16-1 LITIGATING SEXUAL HARASSMENT & SEX DISCRIMINATION CASES §16.1
CHAPTER 16: SUMMARY JUDGMENT
§16.1 TASK: DRAFT SUMMARY JUDGMENT MOTION
A summary judgment motion allows the trial court judge to enter judgment in any case in which “there is no
genuine issue as to any material fact and...the moving party is entitled to judgment as a matter of law.” F.R.C.P.
56(c). The moving party bears the burden of proving there is no issue of material fact, and that the moving party
made prior to trial, whereas a motion for judgment as a matter of law is made at the time of trial. F.R.C.P. 50(a).
Summary disposition of cases originally stemmed from collection disputes going back well into English and
Scottish history. In that form, they permitted creditors to execute on debts more easily. Summary judgment as
a process evolved in the United States, and Rule 56 was added in 1937, noting the use and success of summary
judgment in various states. (See 1937 Advisory Committee Notes on Fed. R. Civ. P. 56). In 1986, the Supreme
Court, in Celotex v. Catrett
of persuasion, as the dissent explains:
Where the moving party adopts this second option and seeks summary judgment on the ground that the
nonmoving party—who will bear the burden of persuasion at trial—has no evidence, the mechanics of
“burden” of production is no burden at all and would simply permit summary judgment procedure to be
converted into a tool for harassment.
Celotex 477 U.S. 331-332 (1986) That concern, as discussed below in §220.127.116.11, has borne its truth. Today, sum-
§18.104.22.168 Summary Judgment as a Tool
cases more appropriately dismissed on summary judgment or whether it means that summary judgment is a uniquely
inappropriate tool to apply to them.
In that way they eliminate the possibility that a jury decides not to believe a defense witness. More importantly,
if the case can be dismissed at the summary judgment stage, the defendant never has to face the possibility of a
verdict against it.
for example, over the course of 2011 and 2012, of those cases facing summary judgment, 83% were dismissed in
full and 95% saw at least a partial summary judgment. Even when pro se cases were excluded—such that the world
of cases considered in the study included only those which an attorney had vetted—the dismissal rates dropped to
81% and 94% respectively. See Analysis of Employment Discrimination Claims for Cases in Which an Order was
Issued on Defendant’s Motion for Summary Judgment in 2011 and 2012 in the U.S. District Court for the Northern
District of Georgia. Barrett & Farahany, LLP, September 16, 2013.