1. Summary Judgment– Meeting the BOP

2. If P does have to respond (under Celotex), what does P have to do? According to Rehnquist According to White

3. Our Summary Judgment Problem

4. P C WD Stop

5. What are the facts according to the P’s complaint? What are the facts according to the D’s answer? On a 12(b)(6) motion, what must the court treat as the facts?

6. What does D file? With what does he support that motion? If P had not responded, what would the court have been required to assume? What response did P actually file?

7. What facts must the court consider to be “undisputed”? What factual issues are still in dispute? Are there “material facts” that are still in dispute? How does one decide if a factual issue is “material”?

9. What is the factual issue on which Porter sought summary judgment? What did Porter do to force Arnstein to respond? Would that have satisfied Celotex? Would that have satisfied Adickes?

10. What evidence is there that Porter copied Arnstein’s songs? Comparison of two songs Does not rule out copying, but Does not, by itself meet P’s BOP on copying, but Would meet BOP if P could meet BOP on ___________. access

11. What evidence is there that Porter had access to Arnstein’s songs? Arnstein’s affidavit about Porter’s stooges Evidence that someone broke into apartment No evidence tying Porter to break in. 1 Million copies in print.

12. I never saw or heard Arnstein’s songs. I wrote (e.g.) “Night and Day” myself. How can this testimony meet Arnstein’s BOP? Demeanor & the Burden of Production

13. Dyer v. MacDougall

14. Focus on Counts 3 and 4 What did P allege in Count 3? D MacDougall said to Almirall “P’s letter was a blackmailing letter” What did D submit in its MSJ re Count 3? D’s affidavit, “I never said it.” Almirall’s affidavit, “D never said it to me.” Does this satisfy Celotex? Why doesn’t P just submit his own affidavit that D did say it? What could P do to prove statement was really made? Did P violate Rule 11 by filing this case?

15. What did P allege in Count 4? D Wife said to Hope “P wrote and mailed a blackmailing letter” What did D submit in its MSJ re Count 4? W’s affidavit, “I never said it.” Hope’s affidavit, “W never said it to me.” Anything different about this count? Who is Hope?

16. How can D move for SJ when Counts 1 and 2 are still out there?

17. Complaint Motion to Dismiss Answer Discovery Completed Trial Motion for Summary Judgment What do you do if D files for SJ before you complete your discovery?

18. D’s Directed Verdict Area P’s Directed Verdict Area Jury Decision Area How does the burden of persuasion effect the burden of production? Shifts BOP Meets BOP Preponderance Shifts BOP Meets BOP Reasonable Doubt