after all is over to formulate plan for trial
Pretrial order: (16e)
Very difficult to get a pretrial order amended.
Payne case p. 848:
applies manifest injustice standard of 16e
Scheduling order upheld even though it was mislabeled.
P couldn't raise issue not in pre-trial order
Sanctions: (16F)
Judge can impose sanctions for failure to comply with these orders.
Nick case:
imposed sanctions on party for failing to go to ADR.
State court case management
States have created their own remedial structure paralleling a judge's rule 16 power, but there are differences (judge power might not be as great).
Discovery:
Discovery
In Re Petition of Shelia Roberts Ford
27(a)(1)- Thompson takes it as preserving extreme circumstances- preserving testimony of witness about to leave or witness who was going to die according to common law
27(a)- perpetuate theory is P is barred by rule 11 of filing complaint until good basis for complaint- if doesn't get info, can't file complaint
Rule 27 cannot help fulfill Rule 11 obligation
Rule 26(a)- mandatory disclosures
Must disclose potential witnesses, documents, calculation of damages, insurance- v specific
Parties not required to actually produce documents
Rule 26(b)- what you can ask for
Things that are relevant to claim/defense of any party and reasonably calculated to lead to discovery of admissible defense and neither
Privileged
Nor Prepared/acquitted in anticipation of litigation or for trial, unless
Discovery has been otherwise limited by a protective order of the ct
Cummings v. General Motors Corp.
Highlights 26(a) in practice
After judgment and P loses, P learns manufacturer had video in another lawsuit that showed defects in child safety seat
Mandatory disclosure of info does not solve all info gathering problems
Initial interrogatory used to draw roadmap
Hershkoff- badly reasoned, requires too high level of precision of the interrogatory, of the lawyer
Lawyer should initiate investigation into prior studies on same topic as pending litigation- don't need discovery
Rule 26(f)
Parties must confer with each other to develop proposed discovery plan
Plan must include timing, form, disclosures, subjects
Attempt in good faith to agree then submit plan to ct within 14 days after conference
After mandatory disclosure, march through the rules-
Rule 30- Depositions
Formal proceeding outside ct's hearing where format qs presented
Very rigid subrules about deposition practice- no longer than a `day'- 7 hours
Given to both parties and non-parties under oath, extensive planning
Written questions, propounded only to opposing party
Can use them to ask about legal theory
Toughened up- now only 25 qs
Might prefer them to depositions sometimes-
Lawyer answers interrogatory- party answers deposition
Certain qs you'd rather have answered by each party
Want lawyers to tell legal theory
Maybe want a paper trail
Rule 34- Production of documents
Not just request for `documents'- might be for other evidence, emails, phone calls, guns, inspection of premises (call location `tangible thing), etc.
Assuming electronic things are `documents'
Rule 35- Physical and mental examination of persons
Court order always required to do this. Only used against party in suit
Rule 36- Requests for admission
Asks other side to admit truth of particular facts- most underused discovery rule
Rule 37- Sanctions for failure to fulfill discovery obligations
The courts can sanction a party for not meeting the mandatory requirements
Could sanction w money or admission of facts not supplied
New Rules
Direct party to discuss electronic discovery- makes clear that electronic info is discoverable
Cts will need to do a lot to work out these issues- some judges more apt than others
Erie:
ERIE DOCTRINE
Eriequestions generally arise in diversity actions
Statutes
Rules of Decision Act: 28 U.S.C. § 1652
Laws of the states will be the rules of decision in civil actions unless Constitution, treaties of US, or Acts of Congress require
Rules Enabling Act: 28 U.S.C. § 2072
SC has power to prescribe rules of practice and procedure- these rules will not modify, abridge, enlarge substantive rules
Policy considerations
In favor of applying state law in federal court
Should get same decision on same cause of action, regardless of court
Federalism- pay respect to states- fed cts should reach same decision
Certainty
In favor of applying federal law in federal court
Fed ct reigns supreme
Fairness- like right to jury trial more fair than state ct
TEST 1: Diversity case when a state law conflicts with fed law that is not FRCP. Look to RDA and determine whether to apply the law of the states.
Erie:
Categorical rule against applying federal statutory or general common law.
Twin aims- prevent forum shopping, no equitable administration of justice (identified in Hanna)
Guaranty Trust:
Outcome-determinative test: Ex ante examination of whether the state law or rule will affect the court's decision.
Policy: Given principles of federalism underlying Erie—federal courts ought to produce the same results as in state courts.
Byrd: Brennan
Test- Apply state rule if it's bound up in rights and obligations of party.
Ask if a state law is merely a form/mode of enforcing a right or obligation
Unless principles essential/integral to fedsystem that warrant applying fed law- fed system supremacy/fairness. Balance- countervailing fed consid.
Might add Gasperini analysis- harmonize the state and federal laws
TEST 2: Diversity case where FRCP conflicts with state law: Look to REA
Say diversity or arising under J
Identify conflicting laws
Then note that can regulate procedure under REA and Art I (Congress can
make all laws necessary and proper), III (judicial power extends to hear cases)
Walker- read narrowly. Walker FN 10- FRCP should be given plain meaning, don't narrow to avoid conflict. If direct collision, look at Hanna test.
Hanna Sibbach test- if really regulates procedure. Need uniformity.
Harlan's Hanna concurrence- in court house or out of it.
Hanna- presumption all FRCP really regulate procedure
Can apply state law if can reason no conflict (Walker), FRCP- enlarges, modifies substantive right.
2072(b): The rule enlarges, abridges, or modifies a state substantive right. RDA says state substantive rule should govern
Could use Erie, Guaranty Trust, and Byrd to analyze this
Does federal rule affect the outcome?
Are there countervailing federal considerations? (Byrd and Gasperini)
Might add Gasperini analysis- harmonize the state and federal laws
Boyle- two prong takeaway rule-
Federal interest- Military exception- immunity of US gov't in carrying out discretionary military functions- shields private contractor, stands in shoes of gov't, fed fiscal interest
Conflict- P must show using state rule would conflict w fed interest/hurt fed objective doesn't federalize all state tort law, but you have to weigh fed intrst
Ct can create fed common law to elaborate on statute or Constitution or fill in statutory gaps- enclave theory (in certain fed commercial liability, fed official liability, military, international relations)
Brennan dissent- We are judges, not legislators
Not appropriate occasion for fed common law rule bc Congress is conspicuously silent on the creation of this rule
Stevens dissent- Courts should not initiate new policies
Interstitial lawmaking- Congress is lawmaker- leaves gaps that cts fill (things like statutes of limitation)
Scalia's response to dissents- Cong can always overturn (slow in practice)
Pleading:
Pleading
How to approach 12(b)(6) motion:
Policy considerations-
In adversary system, want parties to have to set forth claims, ct won't create a claim
Also want claims to move fwd- only grant 12b6 if no way to have claim
Are there a set of factual circumstances in the world upon which the Court can grant relief under the law? Ask this when deciding to grant.
Set out elements of claim. According to ___ statute.
Determine who has burden to prove what.
How would the Court assign those elements?
Enacting clause (P has to plead this)
Essentiality- P has to plead those essential to the claim, logically necessary to make out discrimination
Probability- might say P has to plead everything- P tends to plead those things that are most improbable- things that don't fit in w typical view of world.
Common sense- is it a negative? P prob won't plead negative
Is it an affirmative defense? If so, P won't plead.
Access to information
Policy- about way pleadings are assigned- do we want to make it easy for P to bring this COA? Ps to bring these types of COAs?
Once you have determined what P must plead, has P met its burden?
This leads to two possible courses of action
Can dismiss the complaint for failure to state a claim. It is P's responsibility to plead the necessary facts.
Can look for ways that P can properly state a claim.
Is the problem one of failure to state the necessary facts?
Rule 12(e): Allow P to amend complaint because of factual ambiguity- D would submit
Rule 15(a): Can conditionally dismiss the complaint and give P time to amend and resubmit.
Is the problem that P has not properly stated the law?
Narrow view of Case- Not duty of ct to create a claim that P fails to spell out.
More forgiving view like American Nurses- Ct could make inferences- ask P to clarify the vague elements
Court could rule that the showing of effect is sufficient now, and intent will be discerned after discovery
Other Pleading Rules
Rule 7- Pleadings Allowed, Form of Motions
Complaint- P
Answer- D
Reply- P
Rule 8-
Rule 8(a)- short/ plain statement of J and short/plain statement of claim showing that entitled to relief
Party to whom burden of pleading is allocated has burden of raising that issue in the case by putting that issue in the pleading- if not in pleading, ct may give opportunity to amend- if gap cannot be filled, pleading is defective and won't survive 12(b)(6) motion
Pleading should be constructed as to do substantial justice
Burden of affirmative defense is on D
P and D have to prove all of the elements respectively allocated to them
Rule 11
Way for cts to police proceedings
11(b)(2)- must make nonfrivolous argument for changing existing law or come within constraints of existing law
11(b)(1) Not brought to harass or cause unnecessary delay
11(b)(3) have or likely to have evidentiary support for allegations
11(c) makes you talk to adversary- highlight to other side what is lacking- only if other side won't budge do you ask ct to intervene
Who is bringing the action?? Think why? (To show that it's not frivolous)
Rule 12
12(b)(1)- SMJ
12(b)(2)- PJ
Preclusion:
Preclusion- Rationales and Tips
Preclusion cases- you need to go slowly through the procedural history
Once you've had your chance to litigate, it's done! P needs efficiency
Uniformity
Claim Preclusion
What is rule of rendering court? (Forum 1) Enforcing court follows this rule.
Leads to dismissal- claim preclusion is total defense. Merger and bar- rights against that D are merged into F1 and barred from litigation in F2
We want Ps to bring efficient lawsuits
Same Parties
Only a party to a prior lawsuit or a party in privity to the original party will be precluded by judgment
Privity- legal relationship that says two individuals stand in the same legal shoes and one can represent the interests of the other (sometimes husband/wife, co-owners of property)
Class actions- if potentially member of class and interests already presented, maybe claim precluded (even if no actual notice of case)
Absence of notice to missing class members might come into play
Idea that Ps in case represent interest of those not there
P not COMPELLED to add parties- master of claim.
Note that we might like to know more about joinder rules.
Rose- example of not real party in interest
Judgment on the merits
Language not used so much anymore- settlement satisifes
Was this litigated and decided on some particular type of claim
If P has oppty to amend after 12b6, ct will dismiss w prejudice, that equals claim preclusion
Failure to prosecute- claim preclusion
Valid judgment- had PJ, SMJ, notice consistent w due process
But w/o SMJ, just erroneous and not null and void- can be challenged as lacking preclusive effect but v little case law (Des Moines v. Iowa) In Restatement
Notice- Jones v. Flowers
Final
Interlocutory, injunctions- not claim preclusive
Alternative holdings are claim preclusive. Dicta is NOT claim preclusive.
When there's dicta, ct can either choose to use or not. Look at why ct might choose one rule over another.
Majority rule- preclusive effect even before appeals are finalized
Claim was or could have been litigated in the previous case
Usually use the transactional test (Rush- accident w personal injury and property damage claim) Common nucleus operative fact. Same as test used for 1367 coming from Gibbs.
Exception- continuous activity not considered same claim
Financial instruments- when series of payments, typically ea payment is its own contract. Need to know substantive rules- look to the language of the financial contract.
Can split for certain diseases- asbestos is one
Sometimes you can for divorce
Issue Preclusion
Same Issue
Look at broad v narrow issue- mediate v. ultimate issue? Previously, more narrow view. Now- ultimate. Almost transactional approach.
Cromwell- need identical issue- not always mechanical to identify
Frame issue- look at substantive law.
Actually Litigated - some evidence is presented to a fact finder
Cromwell v. County of SAC- says actually litigated! Sets forth rule.
Fully and fairly litigated- Blonder Tongue
Majority- actual presentation of evidence= hazard rule- party seeking benefit of issue preclusion would say we've litigated this issue, provide evidence
Minority- Vestal rule- mere oppty to present evidence means actually litigated- that's a lot better for party trying to assert issue preclusion. Issues set forth in pleading are seen as actually litigated.
What it does NOT mean-
A guilty plea- but this might be changing bc ct does a lot of investigation to make sure guilty plea is knowing and voluntary
Issue needs to be essential for Judgment-
If ambiguity about essential to judgment, not issue precluded- Russell v. Place and 2nd Restatement- has to be only way ct decided that issue
Why did B lose? Why did B win?
Were there alternative holdings?
Don't want viral effect- don't want non-essential issues to stay alive, especially if they were wrong.
Necessarily decided- Need some sort of statement by ct saying found for issue X or Y
Could be the only way ct decided
The judgment has to be entitled to respect
Issue has to be raised by the parties- this rule might also be changed
Mutuality
Old rule- if no mutuality, can't get benefit of prior judg. if not bound.
Now- non-mutual collateral estoppel. Established in Bernhard. Traynor.
Defensive
Same P in both forums, different D
Typically P lost in forum 1 on that issue
D tries to say, already lost on this issue
Nothing wrong per se w P going D shopping- but suspicious bc we want Ps to bring efficient cases
Bernhard case is precedent
Often will look like claim preclusion bc result is the same
P might be under incentive to overlitigate in 1st case- bring every conceivable D, issue into 1st case
Might produce unfairness to P if didn't know in F1 that could have litigated
Totally judge made
Fed cts given discretionary by Blonder Tongue. Not discretionary in Bernhard.
Offensive
More suspiscious
Worried that lawsuits would multiply and litigation would be less effective
Worried that P is pulling “wait and see”- look at specifics in this case and see if it's likely P is
Same D in F1 and F2. D lost in F1
Different P in F1 is trying to assert to bar
Parklane- lack of jury didn't prevent ONMCE- sets forth discretion
Discretionary factors
Make sure all regular issues of issue preclusion satisfied
Look at quality of prior judgment
Parklane was administrative hearing
Was there full/fair oppty to present case- was there a jury? (doesn't matter as much for IP)
What did prior forum look like- admin law ct, traffic ct, fed ct- issue treated w respect it deserves?
Could P have joined in 1st action? Important in Parklane
Joinder rules
Did D have full incentive to litigate the case
Did D have full procedural opportunities to litigate
Would ruling for P be inconsistent w rulings of prior cts (on this particular issue- all 50 Ps one, 1 lost, should that 1 be allowed for issue preclusion)
Is ruling of prior ct inconsistent w rulings of other cts
Would this decision create `wait and see' incentive for other Ps?
Policy
Look at efficiency- is P just pulling `wait and see'
P can bring case as narrowly as wants in terms of issue.
Summary Judgment:
Summary Judgment
Rule 56
No genuine issue of disputed material fact for the part of complaint that non-moving party has the burden to prove. Trying to decide if trial is necessary.
Assuming the facts in the light most favorable to non-movant.
Set forth burdens of allocation and the elements.
Movant wants SJ on which element? All? Who has burden at trial?
When should the motion be granted?
Material fact- anything you need to establish elements of claim- everything P must prove at trial in order to win
How do you establish the lack of a genuine dispute of a material fact?
Affidavit won't help
Rule 56(f) contemplates granting of continuance in order for party to do necessary discovery
Whether there is a dispute on facts may turn whether appropriate to draw an inference or not on facts that we know are true
Celotex Corp v. Catrett
D moves for SJ on theory that P had burden of allegation/persuasion and failed to establish any issue of material fact
P presents 3 pieces of evidence- but they wouldn't be admissible at trial
Exam- ask if this is a prove it motion
Burden should lie on P, the question is when-
Adickes- only after movant has put in evidence foreclosing possibility of jury drawing inferences in P's favor- v high burden for movant to meet. Chills SJ.
Rehnquist- Celotex majority- D just has to “show” absence of evidence to support non-motioning party's case
The effect- allows `prove it' motions
Burden should lie where it lies at trial
White- Celotex concurrence-
Making the D `show' places greater burden than Rehnquist believes- that it is `prove it. Rehnquist denies this.
Movant must discharge burden rules place upon him- `prove it' is not enough, motion must be supported
Brennan- Celotex dissent-
D can't just make a `prove it' motion- must submit evidence if it exists.
Burden should only shift to P after D presents evidence
Supports Adickes- thinks Rehnquist incorrectly applies rule of Adickes here- should have made Catrett depose witnesses
