Chapter 13: Pretrial Motions

Motions affecting the scope of litigation — consolidation under Rule 42(a), MDL centralization under 28 U.S.C. § 1407, severance, and separate trials — give parties and courts the discretionary tools to balance efficiency, fairness, and Seventh Amendment jury rights when shaping how cases are tried.

Chapter 13

to the Merits and Trial

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Lawyers spend a great deal of their time shoveling smoke.

Oliver Wendell Holmes, Jr.

§ 13.1 Motions Affecting

Scope of Litigation

§ 13.1.1 Introduction

Motions are available to control the scope of litigation. These motions may be used by the parties and the courts to achieve the fair and efficient handling of cases. Motions may permit two or more cases to be handled as one action for the purposes of pretrial matters, or to combine the cases into a single trial. Similarly, it may be necessary or desirable to have certain issues tried separately, either to prevent an unduly complex or confusing trial or to prevent unfair delay or similar prejudice.

Courts have great discretion in dealing with motions to control the scope of the litigation. Generally, they require a balancing of competing interests. Because of the wide discretion involved, arguments on these motions are particularly focused on the facts in addition to the law.

This chapter explains the wide variety of motions that can be brought that affect the scope of a case. An LLM can also help identify and assess for a particular case which motion may be available and effective. It’s up to the advocate to decide whether a type of motion is warranted and is likely to succeed.

§ 13.1.2 Consolidation

Federal civil practice provides for essentially two types of consolidation: (1) consolidation of pretrial proceedings and (2) consolidation for trial. Federal Rule 42(a) provides for both varieties of consolidation. 28 U.S.C.A. § 1407, the multidistrict litigation (MDL) statute, provides for centralization of cases before a single judge, but does not in itself result in consolidation. Most centralized cases are, however, consolidated by the transferee judge for all pretrial proceedings. As a practical matter, pretrial consolidation is more common because it is usually more readily available and convenient. Both types of consolidation require that there be a common factual question, and most courts additionally will exercise discretion to consolidate only when it will provide speed, efficiency, cost savings, or convenience. These standards are more likely to be met in pretrial than in trial consolidation. State courts commonly have similar rules for their cases.

Far-flung actions involving the same parties or transactions are often consolidated for pretrial proceedings in order to provide efficiency and conserve resources. Most courts will consolidate for trial only when at least substantial portions of the related cases can be tried at once before the fact finder. This standard is ordinarily more difficult to meet than the common parties, common issues, convenience, and distance standards applicable to pretrial consolidation. Under the federal rules, different actions cannot be merged into one, but different actions can be tried together and decided by the same jury or judge. Thus, in the typical situation, the cases of A v. D, B v. D, and C v. D become, by appearance at trial, A and B and C v. D.

Courts probably have inherent power to consolidate the pretrial proceedings and trial of cases pursuant to their docket control authority. Rule 42(a) has codified this authority by providing that the judge may order a joint hearing or trial “of any or all the matters in issue in the actions” whenever the actions involve a common question of law or fact. The rule further authorizes the judge to order all such actions consolidated and to make all appropriate procedural orders “as may tend to avoid unnecessary costs or delay. In effect, the rule establishes a necessary but not sufficient condition for consolidation—existence of common legal or factual issues. If the requisite commonality exists, the court has discretion to consolidate, to whatever extent is appropriate.

The multidistrict litigation (MDL) statute, 28 U.S.C.A. § 1407, sets forth nearly the same requirement that federal actions to be consolidated or coordinated have a common question of fact but, in contrast to Rule 42(a) is not concerned with common legal issues. For centralization, § 1407 specifically requires that the MDL panel find that transfer “will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of such actions.” MDL litigation is discussed in Sections 13.1.3. Rule 42(b) does not authorize consolidation of cases pending in different districts. Such consolidation can be accomplished only by transfer pursuant to the MDL statute (or change of venue) and then consolidation by order of the transferee judge. Similarly, many courts have rules providing for assignment of multiple related cases to the same judge, but do not consolidate the cases.

In either Rule 42 or MDL consolidation, the court may consolidate only so much of the actions as is prudent, severing the non-related or non-economical portions of the matters, and in MDL actions, remanding the severed portions to the districts where they were originally filed. Refusal to consolidate will seldom be an abuse of discretion, unless some litigant actually suffers undue prejudice from separate trials. Consolidation rulings are likewise seldom reversed as an abuse of discretion unless the consolidation brings confusion, increased expense, or unduly prejudices some litigants because of joinder with others.

These negative aspects more often occur in trial consolidation. In ordering consolidation for trial, the judge must consider the Seventh Amendment and ensure that all litigants have the same right to jury trial that they possessed when the actions were separate. However, the mere trial of multiple issues involving multiple parties by one jury does not violate the Seventh Amendment, just as trial by different juries of separated issues does not violate the Seventh Amendment.

Consolidation of some actions may be automatic under the local rules of the applicable federal court. Many state statutes or rules provide for either mandatory or discretionary consolidation. Most federal district courts require litigants to designate cases as related to prior pending actions in the district where they address the same transaction or occurrence or involve some of the same parties. Even where counsel does not so designate, the court clerk may automatically consolidate upon review or judges may consolidate cases sua sponte if the requirements of the local rule appear satisfied.

Rule 42(a) sets no time limit for seeking consolidation. Motions to consolidate pretrial matters typically occur when needed and their timing depends on the needs of the case. Motions to consolidate for trial are generally deemed untimely if made after the final pretrial conference or the filing of the final pretrial order.

Neither the grant nor denial of a consolidation motion is a final order appealable as of right. Although the collateral order doctrine and special certification under 28 U.S.C.A. § 1292(b) have been used to permit interlocutory appeal of such orders, this is rare.

LLMs can streamline development of consolidation arguments by rapidly analyzing vast collections of case files—across all of the cases that may be consolidated—to identify factual and legal-issue commonalities. By comparing pleadings, discovery materials, and prior rulings, GenAI can pinpoint overlapping facts, claims, and defenses, ensuring that courts and litigants recognize when consolidation is appropriate. (And conversely, for defense counsel, showing when consolidation is inappropriate.) Additionally, LLMs that are connected to legal databases (e.g., cases, statutes, regulations, motions, briefs, orders) can extract precedent from past consolidation rulings, providing attorneys with persuasive precedent. This capability helps legal professionals argue for or against consolidation more effectively, backed by data-driven analyses, called precedent.

Beyond case law and “cases like this” district-court precedent, LLMs can also assist in procedural and statutory analysis. If they’re connected to legal databases, GenAI can cross-check the rules, MDL standards, and local rules to confirm whether consolidation is permissible and advisable. They can also analyze statutes (e.g., [28 U.S.C.A. § 1407](https://www.westlaw.com/Document/N646D8181B21C11EDBC6599A3CD663210/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N646D8181B21C11EDBC6599A3CD663210/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)) to identify statutory language that supports or limits consolidation—coupling that with facts of the case. Additionally, GenAI can generate well-reasoned, and well-supported motions for consolidation, tailoring well-founded legal arguments to case-specific facts. If you include analytics tools that outline judicial trends based on past rulings, LLMs can also help attorneys strategize more effectively, anticipating a judge’s likely decision. LLMs can enhance efficiency, reduce costs, and provide more informed consolidation arguments, based on precedential data.

§ 13.1.3 Centralization in MDL Litigation

Multiple cases filed in different federal district courts can be centralized by the Judicial Panel on Multidistrict Litigation, explained way back in Section 4.8. When cases are transferred by the Judicial Panel, they are not truly “consolidated” in the transferee district. They remain separate actions, subject to whatever degree of coordination the transferee judge deems appropriate. Because all transferred cases must be remanded for trial in the district where they were filed if they are not resolved in the transferee district, they cannot all be consolidated for trial. Following remand, the cases originally filed in the transferee district (and thus not being remanded) can be consolidated for trial.

A party seeking centralization files a motion with the MDL clerk in Washington, D.C. and also files the pleading in the district where the affected cases are pending. The Panel may transfer cases on its own initiative. The MDL Panel, comprising seven circuit and district judges appointed by the Chief Justice, holds monthly hearings on motions to determine the propriety of transferring cases and consolidating pretrial matters before one federal district judge.^[1]^

§ 13.1.4 Severance

Severance involves the parties in the lawsuit. Unfortunately, many judges and lawyers have used the term severance when they should have used separation to refer to a decision to conduct separate hearings or trials. When an action is severed, multiple actions are created and each of the newly made cases usually proceeds to a final judgment independent of the other severed claims that once comprised but one action. When separate trials are ordered, the claims or issues are tried separately, but one judgment is entered for the action as a whole.

Severance is governed by Rule 21, not Rule 42(b). Fed. R. Civ. P. 21 severance is a cousin to severance under criminal rules concerning prejudicial joinder. Pursuant to Fed.R.Crim.P. 14, the trials of criminal defendants may be severed so that Defendant A, Chauncey Frontman, is not unduly prejudiced by trial before the same jury with defendant B, Butch Fingerbuster. In civil actions, severance is most frequently used to correct jurisdictional or pleading defects.

Separate trial (“separation”) concerns issues as well as claims and occurs when the court conducts different proceedings limited to particular issues of the case. This process is governed by Rule 42(b). The most common form of separate trial is bifurcation of the liability and damages phases of trial, which is discussed in Section13.1.6. Separation is used to promote convenience and judicial economy and to divide and decide first the issue or issues that may make further proceedings unnecessary. Civil lawyers (no oxymoron intended) will have relatively few occasions for seeking severance but will seek or oppose separation many times in a career.

Rule 21 provides that parties may be added or dropped by court order on motion or sua sponte and that any claim against a party may be severed and proceeded with separately. The Rule provides authorization but not a specific standard for granting or denying motions to sever a party or claim from an action. Case law provides the standards.

A claim may be severed in order to provide for efficient disposition of the case where multiple unrelated claims involving different parties might cause confusion. Severance of this type resembles separation, as does severance to accommodate party or witness convenience. Claims have also been severed for venue transfer to a more convenient forum. Severance can also be used to correct a procedural defect of the case. For example, claims have been severed to cure improper venue by severing the claims against those parties raising winning venue defenses. The severed claims may then be either transferred or dismissed. Individual claims have been severed when class action certification is denied. Separate trials have been ordered to prevent prejudice. Logically, severance would similarly be available. As with consolidation and separate trials, the trial court is vested with broad discretion with severance being the exception, and not the rule.

The federal rules enunciate no time limit concerning severance. A severance motion made at or before the final pretrial conference will usually be timely. Neither a grant nor a denial of severance constitutes a final, appealable order. Similar to consolidation or separate trial orders, severance orders may occasionally meet the requirements of the collateral order doctrine or may merit trial court certification for appeal pursuant to 28 U.S.C.A. § 1292(b). Usually, they are not immediately appealable.

§ 13.1.5 Separate Trials

Separating the trials or hearings of different issues presented in a case has proven an effective management tool for judges. Separation (not to be confused with the above severance) can be used to decide a jurisdiction or venue issue by resolving the matter early in the case, even (or especially) if it involves fewer than all claims or parties in the case. Section 13.1.6 discusses separation’s most used form, bifurcation of the liability and damages portions of a trial.

Although separate trials on other matters are not common, separation is widely used in pretrial proceedings though not always so recognized. As previously discussed, courts frequently hold pretrial hearings to determine jurisdiction, venue, joinder, sufficiency of service, and other matters. Although these proceedings are seldom considered separation by the court, most likely because they result in response to a Rule 12(b) or other motion, the functional impact of these typical pretrial activities is to separate and determine the issues.

Federal Rule 42(b) provides that the court, for reasons of convenience, economy, or avoiding prejudice, may order a separate trial of any claim, including counter, cross, and third-party claims. Rule 42(b) also authorizes the court to hold separate trials of “any separate issue.” Separate trials can be used to adjudicate affirmative defenses such as res judicata, statute of limitations, laches, estoppel, waiver, release, and accord and satisfaction. The only specific constraint contained in the rule requires that the court must, in ordering separation, preserve the parties’ right to a jury trial as required by the Seventh Amendment or federal statute.

Many state courts have separate trial procedures patterned after the federal practice. Most states provide for separation of some sort by civil rule, local rule, or statute. Even if not so stated, courts of any jurisdiction probably have inherent authority to separate issues and claims under the appropriate circumstances.

The federal rule granting judges broad discretion to separate actions seems a necessary adjunct to the liberal federal rules regarding joinder of claims and parties. Rule 13(i) specifically authorizes entry of judgment on counterclaims and cross-claims separated under Rule 42(b). These judgments may also be certified final and appealable pursuant to Rule 54(b). Rule 20(b) provides that the court may order separate trials to prevent delay or prejudice when an existing party to an action has no dispute with new parties added by other litigants. Rule 42(b) subsumes Rule 20(b), and the standards and procedure for separation under the rules are the same. Rule 20 permits the court to order separate trials where there has been joinder of a party having no dispute with another party. Rule 42 permits this and other separation whenever it will promote economy or justice.

Here, as with consolidation and severance, judicial discretion is the order of the day. As previously noted, the general spirit of the federal rules favors consolidated adjudication of disputes between the parties and resists piecemeal litigation absent a good reason. A defendant facing one claim in a multi-party and multi-claim suit can often present a compelling case for separation where that claim can be tried and resolved simply much earlier than trial on the whole could occur. After a ruling, the separated claim nevertheless remains interlocutory until the entire action is adjudicated unless certified by the court pursuant to Rule 54(d). In the case posited above, a motion for 54(b) certification by the trial court should probably be granted by the trial court and accepted by the appeals court. And under these facts, a Rule 21 motion to sever the lone claim against Defendant X would also probably succeed, resulting in a new separate action upon which adjudication of the claim would automatically be a final judgment.

Separate trials or hearings, particularly bifurcation, are most frequently used in personal injury cases, but have also been ordered in bankruptcy, contract, trust, and insurance actions. Separate trials are used with some frequency in patent disputes, and patent validity may be tried separately from patent infringement. Where patent issues are a subpart of a commercial dispute, they will often be separated (and tried later if at all possible, by most judges). Where counterclaims, cross-claims, or third-party claims raise issues unrelated to the complaint, these claims may also be tried separately.

Courts can grant separate trials on their own motion and often do so by making bifurcated trials their standard practice. Where a party desires a less common form of separation, a motion is required. Where the motion is denied, the movant may always renew it if unfolding events strengthen the case for separation. The motion for separate trials has no time limits set in the rules. It will usually be timely if made at the final pretrial conference, the time of filing the final pretrial order, or before.

Both the grant and the denial of motions for separate hearings or trials are interlocutory and neither is a final, appealable order. Like other scope motions discussed in this section, separation motions do not frequently satisfy the criteria for immediate collateral order review or trial court certification pursuant to 28 U.S.C.A. § 1292(b). The trial court decision will be upheld unless it was an abuse of discretion.

§ 13.1.6 Bifurcation

Bifurcation of liability and damage issues is the leading use of Federal Rule 42(b). The procedure for moving for and opposing bifurcation is identical to that for all Rule 42(b) motions. Some federal districts make bifurcation the norm in tort actions by local rule, and some judges do this by standing order or personal practice. Most other courts properly view bifurcation as the exception rather than the rule.

Separation of liability and damages in personal injury cases is thought to provide great efficiency and economy since a defense verdict on liability will eliminate the need for a damages trial, cutting total trial time by as much as 50 percent, perhaps more in cases where damages evidence exceeds liability evidence. In addition, some argue that bifurcation promotes clearer jury understanding by reducing the information that the jury must assimilate at any one time and by making possible shorter, less complex jury instructions. Bifurcation is most appropriate where the liability and damages issues are wholly unrelated. The court has broad discretion in deciding whether to bifurcate. On appeal, the decision will be reversed only for an abuse of discretion.

Some, principally the plaintiff’s bar, disfavor bifurcation, noting that defendants are statistically nearly twice as likely to win bifurcated cases. Defense attorneys counter that the statistical evidence of differing results merely illustrates how, in most unbifurcated actions, the plaintiff benefits from sympathy linked to evidence of the severity of the injury rather than to the issues of liability. Furthermore, they note that these same studies show an overall 20 percent time saving from bifurcation.^[2]^ The process is undeniably somewhat pro-defendant but on rare occasion may be preferred by the plaintiff.

Another jury trial issue in bifurcation concerns whether the same jury must hear both the liability and the damages evidence. Courts have held that the use of different juries does not violate the Seventh Amendment. Most courts, however, prefer the use of a single jury to hear both liability and damages, reasoning that the jury knowing precisely how and why the injury occurred is best able to adjudicate damages such as pain and suffering.

§ 13.2 Dismissals

§ 13.2.1 Voluntary Dismissals

At first blush, the concept of a voluntary dismissal seems something of a contradiction for litigation premised on an adversary system. But voluntary dismissals are frequently sought. For example, a plaintiff acting in good faith may conduct discovery and conclude it has no case. Continued prosecution could result in court-imposed penalties for bad faith litigation. More frequently, plaintiff may commence litigation in the wrong jurisdiction or where venue is improper. In such cases, defense counsel may even alert plaintiff to this and request voluntary dismissal as an alternative to the more time-consuming and expensive process of proceeding by motion to dismiss. When litigation arises from an event producing several lawsuits, plaintiff may wish to voluntarily dismiss the case in order to reinstate the action in another forum where it may be more easily consolidated with similar actions.

Voluntary dismissals are not limited to plaintiffs but may be taken by defendants asserting counter, cross, or third-party claims as well. A defendant may want to dismiss a counterclaim filed on a legitimate hunch but subsequently unsupported by the evidence produced in discovery. Or a defendant may seek to dismiss a permissive counterclaim or third-party complaint in the interest of starting a separate action in a more favorable or convenient forum. And, all parties may seek voluntary dismissal, usually with prejudice, as a condition of settlement.

There are essentially two varieties of the motion for voluntary dismissal—voluntary dismissal as a matter of right and voluntary dismissal upon such terms and conditions as the court deems proper.

§ 13.2.2 Voluntary Dismissal as of Right

Under Federal Rule 41(a)(1), plaintiff may unilaterally file a notice of voluntary dismissal and have the action dismissed at any time before service by the adverse party of an answer or a motion for summary judgment. Some states also have a version of Rule 41 that requires plaintiff to file the voluntary notice of dismissal within a specified time period.

Rule 41(a)(1) specifically provides that a party’s right of voluntary dismissal is cut off by service of an answer or summary judgment motion. A motion by the adverse party to dismiss the action because of lack of jurisdiction, improper venue, defective process, or defective service of process does not act to cut off plaintiff’s right to file a notice of voluntary dismissal. Neither does a motion to dismiss for failure to state a claim. The presence of substantial court proceedings prior to an effort to dismiss may cut off a Rule 41(a)(1) voluntary dismissal.

Voluntary dismissal may also occur with the consent of the parties. A plaintiff may automatically obtain dismissal by filing a stipulation of dismissal signed by all parties to the litigation who have appeared in the action. This is a common way settled cases are resolved and terminated.

§ 13.2.3 Voluntary Dismissal by Motion

When a defendant who refuses to stipulate to dismissal has answered or moved for summary judgment, the plaintiff must then make a motion for voluntary dismissal to the court. The court has discretion to deny the motion entirely or condition an order of dismissal upon the terms and conditions that the court believes just under the circumstances of the case. The court may grant a voluntary dismissal motion made in the early or middle stages of the cases and condition dismissal on plaintiff’s payment of all or part of defendant’s costs, attorney’s fees, or expenses.

Rule 41(a)(2) provides that all dismissals granted by the court are without prejudice unless otherwise specified in the court’s order. When the motion to dismiss is made late in the case or is made on the basis of an obviously meritless claim, the court may make the dismissal with prejudice as a condition for granting the motion. Where the plaintiff seeking dismissal would be subject to another sanction were the case adjudicated on the merits, the court may make this additional sanction a condition for granting a motion for dismissal.

Where plaintiff seeks voluntary dismissal by the court and the court sets terms and conditions on the dismissal, the plaintiff has two options: (1) comply with the terms and conditions set by the court and obtain the order of dismissal or (2) continue to prosecute the claim and withdraw the motion for voluntary dismissal. The claimant is under no obligation to accept the court’s conditions and may continue to press forward with the case it once sought to dismiss.

In determining whether to grant a motion for voluntary dismissal, the court will generally consider whether the defendant will suffer real prejudice. The mere fact that plaintiff will gain a tactical advantage from dismissal is generally not a sufficient ground for denying the motion. The court, if it finds significant prejudice, then examines whether the prejudice can be cured by imposition of costs, expenses, fees, or specific orders (e.g., excluding testimony of witness unavailable in subsequent action if first action is dismissed).

In some cases, voluntary dismissal requires court approval even where the parties have agreed or where no answer or summary judgment motion has been interposed. Examples are class actions, cases where a receiver has been appointed, false claims against the United States, or any action where court approval is statutorily required for dismissal.

The court’s discretion to grant a motion for voluntary dismissal is limited where defendant has filed a counterclaim. In these cases, absent stipulation of the parties, dismissal is permitted only if the counterclaim can stand on its own and remain pending for adjudication. If the counterclaim was compulsory, the court has supplementary jurisdiction to let it remain as a separate lawsuit. Where the counterclaim is permissive, there must be an independent basis for jurisdiction. The presence of a counterclaim is not usually a significant bar to voluntary dismissal except in cases where the counterclaim is in the nature of an affirmative defense or a set off claim, or where the permissive counterclaim is based on state law and the parties are non-diverse.

There exists a distinction between a voluntary conditional dismissal and a permanent dismissal regarding continuing jurisdiction of the court. If the parties or the court reserve the right to reopen the litigation and renew consideration of the merits of the case, the action will not by finally concluded until that right terminates.^[3]^ This provision is common when some event or action needs to occur in compliance with the terms of the dismissal agreement and order. A stipulated order of dismissal that grants a court continuing jurisdiction to enforce a settlement agreement is final because the court will not reopen the merits of the dispute but may issue an order compelling performance of the agreement or determining damages of a breach.

When the plaintiff takes a voluntary dismissal of right after having previously taken a voluntary dismissal of right in an action that involved the same claim, the plaintiff’s second voluntary dismissal of right is with prejudice and acts as an adjudication on the merits of the claim. If the plaintiff voluntarily dismisses an action and then reinstitutes the action or a new action that involves the same claim against the same defendant, the court may enter an order providing that plaintiff pay the costs of the action previously dismissed and may stay the proceedings in the second action until plaintiff complies with the order to pay costs. A party that has taken a voluntary dismissal of right through filing a notice of dismissal may withdraw the dismissal provided that there has not been undue delay caused by the change of mind and that the other parties to the action will not be unduly prejudiced by the reinstatement of the claim.

A dismissal order may or may not be immediately appealable depending on its effect. If it results in a final disposition, it is appealable as a final order. If not, it usually is not immediately appealable. A court’s decision is reviewable on appeal according to the “abuse of discretion” standard.

LLMs leveraging legal databases can retrieve and cite relevant authorities, ensuring that motions align with Rule 41(a)(2) and judicial precedent. These tools can also assist in crafting arguments that emphasize the plaintiff’s right to dismiss while minimizing judicial concerns, helping avoid language that could prejudice the client (e.g., future litigation). In cases where courts impose conditions on dismissal, LLMs can suggest alternative terms to increase the likelihood of success.

Beyond legal research, LLMs excel at generating ideas. These tools can generate compelling prejudice arguments, providing fact-specific examples illustrating how denying dismissal would cause substantial harm, such as unnecessary litigation costs, duplicative discovery, or undue burden. They also assist in ideating creative legal strategies by identifying alternative procedural mechanisms, if voluntary dismissal is denied. LLMs can help with crafting and enhancing stronger, more persuasive voluntary dismissal motions and supporting documents while safeguarding client interests.

§ 13.2.4 Dismissal for Failure to Prosecute

Federal Rule 41(b) authorizes dismissal of any action or claim for “failure of the plaintiff to prosecute or to comply with these rules or any order of court.” The rule also authorizes dismissal in a bench trial where the plaintiff has presented evidence but shown no right to relief. Rule 41(b) has been held to codify this inherent power of the court.^[4]^ In addition, many federal courts have local rules setting specific standards for dismissal for want of prosecution.

Rule 41(b) also authorizes dismissal for failure to obey a court order. Rule 37 provides this as a possible sanction for failure to comply with discovery orders and procedures. Since many pretrial orders are discovery orders and because courts have been increasingly willing to impose dismissal as a Rule 37 sanction, this Rule has tended to dwarf this provision of Rule 41(b).

In a sense, the Rule 41(b) motion is a motion seeking termination of the action due to claimant’s post-complaint laches. Where the claimant has permitted the case to stagnate and grow stale, involuntary dismissal is justified. The court’s focus is upon the state of the case at the time the motion is made. A claimant cannot launch into a flurry of activity after lengthy inertness and thereby avoid dismissal. However, the mere passage of time will not automatically eliminate a case. Once properly commenced, a case is either adjudicated or dismissed. Until then, it remains pending. Dismissal requires an order.

The primary basis for dismissal for failure to prosecute is the passage of time without any activity in the case. As previously noted, some local rules provide that whenever there is an absence of any docketed materials in a case for a certain length of time (e.g., 1 year), the matter is dismissed under Rule 41(b), or placed in the suspense file for another specified period of time, and then dismissed. Many of these local rules provide that, upon the absence of activity for the requisite time, the action may be dismissed unless there is prompt activity (e.g., 30 to 90 days) after announcement of the change in case status.

The period of time necessary to justify dismissal for inactivity varies among jurisdictions, with reported cases dismissing actions for as little as a few months of inactivity and others dismissing cases for several years of non-prosecution. Courts should also consider whether the plaintiff has been warned about dismissal. If so and the problem is not corrected, dismissal is appropriate within a comparatively short period after the warning. An additional consideration is the plaintiff’s excuse for delay.

An action can also be dismissed under Rule 41(b) where plaintiff is not ready for trial or refuses to proceed at trial and fails to produce a satisfactory explanation. Failure to appear at a court proceeding such as a hearing or pretrial conference can result in sufficient nonprosecution to warrant dismissal if it is without adequate excuse or part of a pattern of long-standing delay. In these situations, plaintiff has also presumably failed to comply with a court order.

A grant of dismissal, with or without prejudice, is a final, appealable order. A denial of dismissal is not, absent application of the collateral order doctrine or trial court certification pursuant to 28 U.S.C.A. § 1292(b). On appeal, the court will apply the abuse of discretion standard to the trial court decision, but with less deference than usual because procedural dismissals are disfavored while trial on the merits is favored.

§ 13.2.5 Dismissal on Other Grounds

Federal Rule 12(b) provides a comprehensive but not an exhaustive list of grounds for dismissal. Although 2,000 years of Anglo-American jurisprudence (aided by 3,000 years of civil law) have probably enunciated all possible dismissal grounds available, the list may expand or contract according to changes in substantive law, civil rules, social views, and creative legal evolution.

We have already discussed dismissal due to pleading deficiencies (§§ 4.1–4.3), absence of a legal claim in cases of undisputed material facts (§ 4.4), dismissal because of jurisdiction and venue defects (§§ 4.5 and 4.7), non-joinder of parties (§ 4.8), and the failure to obey a discovery order (§ 11.5.2). Rule 41(b) authorizes federal courts to dismiss a claim or case for failure to comply with these civil rules or any court order.

Although other sections of the federal rules (e.g., Rule 37’s sanctions for disobeying a discovery order) have made Rule 41(b) something of a judicial remedy for punishing the renegade litigant, the rule provides an important source of relief.^[5]^ The rule has been applied where litigants refused to produce a witness, clients failed to attend a settlement conference when ordered by the court, a party did not amend a pleading or correct a procedural defect within the time provided by the court, and where counsel has repeatedly violated orders concerning permissible trial conduct. Further, either counsel or the client may also be subject to contempt depending on who actually violates the applicable court order.

§ 13.3 Summary Judgment Motions

§ 13.3.1 Summary Judgment Generally

Frequently made, and often bulging from the girth of evidence, exhibits, and appendices, motions for summary judgment are at once popular and unpopular with judges obligated to read them and decide them. Where successful, the motion shortens proceedings and saves time. Where unsuccessful, it takes time and educates the opposition as well as the court.^[6]^

Unless the motion is granted, clients may be similarly disenchanted because of the excessive cost of making the motion, which ordinarily requires substantial attorney time. But the motion remains popular for a very good reason: when it works, it works quite well, eliminating the time, expense, and uncertainty of trial.^[7]^ Even when summary judgment is denied, parties seeking delay will nevertheless find favor with the motion. It may also be useful to narrow the issues for trial and to “flush out” the adversary’s case even when not otherwise successful.

Summary judgment can be particularly effective for the nontarget defendant in multiparty litigation, for the party mistakenly named in an action, for the party whose liability hinges on resolution of only a legal question, or for a party facing a claim or defense that clearly lacks any factual support. For these parties, the burden of a trial, even if it involves merely sending an attorney to monitor the proceedings, will usually outweigh the burden of presenting a summary judgment motion.

Essentially, a summary judgment motion is an effort to prevail in litigation, or a portion of litigation, where the material facts of the controversy are not in genuine dispute. The motion is therefore available wherever this situation exists. A motion for summary judgment can be made as to any “claim” in the case, including third-party complaints, counterclaims, cross-claims, intervention, and interpleader. Whether to employ the motion depends on the strategic and tactical considerations discussed below.

Although defendants move for summary judgment more frequently than plaintiffs, the motion is equally available to all parties. In most cases, however, plaintiffs must prove at trial the set of facts entitling them to relief. Because plaintiff must shoulder the burden of persuasion, a plaintiff-movant must, in order to prevail, create a record in support of summary judgment that establishes without factual dispute that plaintiff has carried that burden.^[8]^ Ordinarily, this will be difficult if the defendant-nonmovant introduces even a smattering of barely probative opposition matter since the defendant may hide behind the burden of proof as well as its material evidence in opposing the motion. Nonetheless, plaintiffs may obtain summary judgment where the defendant fails to contravene plaintiff’s prima facie proof of its case or where the nature of the dispute generates unquestionable proof from a credible source.^[9]^

When granted, the motion results in a final judgment on the merits, subject to the general rules of claim and issue preclusion and appealability. When denied, the motion does not result in any prejudice to a litigant’s legal or factual position at trial. It does, however, ordinarily bar a second summary judgment motion on the same legal theory in the absence of new factual matter. A movant may bring a second summary judgment motion on a different legal theory.

Federal Rule 56 and a plethora of judicial decisions govern summary judgments. The core substantive factors developed by case law over many decades apply the summary judgment standards. See § 13.3.12. The more current decisions reflect contemporary process holdings. See § 13.3.6.

LLMs can process massive volumes of discovery materials, identifying key facts that strengthen arguments for summary judgment. By analyzing deposition transcripts, interrogatory responses, and documentary evidence, LLM-backed tools can pinpoint the most-relevant facts, categorizing them under the specific elements of each cause of action. This structured approach can help attorneys quickly assess whether a claim or defense is factually supported (or vulnerable). Additionally, LLMs can detect evidentiary gaps that may justify summary judgment, revealing where the opposing party has failed to establish an essential claim element.

Beyond factual organization, LLMs can enhance motion drafting by generating well-structured legal arguments tailored to the jurisdiction’s summary-judgment standards. Depending on the party’s perspective, The LLM can provide either genuine issues of material fact, or lack thereof. In fact, GenAI can quickly classify all agreed-upon facts, as well as all disputed facts. If the LLM has access to a legal database (cases, motions, orders), it can also analyze past rulings to anticipate (and thwart) likely counterarguments. By assessing a judge’s historical summary-judgment rulings, LLMs can help lawyers refine their strategy to align with judicial preferences.

These capabilities of these technologies can allow attorneys to streamline labor-intensive drafting processes, while building stronger, more data-driven summary judgment motions.

§ 13.3.2 No Genuine Fact Dispute

The notion that there can be an absence of disputed fact after commencement of a lawsuit seems initially contradictory to both lawyers and laypersons—but it happens. Notwithstanding Rule 11’s admonition that all claims have evidentiary support (see § 3.5), a plaintiff may file suit on a hunch, hoping to confirm an inkling as to the reasons for some adverse event. When the facts developed in discovery show the hunch to be incorrect, the defendant finds a factual setting appropriate for summary judgment. Often, the heated relations of the parties may lead to litigation, with both sides essentially assuming the correctness of their view of reality. After discovery, uncontested material facts may emerge despite the different stories that led to the lawsuit. Litigation also may occur where, from the beginning, there existed little factual disagreement between parties but a major dispute regarding the legal relief available. In these cases, the litigation seeks resolution of the legal issues rather than factual questions.

A summary judgment provides and protects the rights of all parties to a decision on the merits of all or part of the claims and defenses. Because the court, in deciding a summary judgment motion, ordinarily does not resolve factual issues but merely determines whether there exist disputed genuine issues of material fact, a grant of summary judgment in a jury case does not violate the litigants’ right to jury trial under the Seventh Amendment. In a case to be decided by the judge, summary judgment may be an effective way to proceed depending on the nature of the factual dispute.

Courts have had some difficulty defining precisely what constitutes a genuine factual dispute within the meaning of Rule 56. The U.S. Supreme Court has stated a dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."^[10]^ This language and other statements by the Supreme Court in its controlling trilogy of cases dealing with summary judgment^[11]^ suggest that where the claimant raises a dispute but does not produce supporting evidence sufficient to withstand a motion for judgment as a matter of law made at trial, the court may nevertheless grant summary judgment pursuant to the “genuine dispute” language of Rule 56 without contravening the right to a jury trial.^[12]^

The Supreme Court essentially said that a factual dispute is not “genuine” under Rule 56 where the trial judge finds one side’s supporting evidence so weak as to be insubstantial. There needs to be “substantial” evidence one way or the other to grant or deny a summary judgment. Despite the pronouncements in favor of summary judgment, the Court cautioned that summary judgment not become a trial by affidavit and that “[c]redibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant’s favor."^[13]^

At this point, the intrepid litigator has a right to ask: What exactly are judges allowed to do in deciding a summary judgment motion? Trial courts vary in the degree to which they are aggressive or reluctant in granting summary judgment.^[14]^ Federal courts and many state courts have been more aggressive in the aftermath of the U.S. Supreme Court’s off-cited trilogy of cases endorsing the greater use of summary judgment and this approach presently continues.

Some courts apply caution and have found a genuine factual dispute to exist whenever the nonmovant has created a record of controverted fact questions. Other courts have been so aggressive in granting summary judgment that their decisions appear to be crediting or discounting contested evidence, a task that—at least officially in our system—is for the jury. Where trial courts granted summary judgment because they did too much weighing of the evidence, appellate courts have tended to remember the admonition that assessments of credibility are for the jury and have denied or reversed summary judgment. Almost all courts recognize that summary judgment is appropriate in cases where either the veracity of the controverting matter is highly suspect or where the evidence is too weak to support a claim. These cases support a widespread judicial agreement that the nonmovant’s support is but an insubstantial scintilla.

LLMs can help attorneys determine whether a genuine factual dispute exists by analyzing all produced documents, deposition transcripts, interrogatories, and affidavits for inconsistencies. After detecting weaknesses in the opposing party’s evidence, GenAI can summarize and cite genuine factual issues (or lack thereof) that support (or oppose) summary judgment. LLMs can identify and develop arguments regarding whether the nonmovant’s factual support meets the “substantial evidence” threshold or falls short. Additionally, LLMs that are connected to cases, motions, and orders can identify past rulings where courts have rejected similarly weak or speculative evidence.

Beyond factual analyses, LLMs can tailor summary judgment motions to your strengths, and the other side’s weaknesses. For example, GenAI can highlight and describe how affidavits and declarations lack factual specificity, they can craft factual dispute or existence-of-evidence arguments, including cross-referencing and analogizing similar cases. By reviewing a judge’s prior decisions and aligning with them, lawyers can adapt their arguments with their judge’s tendencies. “Your honor, these facts are just like the case you decided last week.”

§ 13.3.3 Material Facts

Substantial evidence in the record needs to provide support for the denial or granting of summary judgment. Lawyers opposing summary judgment can argue that they have submitted substantial evidence that would support a reasonable jury verdict in favor of their client. Attorneys seeking summary judgment can argue that the nonmovant’s submissions, although creating a fact dispute, are insufficient to sustain a favorable jury verdict, particularly where the nonmovant bears the burden of persuasion.

One useful approach for counsel focuses on whether any factual conflicts are truly material to the case. A material fact is one whose resolution will affect the outcome of the case, one that is central to an element of a claim or defense. Tangential disputes do not preclude summary judgment. For example, two automobile accident litigants may argue over a vehicle’s speed. However, where the liability claim rests on defendant’s admitted running of a red light, at least a partial summary judgment on negligence is available. Notwithstanding this, a court may deny summary judgment if it believes trial resolution of the speed issue is required for apportionment of negligence, determination of causation, or damages calculation so long as the court finds the determinations better and more efficiently done through trial of all issues together.

A related issue concerns the nature of the evidence. Where the evidentiary and factual conflict is direct, summary judgment must be denied absent the rare instance where the court may disbelieve a witness or source. For example, where the plaintiff in an automobile accident case swears the stoplight was green in his favor while the defendant claims it was green in her favor, they have presented conflicting direct evidence, making summary judgment unavailable.

Many cases, of course, are fought over circumstantial evidence—evidence that allows a fact finder to draw two or more reasonable conclusions and does not compel a particular conclusion. Cases suggest that courts might have more freedom to find a nonmovant’s evidence insufficiently substantial where it is exclusively circumstantial.^[15]^ The theory behind this reasoning posits that a judge may find some inferences from weak circumstantial evidence too implausible to sustain a reasonable jury’s verdict. Although the distinction between circumstantial and direct evidence is not always clear and obvious, it is often tangible enough to be used by counsel.

LLMs can help distinguish between material and immaterial facts. For example, GenAI, can analyze pleadings, discovery responses, and deposition transcripts in light of existing law regarding the elements of a claim—identifying which facts are central to a claim or defense and which are merely tangential. This aid enhances the assessment of counsel.

GenAI can also help craft stronger arguments, flagging disputes that, while contested, do not affect the legal outcome. Additionally, by placing evidence atop relevant legal standards, LLM-backed tools can assess whether a fact is essential to proving or disproving an element of a claim. And, it can identify precedent where courts have ruled similar fact disputes as immaterial (or material). Lastly, GenAI can strengthen motion drafting and rebuttal strategies by identifying gaps in the opposing party’s claims and elements, as identified by caselaw.

At its core, all litigation involves taking legal claims (e.g., breach of contract, medical malpractice), breaking them into their required elements, and placing facts into each element’s “evidentiary bucket.” For example, to establish a breach of contract, a plaintiff must show that: (1) a valid contract existed, (2) defendant failed to perform, (3) plaintiff performed (or plaintiff’s nonperformance was excused), and (4) plaintiff suffered damages. At the summary judgment stage, each party must demonstrate that each of these elements has supporting evidence—material facts—or that they don’t. If even one element lacks evidentiary support, then the claim fails as a matter of law.

GenAI can assist in this process by systematically sorting facts into the required legal elements, identifying evidentiary gaps (empty elemental buckets), and helping attorneys determine whether a genuine issue of material fact exists. By efficiently finding evidentiary sources, LLMs can streamline summary judgment analysis, ensuring that attorneys focus on only the material facts that fill (or fail to fill) evidentiary buckets.

§ 13.3.4 Strategy and Tactics

There is no absolute formula for determining whether to move for summary judgment. As an assessment, counsel considering the motion should at least ask the following questions (perhaps with the aid of AI):

• Do the uncontested facts favor my client? By how much?
• Are they as uncontested as I think?
• If they are contested, can the court be convinced to view the contravening matter as merely a scintilla of evidence?
• Even if the opposing matter likely to be offered by the nonmovant is substantial, can it be characterized as sufficiently off-point to be deemed “immaterial” under Rule 56?
• Will trial make the facts more favorable to my client? By how much?
• Does the law favor me? By how much? Is it well-settled law or debatable law?
• Who is the judge? Is this a jury case?
• Am I currently in a good or bad strategic situation?
• Will passing time improve or detract from our position?
• What is the likely result of the motion?
• What effect will this likely result have on the case?

In determining whether to make a motion for summary judgment, the attorney should first consider the client’s position in the case. If the client is the likely winner at trial or the clear favorite in the early going, summary judgment is more attractive. If the client is the underdog, a motion may only hasten defeat.

Attorneys must also consider the nature of the issues and the timing of the case. Summary judgment is most useful where the dispute is legal rather than factual. The party seeking relief will generally want to move the litigation along. In jurisdictions where motions languish, making the motion may actually delay the ultimate decision. Depending on the case and the court, this may or may not argue for making a summary judgment motion.^[16]^

Attorneys should also consider whether a judge or a jury will be the fact finder. Summary judgment motions can be effective in educating the court about the case, especially in a bench trial. However, a motion made and lost before the court may only prejudice the judge against asserted facts and legal arguments at trial. In jury cases, many lawyers continue to see summary judgment as a useful means of educating the court in hopes of getting more favorable (or at least better reasoned) rulings on other pretrial matters such as joinder of claims and parties, discovery disputes, and evidence rulings. Although this conventional wisdom may well be correct, we have reservations about the “educational” summary judgment motion. Where the motion is only educational and the movant does not have a realistic chance of success, making the motion may violate Rule 11 and ethical standards of motion practice.

Where the motion is meritorious but is sufficiently unlikely to succeed, counsel should seriously consider whether the costs of the motion (counsel fees and distraction, transaction costs in assembling information, possible delay, revelation of trial argument tactics) outweigh the benefits of a more educated judge. A well-done pretrial order or trial brief may be a better tool for educating the court. In addition, counsel may use summary judgment in jury cases to remove at least some inflammatory or embarrassing aspect of the case from the jury’s consideration. Where the client benefits from the jury’s consideration of all the facts, it makes sense to keep these issues in the case through trial, even where one could prevail on these points in a partial summary judgment motion (discussed in § 13.3.14).

If the bulk of legal authority weighs in your favor, you will more likely want to move for summary judgment. Where you are advancing a novel legal theory, one with little case support or based on the minority, but arguably better, rule, you will probably want to refrain from seeking summary judgment unless the time and expense of trial make an early loss preferable to a later loss. Those pushing the bounds of the law will ordinarily have better success where the underlying facts prompt empathy from the court, providing a reason to go the extra doctrinal mile in their favor.

Unless facts are both undisputed and overwhelmingly in your favor, the cold summary judgment record may not help as much as the technicolor trial. There are exceptions to this approach. If assigned a judge who is likely to be receptive to unsettled legal arguments, or where the legal position is more sympathetic in the abstract than are the underlying facts, a summary judgment motion may actually be the better path for the legal trailblazer.

Modern LLMs can think step by step, much like a lawyer would. Humans often rely on two thinking systems: intuition (System 1 thinking) and deliberate reasoning (System 2 thinking).^[17]^ LLMs can readily provide System 2* *thinking—analytical and logical reasoning that carefully works through legal arguments. Unlike traditional legal research tools that retrieve cases, GenAI can reason through the application of law to facts, mirroring the way counsel can strategize a summary judgment motion.

Increasingly, LLMs apply legal principles to case-specific facts, highlighting the strengths and weaknesses of different arguments. But unlike a single attorney, LLMs have access to the entire corpus of cases, statutes, and regulations—including yesterday’s case. Think of GenAI as the lawyer down the hall—the smartest lawyer you’ve ever met—who also happens to have read every case (and is available at all times) to refine arguments, pressure-test reasoning, and suggest alternative legal strategies. Instead of working through summary judgment issues alone, you can now leverage LLM-backed colleagues to simulate arguments, anticipate opposing positions, and refine motions for maximum persuasiveness.

LLMs can also assist in evaluating whether the uncontested facts truly favor a party’s position—and by how much. These tools can compare a case’s facts to past rulings (perhaps even by the assigned judge), highlighting where similar facts have led to summary judgment (or its denial). LLMs can also determine whether the nonmovant’s factual disputes are material under Rule 56 or merely tangential. By providing deep legal analysis, GenAI can allow attorneys to model different strategic outcomes based on historical summary judgment rulings. Lawyers no longer have to reason through summary judgment strategy in isolation; LLMs provide an always-available, highly informed second opinion that can refine their arguments, increasing their chances of success.

§ 13.3.5 Summary Judgment Timing

Summary judgment may be brought at any time appropriate in a case. Often it is pursued after discovery and before trial. Fed. R. Civ. P. 56(b) permits a claimant (either the plaintiff or any other party claiming a right to relief in any other pleading) to move for summary judgment at any time “until 30 days after the close of all discovery” unless a different deadline is set by court order or local rule. Realistically, however, a party aiming for summary judgment ordinarily waits until at least initial discovery is completed, although it is available at the early stage of a case.

If the motion is made early, it will have to be good. If the legal position for a defending party is that good, a motion to dismiss under Rule 12(b)(6) for failure to state a claim may be available. If it is, it should be made before conducting discovery. When, however, an affidavit from a party or witness resolves a factual matter, counsel prefer the early summary judgment over the motion to dismiss. Some attorneys have the bad habit of moving to dismiss when they should be patient, gather facts, and then seek summary judgment. Others are apt to bring a motion for summary judgment, arguments and affidavits (and supporting discovery) blazing, when their prime argument attacks the opponent’s legal claim. Both extremes should be avoided.

No judge grants early summary judgment where it appears that the movant seeks to stampede the opposing party. The competent opponent of the premature summary judgment motion will either seek time for discovery, as allowed by Fed. R. Civ. P. 56(d), or will have a client or witness submit affidavits establishing genuine issues of material facts. Bringing the motion prematurely may result in both denial of the motion and also a cooler reception to subsequent motions and at the trial. Also, as previously noted, denial of a summary judgment motion will foreclose a second summary judgment motion on the same legal theory.

Those wishing to interpose an affidavit precluding summary judgment are less able to employ clever phrasing and half-truths when faced with carefully drafted interrogatories, requests to admit, or a transcript of a well-conducted deposition.^[18]^ As a general rule, counsel should conduct some discovery before moving for summary judgment. A movant need not permit protracted discovery once there is enough information to support the motion. Thereafter, the timing of the summary judgment motion becomes subject to the complicated matrix of factors that affect the decision of whether to make the motion.

Seeking summary judgment should be done far enough in advance of trial that the court may fully consider the motion without being tempted to deny the motion because of a nearby trial date. Summary judgment motions made on the eve of trial without good reason for the delay may be denied and serve only to increase the cost of the litigation. A late summary judgment motion that is a sure winner can be brought near or on the trial date if it disposes of the need for the trial and if the timing rules permit such a last minute submission.

§ 13.3.6 Summary Judgment Procedure

The process by which the court considers and decides summary judgment motions is a matter of federal law. A court’s consideration of a summary judgment motion, including the court’s determination as to the existence of a material factual dispute, is procedural rather than substantive.^[19]^ In diversity jurisdiction cases, the definition of what constitutes a material fact is a question of state substantive law. In some state court proceedings, summary judgment may be a two-edged sword permitting the entry of judgment against the moving party even if no cross-motion for summary judgment is filed.

It is generally recognized that the filing of a summary judgment motion, like the filing of a Rule 12 motion to dismiss, tolls the time for answering. Both claimants and those defending claims must serve their summary judgment motions at least ten days prior to any hearing or oral argument held on the motion. Where a hearing is scheduled, a party opposing summary judgment has historically had until the day before the hearing to serve opposing affidavits. In many federal district courts, local rules require that a party opposing a summary judgment motion, or any motion, serve a responsive brief and affidavits within a specified period of time (usually ten to twenty days) or the motion is treated as uncontested.

These local rules or standing orders may well be inconsistent with Rule 56 procedures and case law that make it clear that summary judgment cannot be granted merely because the motion is uncontested or inadequately contested. The court must still satisfy itself that there is no genuine dispute of material fact and that the movant is entitled to judgment as a matter of law on the basis of indisputable material facts. Summary judgment cannot be granted merely because a party’s counsel does a poor job opposing the motion.

A hearing on a summary judgment motion is discretionary with the court. As matter of custom and practice, federal courts almost always hold oral argument on summary judgment motions, particularly if there is any realistic possibility that the motion will be granted. Oral testimony may be heard to resolve a particular factual dispute where all other material facts are agreed upon. In state court proceedings, hearings and oral arguments are almost always held. If necessary, counsel can seek an extension of time to fully prepare for a hearing and argument.

Rule 12(b)(6) provides that a motion to dismiss accompanied by affidavits or other evidentiary supporting papers must be treated as a motion for summary judgment. If the court converts the Rule 12 motion to a summary judgment motion, it must give the parties notice and an opportunity to be heard. Adequate notice must also be provided if the court on its own considers summary judgment. Notice is required by due process considerations because a grant of summary judgment is an adjudication on the merits.

§ 13.3.7 Supporting Evidence

Fed. R. Civ. P. 56(c) requires that the movant asserting no genuinely disputable facts and the nonmovant asserting the existence of factual disputes must support their factual positions. Specifically, Rule 56(c)(1) provides that the parties may support their positions by:

1. citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
2. showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support a material fact.^[20]^

The better way to provide this necessary information is to submit relevant evidence and exhibits and attach as appendices to the motion those portions of the case on which the movant relies. Facts must be introduced that lay the proper foundation for the evidence and exhibits and that establish admissibility. The court may be asked to take judicial notice of a fact just as the court may take judicial notice at trial pursuant to Fed. R. Evid. 202. All this makes the motion easier for the court to consider, and courts always enjoy having their existence made easier. Only those materials the court needs to consider should be submitted

Attorneys need to pay sufficient attention to the successful use and presentation of supporting evidence. As a general rule, relying on an affidavit is less effective than relying on a pleading, answer, admission, or deposition. Because these documents may be used at trial, they receive greater trust. An affidavit, although rebuttable, is not subject to challenge by cross-examination. Unlike judicial admissions or helpful deposition testimony from an opponent or nonparty, affidavits have a self-serving quality about them. An affidavit laying the foundation for documentary evidence may be sufficiently persuasive. Certainly, an uncontroverted affidavit is of significant persuasive force, especially if the affiant is a disinterested witness.

The facts set forth in an affidavit need not be in admissible form but must be reflect that they are capable of being presented in admissible form at trial.^[21]^ For example, statements in a letter, if offered for their truth, are hearsay (out-of-court statements and not sworn testimony). But if the author of the letter can be proffered as a witness at trial, putting the statement in the admissible form of live testimony, this may be sufficient.^[22]^ As a contrary example, statements by an expert who will not be permitted to testify at trial cannot be considered in granting or denying summary judgment.^[23]^

The Supreme Court has confirmed that a party seeking summary judgment need not submit supporting materials if it can demonstrate that the nonmovant claimant bearing the burden of proof has failed to proffer sufficient evidence supporting each element of its claim.^[24]^ In these circumstances, the movant’s showing of an absence of proof supporting the claims triggers the burden set forth in Rule 56(e) that the claimant introduce specific materials facts showing that a genuine issue exists for trial.

The movant should articulate for the court the elements that claimant must prove to prevail and then point out the absence of any evidence supporting claimant. Similarly, the movant can trigger the nonmovant’s burden of response by pointing to the existence of evidence contradicting necessary elements of the claim. For example, if a plaintiff must prove permanent physical injury, defendant satisfies its summary judgment production burden by noting that plaintiff’s deposition either fails to claim such injury under apt questioning or in fact disavows permanent injury. Where the deposition is merely silent, the nonmovant plaintiff would presumably place this fact in sufficient dispute by submitting an affidavit claiming such injury, so long as the affidavit does not expressly contradict other testimony.^[25]^

Determining when a movant has discharged the burden of production can be relatively easy but ultimately presents a delicate question of balancing the legitimate interests of claimants and respondents. If the court makes it too easy for a summary judgment movant to discharge the burden of requiring the claimant to respond pursuant to Rule 56(c), the movant can at low cost require the nonmovant to expend substantial pretrial time, expense, and energy proving up its case through compilation of affidavits and additional depositions. On the other hand, requiring the defendant to depose what are rightfully plaintiff’s witnesses in order to discharge the burden will in most cases make it too easy for plaintiffs to exert significant coercive settlement pressure on defendants because of the cost of making a summary judgment motion that still may be negated by plaintiff’s counter-submissions.

Trial courts and litigators are probably best guided by a common sense of fairness. Where the defendant notes absence of evidence supporting an essential element of plaintiff’s case, plaintiff should ordinarily be required to produce evidence that is available to it without undue hardship or expense in order to avoid summary judgment. Where, however, the defendant has ready access to information concerning an element of the claim, it is not unreasonable to require a defendant to offer this evidence in order to discharge its initial summary judgment burden. Rule 56 is designed to make it clear that both movants and nonmovants should support their position with specific facts of record and present to the trial court a full view of the materials relevant to the summary judgment decision.

§ 13.3.8 Affidavits and Declarations

Fed. R. Civ. P. 56(c)(4) requires that affidavits or declarations submitted in connection with a summary judgment motion must be made on personal knowledge and set forth facts “that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated.” Thus, an affidavit will not be sufficient, either for supporting summary judgment or opposing it, if the affidavit is conclusory or merely restates the party’s pleadings.^[26]^ Affidavits cannot establish a case through inadmissible hearsay, speculation, or the party’s “common-sense” explanation of what happened.^[27]^ A deficient affidavit may be ignored by the court and will be ineffective to put facts at issue. Affidavits must possess some probative value.^[28]^ In addition, affidavits may not be used to contradict the affiant’s deposition testimony in order to create an issue of material fact, although they may explain or supplement a deposition statement.^[29]^

As a matter of drafting, it may be sufficient for the affiant to state “I make this affidavit of my own personal knowledge.” But it will be much less likely to be viewed as deficient if it explains how the affiant has that knowledge. “The light was red” might suffice; “I was present at the intersection waiting for a bus, and could see the lights facing both Grand Avenue and Maple Street, and the black Prius driven by the defendant was clearly facing a red light when he drove into the intersection” is a much more adequate statement of fact.

Frequently, the party preparing affidavits assumes facts to be uncontested and therefore proven. Even if some unstated facts in the affidavits but necessary for judgment are uncontested, the court cannot, consider these facts until they are proven. Affidavits must therefore set forth all facts necessary to support the factual conclusions contained in them. Frequently, an affidavit implicitly relies on an admitted or unrebutted averment in the pleadings as proof of that fact. A better procedure is to refer explicitly to this portion of the pleadings and to attach a copy of the pleadings to the affidavit as an exhibit.

Parties frequently seek to rely on documents affixed to the summary judgment motion as appendices. Unfortunately, such documents, unless already part of the record or submitted to the court, cannot be considered unless incorporated by reference in an affidavit and attached to the affidavit as exhibits. Attorneys often overlook this important rule and refer to documents but neglect to make them admissible by attaching them to a foundation-laying affidavit.

Where the nonmovant fails to establish a genuine dispute requiring trial, that party may seek leave of court in order to permit discovery or additional time for taking affidavits in opposition to the motion. Rule 56(d) provides that when facts are “unavailable to the nonmovant,” the nonmovant may ask the court to:

• Defer considering the motion or deny it,
• Allow time to obtain affidavits or declarations or to take discovery, or
• issue any other appropriate order.^[30]^

However, the nonmovant must first show by affidavit or declaration that “it cannot present facts essential to justify its opposition.” See Rule 56(d). Nonmovants in this position should seek a stay as soon as possible and act quickly to obtain the necessary materials to oppose the motion as required by Fed. R. Civ. P. 56(c) so that the court will not suspect an attempt to merely delay the inevitable. The party seeking this stay must specifically allege the additional information to be discovered that will create disputed issues of material facts. It is not enough for the party merely to allege there might be some facts “out there someplace” that may create a dispute.

Where it appears to the court that affidavits have been made in bad faith or solely for the purpose of delay, the court may, pursuant to Fed. R. Civ. P. 56(h), require the party presenting such affidavits to pay the other side’s reasonable expenses, including attorney’s fees, incurred as a result of the bad faith or delay-causing affidavits. The court may also assess incidental and consequential damages resulting from the improper affidavits or may also hold the offending party or attorney in contempt. In practice, courts have traditionally been reluctant to impose the sanctions of this rule and have, when faced with dishonest affidavits, disregarded them and decided the summary judgment motion in favor of the opposing party. Only in egregious cases have the courts invoked Fed. R. Civ. P. 56(h) to impose sanctions.

LLMs can assist attorneys in drafting affidavits and declarations that satisfy Rule 56. When analyzing draft affidavits, GenAI can flag conclusory statements, speculative assertions, or hearsay that could render the affidavit inadmissible. Additionally, LLM-backed tools can suggest revisions that clarify the affiant’s personal knowledge, ensuring that factual assertions are properly supported. If the LLM is connected to a legal database, then it can compare draft affidavits to successful examples from prior cases, recommending refinements that enhance clarity, precision, and evidentiary weight. GenAI-backed tools can also verify that affidavits align with earlier deposition testimony and pleadings, reducing the risk of contradictions that might undermine the affiant’s credibility.

Beyond drafting, LLMs can help attorneys ensure that affidavits comply with procedural requirements, reducing the risk of evidentiary exclusion. For nonmovants seeking additional time, GenAI can generate affidavits that persuasively explain why key facts remain unavailable and what discovery is necessary to create a genuine issue of material fact. Additionally, LLMs can analyze opposing-party affidavits to detect inconsistencies and contradictions. In short, GenAI-backed tools can place facts into affidavits and declarations that are both structurally sound and legally sound.

§ 13.3.9 Opposing Summary Judgment

After being served with a summary judgment motion and supporting papers establishing facts entitling the moving party to judgment, the nonmovant cannot merely deny the contents of the moving party’s affidavits, properly incorporated documents, pleadings, or other materials. Fed. R. Civ. P. 56 requires the opposing party to set forth specific facts showing that there is a genuine issue for trial. Rule 56 requires the party opposing summary judgment to produce some admissible evidence that, even if unlikely or unpersuasive, shows a dispute requiring resolution by trial and is not so weak or unpersuasive that it would not withstand a motion for judgment as a matter of law. Even an affidavit by a party, an obviously self-interested person, is sufficient if it meets the requirements of Rule 56(c)(4) (i.e., is based on personal knowledge and is not in sham contradiction of a deposition).

The court does not generally consider credibility in deciding a motion for summary judgment. If the affidavits would require the court to weigh the facts on any issue properly raised in the motion documents, a genuine issue of fact exists. If that fact is material under the applicable law, the court will deny summary judgment. Section 13.3.2 dealt with the sometimes-thorny question of what constitutes a genuine factual dispute.

Courts disregard a party’s sworn testimony by affidavit (or a declaration under penalty of perjury) only where the facts are unbelievable to any reasonable person. Usually this requires that the affidavit’s statement be refuted by undeniable objective evidence. For example, an affiant who adamantly swore that he could see the late afternoon accident to the east of his house while he watched the sunset could be disbelieved by the judge despite the volumes of case reports stressing that credibility issues are for the jury (although better practice would support giving the witness a chance to explain the sunset problem, particularly if the rest of the testimony were not suspect). In the somewhat rare cases where the court finds that the affidavit contains false testimony, the court is entitled, as is any fact finder, to disregard the entire evidence of that witness.

LLMs can help develop counterarguments to defeat summary judgment, identifying movant’s weaknesses and reframing the evidence to highlight genuine disputes of material fact. When analyzing the motion and supporting documents, GenAI can detect areas where the movant mischaracterizes evidence, fails to meet the burden of proof, or overlooks key factual nuances.

GenAI can identify evidentiary gaps, highlighting areas where factual assertions are unsupported or contradicted. LLMs can also suggest alternative interpretations of the evidence that favor the nonmovant, ensuring that courts recognize disputes that require resolution at trial. Additionally, GenAI can help structure arguments that emphasize how even circumstantial or seemingly weak evidence may be legally sufficient to withstand summary judgment.

Additionally, LLMs can help anticipate and address the movant’s potential rebuttal counterarguments. Where credibility is at issue, GenAI can flag inconsistencies in the movant’s submissions and suggest ways to challenge their reliability without violating summary judgment principles. As such, these tools can draft responses that effectively weave factual disputes, procedural rules, and legal reasoning into a compelling narrative to deny summary judgment.

§ 13.3.10 Continuance

A party opposing summary judgment may ask the court to defer ruling on the motion for a reasonable time so that the party may conduct discovery or obtain opposing affidavits. Fed. R. Civ. P. 56(d) permits such a continuance where the opposing party can articulate reasons for the absence of the essential materials. On occasion, key potential affiants may be temporarily unavailable. Where the summary judgment motion has been made early in the case, supported most commonly by affidavits of the moving party, the opposing party should be accorded a reasonable opportunity to conduct discovery.^[31]^

§ 13.3.11 Cross-Motions for

Summary Judgment

Frequently, the party opposing a summary judgment motion agrees with the opponent regarding the absence of any disputed material facts but opposes the motion on legal grounds. A party in this situation may make a cross-motion for summary judgment. This motion agrees that no genuine issue of material fact exists but argues that the applicable law requires entry of judgment against, rather than in favor of, the initial movant. Although there is inherent court authority to enter summary judgment against the moving party, federal courts generally grant summary judgment only after a party expressly seeks it and only after the court, if acting on its own motion, gives notice to the parties as required by Rule 56(f).^[32]^

§ 13.3.12 Standard for Summary Judgment

Fed. R. Civ. P. 56(a) establishes the standard for granting summary judgment. It is a relatively straightforward two-prong test: (1) does the record show the absence of any genuine material factual dispute and (2) on the basis of the undisputed facts does the law entitle the moving party to relief? Previous sections described the scope and extent of these factors.

Most courts will find the existence of a sufficiently genuine dispute of material fact whenever the nonmovant has offered any probative evidence on the point. The party bearing the burden has a significant obligation under Rule 56(c) to submit evidentiary matter that tends to prove the claim.^[33]^ Since most summary judgment motions are made by defendants against plaintiffs (who bear the burden of persuasion), the parties need to comply with their respective obligations.

Not every disputed fact is a material fact sufficient to prevent a summary judgment. A fact is material if it is “outcome determinative” under the applicable law, that is, if its existence in a case will have some impact in deciding the facts of the case. Inferences that may be drawn from a set of facts will be sufficient to create disputed material facts. All inferences to be drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion and the record must reveal that the opposing party would not prevail under any discernible circumstances.

Disputed facts must be specifically established and conclusive assertions of ultimate facts will usually be insufficient to create material facts. Judges deciding summary judgment motions generally try to avoid weighing the quality of the conflicting evidence. In some cases, courts will grant summary judgment where material facts conflict on the ground that the nonmovant’s facts are so woefully nonprobative as to constitute merely a scintilla of evidentiary support.

The language of Rule 56(a) appears mandatory in that it states that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” This command is less overpowering than the language would suggest. Although a court would ordinarily abuse its discretion in denying a summary judgment motion that clearly satisfied the rule, trial courts have significant discretion to deny the motion “even if the movant otherwise successfully carries its burden of proof if the judge has doubt as to the wisdom of terminating the case before a full trial."^[34]^

Of course, many, if not most, motions fall between the clearly justified and the baseless. In most cases, the bulk of facts are undisputed, but some are hotly contested. Whether the disputed facts are material and whether the dispute is “genuine” lie within the eye of the beholding court. Consequently, courts as a practical matter have broad discretion in determining the contested nature of facts^[35]^ and may almost always justify denying summary judgment to permit those facts to be more clearly established at trial.

Similarly, a court is presumably able to determine the law in every case. Consequently, a court may not deny summary judgment merely because the legal issues are complex. However, the court may deny summary judgment where further factual development may make some legal determinations unnecessary.^[36]^ Thus, despite the “shall be rendered” language of Fed. R. Civ. P. 56(a), the real inquiry by the court more likely asks: (1) Can I grant the motion? (2) Do I want to? (3) Or would waiting for trial be worthwhile? Some courts, taking comfort in jury determinations or the likelihood of settlement prior to trial, find denying summary judgment the safer and therefore wiser course. Court congestion and new prevailing schools of judicial thought are changing this attitude but have not eradicated it. The party seeking summary judgment should therefore emphasize the relative irreversibility of the judgment sought.

As a practical matter, summary judgment is relatively rare in certain types of cases. For example, in negligence, fraud, civil rights, and antitrust cases, summary judgment will be rare because the issues are often inherently factual in nature and require examination of motive, intent, and care. These issues do not usually come undisputed. Summary judgment can be fairly common in cases involving disputed contracts or property where facts are uncontested and the dispute centers around the legal construction of the facts. For example, the Supreme Court has been willing to grant summary judgments bestowing qualified immunity on law enforcement officials in cases alleging excessive force even where lower courts have considered the question of excessiveness one of fact.^[37]^ Although summary judgment on the merits in negligence cases is rare, summary judgment on their jurisdictional issues is more common (e.g., are the wrongful acts of Boola-Boola College “state action?”).

For many years, the traditional view held summary judgment rarely available in large, complex cases. This view, an ideological relative of the view that summary judgment cannot be granted where any doubt exists, has fallen from favor. Nevertheless, the complexity of “big” cases and their abundant factual records make summary judgment still difficult to obtain, although not for any different standard.^[38]^ In some instances, the very bigness of cases, which promise protracted trial, may provide a legal realist incentive for judges to give great consideration to summary judgment. In addition, doctrine particular to the case (e.g., qualified immunity for constitutional defendants, particular requirements of antitrust or intellectual property law) may facilitate summary judgment.

LLMs can help attorneys distinguish material facts from irrelevant details. By analyzing case law, comparing fact patterns, and determining whether a dispute affects the case’s outcome. GenAI can also assesses whether an opposing party’s evidence carries enough weight to create a genuine issue or merely offers an insufficient “scintilla” of support.

If the LLM can access legal databases (e.g., cases, motions, orders), the GenAI can use that historical data to anticipate judicial discretion, factoring in case complexity, judge-specific tendencies, and legal doctrines (e.g., qualified immunity). By refining arguments to match the case’s legal and factual landscape, LLMs can strengthen summary judgment strategies and improve a motion’s chances of success.

§ 13.3.13 Burden of Persuasion

The Supreme Court has held that a court, in ruling on a summary judgment motion, should consider the substantive burden of persuasion that would be in effect at trial.^[39]^ Although the Court acknowledged that this could not be done with great precision, it suggested that rulings on a summary judgment be “filtered through the prism” of the substantive burden of persuasion at trial. For example, if a public figure plaintiff seeks to recover for defamation, the plaintiff must prove actual malice (knowing falsity or reckless disregard of the truth) by the defendant with clear and convincing evidence. Therefore, if the defendant moves for summary judgment, the plaintiff must under Rule 56(c) not only introduce some specific facts tending to satisfy each element of a defamation claim but also must submit sufficiently weighty evidence to enable a reasonable fact finder to conclude that plaintiff has shown defamation by clear and convincing evidence rather than by a mere preponderance of evidence.

This charge to trial courts is admittedly slippery. What constitutes clear and convincing proof is itself idiosyncratic. When a judge seeks to determine what a fact finder in another context might deem to be sufficient to shoulder the clear and convincing burden, the process is a step or two further attenuated. At a minimum, judges seeking to import the substantive trial burden of proof into the pretrial summary judgment standard must do at least a modicum of assessment of the persuasive impact of the nonmovant’s evidence. Fortunately, most civil actions are subject to a preponderance of the evidence standard. In a typical case the court will examine the plaintiff-nonmovant’s submissions to determine whether there is a significant quantum of material evidence in its favor. If so, summary judgment will be denied.

Occasionally, a more aggressive district court may hold that a discernible amount of evidence is nonetheless too small to support a reasonable jury’s verdict. In that small class of cases where plaintiff must demonstrate a right to relief by clear and convincing evidence—defamation, fraud, punitive damages claims—courts have more discretion to treat nonmovant’s submissions as too insubstantial to resist summary judgment. Since these claims are also disfavored by the law, courts may be inclined to more frequently grant summary judgment for these defendants.

§ 13.3.14 Appealability and Review

A grant of summary judgment results in entry of a final judgment on the merits. Accordingly, a grant is immediately appealable as a final order under 28 U.S.C.A. § 1291(a) if it terminates the litigation. Denial of a motion for summary judgment is not a final order and can be appealed only where it fits an exception to the final order rule or is certified for immediate appeal by the court pursuant to 28 U.S.C.A. § 1292(b).

Although Rule 56 is available for seeking of summary judgment as to all “claims” in an action and may therefore be used in connections with third-party claims, cross-claims, and similar proceedings, summary judgment is final only when it completely resolves the litigation. Where summary judgment is granted as to some claims or parties in multiclaim or multiparty litigation, the order will not be appealable. If the court determines that there is no just reason for delay and directs the immediate entry of judgment, the order will be viewed as a final order under Fed. R. Civ. P. 54(b), provided the appellate court accepts the trial court’s certification.

On appeal, the court’s review of a grant of summary judgment is “plenary” or de novo as to legal questions. All reasonable factual inferences will be made in favor of the nonmoving party. The procedures imposed on the parties by the trial court are subject to an abuse of discretion standard. The appellate court’s review of the trial court’s determination of the existence of factual disputes, being a legal question or a mixed question of law and fact, is subject to de novo review. However, as a practical matter, the reviewing court will usually grant more deference to the trial judge in this area than it will regarding the legal question of whether the moving party is entitled to judgment. The reviewing court may also affirm the grant or denial of summary judgment on grounds different from those of the district court.

§ 13.3.15 Partial Summary Judgment

Rule 56 provides that both claimants and those defending claims may move for summary judgment in their favor on all or part of any claim, counterclaim, or cross-claim affecting them in an action. Rule 56 permits summary judgment to be entered on liability alone even where there remains a genuine dispute as to the amount of damages. The broad authorization of the rule thus provides the possibility of summary judgment on either all or only a part of any issue in the case, and for or against some or all of the parties.

Fed. R. Civ. P. 56(g) specifically grants the court authority to determine, on the basis of summary judgment motions and proceedings, the material facts that are not in dispute and to enter an order establishing these facts, thereby removing them from the trial. In this way, the court may, by determining the overlap in the parties’ factual positions, eliminate uncontested issues and restrict trial to only the contested matters. The parties may also move the court to take this action, although it is more often a matter for court initiation. Counsel often achieve the same result closer to trial by stipulating to uncontested facts in the pretrial order.

The costs of a partial summary judgment motion that fails, even if granted, to resolve the litigation completely may not warrant the motion. Litigants should usually attempt a partial summary judgment motion where:

• Important material facts are uncontested.
• Hotly contested or emotional facts are not material.
• One party is entitled to judgment as a matter of law on at least one claim in the action.

Advance rulings may assist the court as well by conserving the court’s time and resources. The motion ordinarily creates little increased expense to the parties and may facilitate settlement of the litigation.

Partial summary judgment motions are subject to the same procedural requirements as any other summary judgment motion. Orders granting partial summary judgment are ordinarily not final or appealable under 28 U.S.C.A. § 1291. An order disposing of some, but not all, of the claims or issues between two or more parties is interlocutory in nature and not appealable except by certification or some exception to the final order rule. An order that resolves all of the claims for one or more parties is final in nature and may be appealable if a judgment is actually entered. Fed. R. Civ. P. 54(b) permits the entry of partial judgment on the express direction of the court and a determination that no just reason exists for delay in entry of judgment. Because a partial summary judgment grant is interlocutory in nature, it is subject to review by the trial court at any time before final judgment. Courts do not welcome constant requests to reopen matters previously resolved by summary judgment, but will consider it in unusual cases.

Section 12.3 discusses the use of partial summary judgment as part of an overall case strategy. Counsel can use the motion in conjunction with motions in limine. By focusing the court’s attention on the factual disputes in the context of impending evidentiary rulings, counsel may convince the court of inevitable rejection of an opponent’s claims or defenses. Partial summary judgment rulings may also make certain evidence inadmissible by removing issues from the case and thus change the overall settlement posture of the case. Courts, increasingly attuned to the effect their decisions may have on settlement, may consequently also be increasingly receptive to partial summary judgment.

§ 13.4 Motions Affecting Trial Calendar and Case Management

§ 13.4.1 Introduction

Trial courts are generally accorded great deference by appellate courts in the management of trial court calendars. The court has great discretion in these matters, and a party seeking appellate review of decisions relating to the trial calendar must show actual and substantial prejudice. The trial court’s discretion with respect to some decisions is nearly absolute, and will not even be subject to appellate review.

Motions that affect the trial calendar are specially treated by trial judges because these motions, more than any other group, present issues that affect the interests of the court and the litigants in other actions as well as the parties to the action in which the motion is made. By their very nature, motions to advance one cause on a trial calendar will have potential impacts on all the other cases on that calendar.

Motion practice on issues concerning the trial calendar differ depending on the type of calendar. State courts use either a master calendar system, individual calendar system, or some combination of the two. Federal courts use an individual calendar assignment with the district judge assisted by a magistrate judge for procedural matters.

The master calendar system relies on the pooling of all cases before a multi-judge court. The trial judge will not be assigned to the case until it is called for trial, and that judge will probably not have heard prior motions in the case. This system promotes the maximum utilization of judges, but also encourages postponement of difficult issues and requires a new judge to become familiar with the case each time a motion is heard.

The individual assignment, or “block”, system provides for the assignment of cases to individual judges as the cases are filed, and for the assigned judge to handle all proceedings in cases assigned to that judge. The initial assignment is usually made on some random or quasi-random basis, and random reassignment occurs if the assigned judge is recused. This system is thought to encourage earlier rulings on pretrial matters, since the pretrial judge is also the trial judge who will ultimately have to make a ruling if the matter remains unresolved after pretrial. Although cases may be assigned to judges randomly on a basis of numerical equality, the resulting workloads invariably will not be equal because of the different burdens presented by various cases.

Some courts use a hybrid system that incorporates aspects of both the master calendar and individual calendar systems. One variation of the master calendar or pooled system calls for the cases to be assigned to an individual judge at some time before trial, but after the case has been handled on a pooled basis for some period of time. Courts using the individual assignment system may convert to a block system temporarily to deal with designated older cases and to equalize the inevitable variations in calendar backlogs. The block system may be used to deal with a large number of similar cases pending on individual calendars.

In courts using the master calendar system, it is necessary for decisions affecting the calendar to be made at a single source. Local rules will normally require motions affecting the trial calendar to be heard by the chief judge or by a designated calendar judge. In courts using the individual calendar system, motions concerning the calendar will be heard by the judge to whom the case is assigned.

§ 13.4.2 Motions for Continuance

A motion for continuance asks the court to postpone the setting of a case on the trial calendar. Normally, a continuance will not affect other aspects of the case’s status (although discovery and motion cutoff dates may restrict other activity). A continuance should be distinguished from a stay in this regard. A stay of proceedings normally holds all activities in abeyance, and may be ordered before the action ever appears on a trial calendar. Stays of proceedings are frequently entered to permit a similar suit to proceed in another court, or to permit arbitration proceedings to take place. Courts are rarely reversed for denying a continuance, and virtually never reversed for allowing one.

The grounds for which a continuance may be sought are myriad. The fundamental basis for allowing such a motion, however, is prejudice which would occur if a party is required to go to trial at the date initially established. Incapacitating illness of trial counsel or a necessary witness may require granting a motion for continuance. Similarly, courts will deny a motion for a continuance if it is apparent that the party has had ample opportunity to prepare the case and has failed to do so.

§ 13.4.3 Motions for Jury or Bench Trial

The jury trial is a central part of the court system in the United States, and the right to a jury trial is a valuable, important right. In federal court cases, the right to a jury trial is guaranteed by the Seventh Amendment to the United States Constitution in all actions triable to a jury at common law.^[40]^ Federal Rule 38 along with the Seventh Amendment preserve the right to a jury trial as it historically existed in 1791. For claims that did not exist way back when, courts have adopted a two factor assessment: (1) The judge is to find an analogous claim that existed in 1791 and determine whether that cause of action enjoyed the right to a jury trial. And (2) the judge is to ascertain whether the relief sought is legal or equitable in essence.^[41]^

Many state constitutions have similar provisions, and a multitude of federal and state statutes have extended the right to a jury trial to actions that did not exist at common law. Fed. R. Civ. P. 38(a) makes it clear that the rules of civil procedure preserve the rights of parties to trial by jury. In general, however, a jury will not be available in actions that seek relief which is equitable in nature, such as injunctions, specific performance, or an accounting. A party may waive the right to a jury trial in a contractual agreement, and the consent must be knowing and voluntary. An effective and enforceable waiver may occur via a contract provision that refers to a bench trial, or in an arbitration clause, or in a term that explicitly waives the jury trial rights.^[42]^

Because a jury trial is a fundamental right, a motion is not normally necessary to secure a jury trial. Most jury trials are held without any motions relating to the right to a jury. In some cases, however, a party may inadvertently waive a jury, or may belatedly demand a jury trial. A party may also demand a jury in a situation where it is clearly not entitled to a jury trial, and the opposing party may seek to have the jury demand stricken and the action removed from the jury calendar. Even if the parties are not entitled to a jury trial, the courts are given unlimited latitude to permit an advisory jury to consider the issues, and a party may desire to seek an advisory jury by motion.

A motion for a jury trial is one of the more unfortunately necessary motions in the litigator’s arsenal. A party may secure a jury trial simply by demanding one in a timely manner, so a motion should not be required. Nonetheless, the motion for a jury trial is frequently brought, often by parties with experienced counsel who have neglected to make a demand.

Most motions for a jury trial arise as a result of the operation of Fed. R. Civ. P. 38(d), which deems the failure to make a jury demand a waiver of the right to trial by jury. This provision, though clear in the rules, has proven to be a trap for unwary counsel, and many motions are submitted to the courts asking that the parties be relieved of the burdens imposed by the rule. One reason for the frequency of these motions is that some states have practices that require an affirmative act before waiver will be found.

If a party makes a demand for a jury, the action is treated as a jury case and will be placed on the jury calendar. Once a jury demand is made, the case must be tried to a jury unless the parties agree to have it tried to the court alone or there is a motion to strike the jury demand and have the action tried to the court. Under Fed. R. Civ. P. 39(a) this motion can be made by any party or upon the court’s own initiative.

Even in actions that are not triable to a jury, the court may empanel an advisory jury to hear testimony and render a verdict.^[43]^ Fed. R. Civ. P. 39(c) authorizes use of an advisory jury, and specifically allows seeking an advisory jury by motion. Usually, a motion for an advisory jury will be made shortly before the beginning of trial, if not earlier.

An advisory jury is used whenever the trial court feels it will be of value in finding the facts. In practice, advisory juries are not often used. If a case involves some issues to be decided by a jury and others by the judge, the jury may provide an advisory verdict on the issues to be decided by the judge. The decision of the trial court to use or not use an advisory jury will likely not be overturned nor even reviewed on appeal.

One reason for the vast discretion allowed the trial courts in deciding whether to use an advisory jury is the limited effect its use will have on the review of the action. If an advisory jury is used, the court simply considers the jury’s verdict or answers to special interrogatories in framing the court’s own findings of fact. The jury’s verdict does not have any separate vitality, and is not binding in any way on the trial court. The trial court is free to reject the jury’s findings, or may adopt the findings as the court’s own.

Because the court can use an advisory jury without any motion from the parties, a motion must persuade the trial court that an advisory jury would be useful under the facts of the case. There is no right to an advisory jury. Courts may be particularly inclined to use an advisory jury in cases where the principal dispute centers around the credibility of witnesses. An advisory jury is unlikely to be used in cases presenting complex technical issues or complicated issues of mixed law and fact.

§ 13.4.4 Managing Large, Complex,

and Multi-District Cases

Courts have increasingly recognized that special problems exist in the management of complex, protracted, and geographically far-flung litigation and lawsuits involving numerous parties. Efforts to adapt the Federal Rules of Civil Procedure to control the course of complicated cases have resulted in the Manual for Complex Litigation (Manual) for federal court actions. Rules and procedures similar to those set forth in the Manual are applied by state court judges, either through use of local rules or by entry of appropriate orders in individual cases. The Manual itself is often relied on by state court judges.

The Manual has no authority or binding role on the decisions made for the management of complex cases. Rather, the Manual establishes recommended procedures to be used to handle complex cases efficiently. The procedures created by the Manual call for active and aggressive involvement of the court in the management of complex cases from the day the complaint is filed. The Manual provides for four pretrial conferences and suggests specific areas and problems that are appropriate for discussion and resolution at each stage in the litigation.

The Manual is a useful tool to the courts and can be a useful tool to lawyers seeking to structure and control a large case. Although the Manual recommends procedures that may be implemented by the court without any motion of counsel, it is permissible to move the court to take any desired action in a complex case. The Manual suggests many tools that may be of value to one party or to all the parties in a complex case, and should be consulted by all counsel involved in these cases.

Court appointed neutrals are widely used to expedite the handling of large and complex cases. Fed. R. Civ. P. 53 provides for the appointment and compensation of special masters and permits the courts to delegate substantial powers to this neutral. These judicial adjuncts are appointed by the trial judge and are directed to make reports to the court on matters assigned to them. Although they are frequently appointed upon the court’s own motion, there is no reason that a party cannot initiate the appointment of a neutral by motion.

These neutrals are of value in particularly complex or intractable cases. One particularly effective use of them is the coordination of state and federal cases. Judges in related state and federal cases can each appoint the same neutral in their cases, assuring communication and as much coordination as is appropriate. Neutrals are usually compensated by the litigants in a manner and amount determined by the court. Further information about their effective can be found at <court‌appointed‌neutrals.org>.

LLMs can help attorneys manage large, complex, and multi-district cases by streamlining case organization, coordinating procedural strategies, and optimizing for judicial oversight. For example, LLMs can analyze the Manual for Complex Litigation, identifying procedural tools that align with case strategy and generating tailored case management proposals. LLMs can also help coordinate state and federal cases by identifying overlapping legal issues, aligning discovery, and drafting aligned motions. Additionally, LLMs can coordinate all of the cases to create timelines and workflow plans, allowing litigation teams to manage their complex cases efficiently.

§ 13.5 Motions for Provisional Relief

§ 13.5.1 Types of Preliminary

Substantive Relief

The most common form of preliminary relief is injunctive relief, which is available to maintain the status quo in the relationship of the parties until the court can determine an appropriate final remedy. Other forms of provisional remedies include pre-judgment garnishment, attachment, sequestration, and receivership. These remedies are similar to tools available to enforce a judgment of a court, and will be available without a judgment in limited circumstances. This section focuses on seeking and resisting temporary or preliminary injunctive relief.

§ 13.5.2 Temporary Injunctive Relief

Courts provide three types of injunctive relief: a temporary restraining order (TRO), a preliminary or temporary injunction, and a permanent injunction. These injunctions seek: (1) to prevent or prohibit adverse conduct or behavior by a defendant and (2) to protect and restore rights and remedies of a plaintiff. All three types of the injunctive orders require a party either to refrain from doing something or to do something. A permanent injunction may be granted after a trial on the merits if justified by the facts and circumstances of the case. A preliminary or temporary injunction may be issued to preserve the status quo pending a final decision reached at the trial. A TRO may be issued on an ex parte or emergency hearing basis to prevent immediate irreparable injury until a hearing can be held for a preliminary or temporary injunction. Both TROs and preliminary injunctions are of limited duration and will be discussed collectively as “temporary injunctive relief.”

A party can obtain injunctive relief, an extraordinary remedy, only when the situation is clear and compelling. Courts have granted temporary injunctive relief in a wide range of circumstances. Judges have granted temporary restraining orders and preliminary injunctions to preserve constitutional rights, to protect the economic security of a business, to protect good will or reputation, to protect a copyright or patent infringement, to protect a personal services contract, to prevent harm to the environment, and to censor attempts at humor in this book.

The procedures for obtaining temporary injunctive relief are technical, complicated, and exacting. Judges are reluctant to exercise their power and enjoin or restrain defendants unless an emergency or crisis exists. Temporary injunction proceedings are prepared, presented, and determined in an extremely short period of time, providing little opportunity for reflection. This environment tests the mind and mettle of the lawyers and the judges.

The plaintiff should seek such injunctive relief only after all other remedies have failed or would clearly be inadequate. Reasonable, good faith efforts should be made to contact the adverse party and to seek voluntary compliance with a request or a temporary negotiated result until a regular lawsuit can be commenced and adjudicated. A plaintiff should also avoid seeking a temporary restraining order at the very last moment. Eleventh hour TRO applications leave literally no time for the other party to appear at an emergency hearing or for the judge to consider optional remedies. However, some situations force a plaintiff to seek an unanticipated TRO. The defendant may create an emergency, leaving a plaintiff with no alternative. In these situations, the plaintiff should inform the judge that defendant’s conduct requires an emergency proceeding.

The defendant who receives notice and has an opportunity to defend a TRO request may be well advised not to oppose but to voluntarily agree to do something or not do something, rendering moot the need for such an order. This tactic will provide the defendant with more time to prepare a defense at a hearing for a temporary injunction. A defendant client may balk at such voluntary action thinking it a sign of weakness or an admission of liability. However, the judge, who will ultimately decide the issue, usually appreciates the extra time provided by defense counsel. Often the plaintiff will be satisfied with the word of defense counsel that the status quo will not be changed. Some plaintiffs may insist on a written agreement. Care should be taken in drafting such a voluntary restraint, with particular attention paid to the scope of the conduct and the duration of the compliance.

Temporary injunctive orders may be appealable depending on their type, duration, and impact. The granting or denial of a temporary restraining order is not appealable unless the circumstances justify a writ of mandamus or prohibition to an appellate court. The granting or denial of a preliminary injunction is appealable as an interlocutory appeal under [28 U.S.C. § 1292](https://www.westlaw.com/Document/NCF4FA5F0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCF4FA5F0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

By their nature, TROs require speed. LLMs help expedite the process and meet urgent deadlines as TROs often demand high-speed drafting under extreme time constraints. That urgency leaves little room for traditional legal research and deliberation. GenAI can help generate strong, well-structured motions quickly, ensuring clarity, legal sufficiency, and procedural compliance.

If the LLM can access legal databases, it can incorporate newly issued case law, statutes, and jurisdiction-specific rules—integrating it all with the client’s facts. GenAI can also anticipate an opposing party’s potential counterarguments, preemptively addressing their weaknesses and increasing the chances of a successful outcome.

Beyond legal research, LLMs can also quickly synthesize client interviews, documents, and lawyer notes into a compelling narrative. TROs require a strong story, and LLMs are good storytellers. By analyzing documents, affidavits, and correspondence, GenAI can extract key facts and frame arguments that highlight immediate and irreparable harm (or the lack thereof).

LLMs can also assist in strategic decision-making for both plaintiffs and defendants. By producing clear, concise arguments under extreme time pressure, GenAI can help attorneys secure—or prevent—injunctive relief more quickly, and more effectively. See § 13.5.6.

§ 13.5.3 Criteria for Injunctive Relief

Several major aspects are involved in the consideration of granting or denying temporary injunctive relief:

1. Jurisdictional matters, including control over persons or subject matter as well as the power of the court to grant the relief.

Various sources of the law regulate jurisdiction. Numerous state and federal statutes and constitutional provisions provide the court with jurisdiction over the persons and property involved in an injunctive proceeding. The applicable state or federal law will determine whether or not a party has a right to request injunctive relief.

2. The grounds supporting the issuance of an injunction.

The propriety of granting or denying injunctive relief depends upon the facts and circumstances of a case. The following sections discuss the criteria developed by case law, rules, and statutes for determining whether or not grounds exist for equitable relief.

3. Procedural matters controlling the mechanics of issuing an injunctive order.

Procedural matters have been codified in rules such as Fed. R. Civ. P. 65 and corresponding state rules. Later sections in this Chapter detail the procedures involved in seeking a temporary restraining order and a preliminary injunction. Specific federal and state statutes in certain cases will preempt or supplement the general procedures established by rules. The general rules of civil procedure establish a detailed framework for obtaining temporary injunctive relief but do not establish a comprehensive framework. For example, Federal Rule 65 describes the type of notice required for a motion hearing and the form of a restraining order but does not prescribe the type of hearing required nor provisions for the enforcement of an injunction. Traditional common law equitable procedures and doctrines will govern matters not expressly covered by civil procedure rules.

4. The need for and amount of security.

Federal Rule 65(c) provides that temporary injunctive relief may only be granted if the movant gives security in an amount the court considers proper to the pay the costs and damages that may be sustained by a party wrongfully enjoined or restrained. Typically, the successful party posts a bond or assets as security. Parties who are indigent seeking to enforce their constitutional rights may be able to obtain temporary injunctive relief without having to provide security because otherwise they would be denied due process.

§ 13.5.4 Temporary Injunction Grounds

The party who seeks temporary injunctive relief has the burden to show that sufficient grounds exist to grant the remedy. The discretion the trial judge exercises in determining whether to grant or deny injunctive relief will rest upon an analysis of several factors that case law has developed to determine the propriety of temporary injunctive relief. These criteria include:

1. The threat of irreparable harm to the plaintiff if the injunction is denied.

2. The balancing of this harm with the injury suffered by the defendant if the injunction is granted.

3. The reasonable probability that the plaintiff will prevail on the merits.

4. The extent of the public interest.

*Irreparable Harm. *[Fed. R. Civ. P. 65](https://www.westlaw.com/Document/N23127B90B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N23127B90B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) states that immediate and irreparable injury, loss, or damage constitute the grounds for the issuance of temporary injunctive relief. This factor may represent the most important prerequisite for the issuance of a temporary injunction. Temporary injunctive relief will only be justified if the threatened irreparable harm may render the relief sought by the plaintiff ineffectual or impossible to grant at a later time. The irreparable injury must be likely to occur. An adequate remedy at law, such as money damages, may provide sufficient compensation for an injury, rendering injunctive relief unnecessary. In actual application, the irreparable harm standard is not as draconian as it first sounds. Most courts will find the requisite harm if the movant will be substantially hurt absent the injunctive relief and if movant’s loss is difficult to calculate in monetary terms or involves particularly sensitive and compelling though technically compensable consequences (e.g., injury or great risk to a loved one), or would result in waste if allowed to occur only to be recompensed by money damages.

Balancing of Hardships. The balance of hardships factor requires a court to weigh the hardship occurring to the plaintiff if the injunction is denied with the severity of the impact on the defendant if the injunction is granted. It makes sense that a temporary injunction should only be granted if it appears that more harm would result from its denial rather than from its being granted. If an injunctive order would create a significant burden for the defendant, that outweighs the relief provided the plaintiff, the injunction will be refused. Courts will grant temporary injunctive relief even if there is damage to the defendant if the injury is inconsiderable or may be adequately indemnified by bond.

Likelihood of Success. Courts require that plaintiff show some likelihood of success on the merits. The degree of success may vary depending on the jurisdiction and the circumstances of a case. The federal courts have created a variety of phrases in an attempt to define “likelihood.” Courts have described this degree of success as: “strong probability,” “probability,” “probable cause for success,” “substantial likelihood,” and “reasonable likelihood.” The most commonly acceptable phrase may be “a reasonable probability of success.” It is clear that a plaintiff need not prove success to a certainty, but must establish elements of a prima facie case.

Public Interest. The nature of the public interest in a case can be an additional factor that bears upon the court’s discretion in granting or denying the temporary injunction. The degree to which the grant or denial of the requested injunctive relief furthers or inhibits the public interest and the policy considerations that underlie the positions of either party influences the judge in determining which party should prevail. Public interest issues may arise in cases involving governmental agencies as well as rights between private parties. In cases involving private interests and not public interests, the court need not significantly rely on the impact the granting or denying of injunctive relief may have upon broad principles of public policy.^[44]^

*Enforcement of Order. *In some cases, another factor that may affect the grant or denial of temporary injunctive relief involves the court’s ability to monitor and enforce the order. It may be extremely difficult for an order to be administered or practical problems may prohibit an order from being enforced. The court may not have the resources or ability to monitor the proceedings. This factor is more likely involved in an order requiring a party to do something affirmatively rather than be restrained from doing something. For example, a court faced with a motion seeking to order a government agency to provide ongoing care and services to a disabled or mentally challenged plaintiff may be quite difficult to monitor.

LLMs that have access to legal databases (e.g., cases, motions, briefs, pleadings, orders) can use vector embeddings to find similar and analogous cases where courts have granted injunctive relief. By identifying similar and analogous facts, GenAI can craft stronger arguments than was possible under mere keyword searches.

Beyond crafting legal analyses, LLMs also excel at an essential aspect of temporary injunctions: storytelling. A clear narrative that explains the necessary and urgency requires quickly taking often-voluminous documents—client interviews, emails, texts, and attorney notes—and quickly transforming them into a compelling legal story that underscores the immediacy of harm, the likelihood of success, and the broader public interest. LLMs help attorneys quickly craft motions that not only meet procedural requirements but also persuade judges that granting relief is the right thing to do.

§ 13.5.5 Equitable Injunction

There is some uncertainty regarding whether a party seeking prejudgment injunctive relief must satisfy each and every one of the above factors to succeed (the “sequential” approach) or whether an injunction may be issued when on balance the four factors support injunctive relief (the “sliding scale”) approach. In denying injunctive relief in Winter v. National Resources Defense Council, Inc.,^[45]^ the U.S. Supreme Court could be read as adopting the sequential approach but was nonetheless balancing equitable and public interest factors. Most courts appear not to require that a party seeking injunctive relief prevail on every factor.

The granting or denying of temporary injunctive relief depends on the trial court’s exercise of equitable discretion. Traditional equitable defenses may influence the decision of the judge. Bad faith conduct, the absence of “clean hands,” and laches constitute grounds that may bar the granting of injunctive relief. The notion that a plaintiff must “do equity” to receive equitable relief affects the thinking of the judge. In those cases where both the plaintiff and defendant have been involved in some misconduct, the party that has been involved in the more egregious behavior usually is barred from equitable relief.

Two general prerequisites for binding a person to an injunction are that: (1) the court have in personam jurisdiction over the person and (2) the defendant have notice of the injunctive order. Fed. R. Civ. R. 65(d) provides that an injunctive order is “binding only upon the parties to the action, their officers, their agents, their servants, employees, and attorneys.” Persons who are not parties to the injunction or at privity with parties are not bound by a decree. The “privity” concept described in case law appears to be synonymous with the individuals listed in Fed. R. Civ. P. 65(d) and similar state rules. A non-party cannot be bound to an order unless there exists sufficient connection between the non-party and the party to protect the rights and interests of the non-party.

§ 13.5.6 Temporary Restraining Orders

A party may seek immediate injunctive relief in exceptional circumstances. A party may obtain a temporary restraining order (TRO) under Fed. R. Civ. P. 65(b) to preserve the status quo until the hearing for a preliminary injunction can be conducted. The moving party must show that immediate and irreparable injury, loss, or damage will result before the adverse party or the party’s attorney can be heard in opposition. The nature of the irreparable injury to a party will depend on the facts of a case. The three additional factors considered in granting temporary relief (balance of hardships, likelihood of success, and public interest) may or may not be required depending upon the jurisdiction. Fed. R. Civ. P. 65(b) explicitly provides for the granting of a temporary restraining order if the ground of immediate and irreparable harm has been established.

A temporary restraining order may be granted with or without notice. Pursuant to Rule 65(b)(2), a party seeking an ex parte order must state to the court in writing efforts made to give notice or the reasons why notice should not be required. Notice to the opposing party of an application for a temporary restraining order may be done formally through writing or informally through oral communication. The purpose for the notice is to provide the opposing party with an opportunity to be heard in opposition to the TRO motion at a specified time and place. Informal notice will usually be sufficient because time is a critical factor in seeking a restraining order. A telephone call made to the opposing party or lawyer will commonly suffice, or a text message or email. Some form of notice will usually be required, except in extraordinary circumstances, to comply with the requisites for a fair hearing and with the spirit and letter of the applicable civil procedure rule or statute.

Temporary restraining orders may be granted without notice in emergency circumstances. These emergency situations are uncommon and unusual. An emergency situation justifying issuance of an ex parte restraining order exists if the order provides the sole method to preserve the rights of the moving party. Another situation justifying a TRO without notice occurs when notice to the opposing party would exacerbate a situation and result in the adverse party acting in a manner that renders moot the need for the restraining order. Examples include an opposing party’s threat to destroy disputed property or to remove property beyond the jurisdiction of the court. Other situations may require that notice be provided to the opposing party. A court may be unable to issue an ex parte order restraining a party’s constitutional rights.

A party seeking a TRO will usually need to provide the court with the following documents:

1. A motion for a temporary restraining order.

2. An affidavit or verified complaint showing specific facts that establish immediate and irreparable injury, loss, or damage.

3. A written certification by the applicant’s attorney explaining the notice provided the other side or the efforts, if any, which have been made to provide notice or a reason supporting a claim that notice should not be required.

4. A motion for a temporary or preliminary injunction.

5. A notice of motion or order to show cause for a temporary or preliminary injunction.

6. A summons and complaint commencing the litigation and detailing the injunctive claims.

7. Other documents. Local rules may require the submission of additional documents, such as an affidavit indicating whether any previous application has been made for a temporary restraining order.

8. Security. Typically a bond or surety document will be required.

9. A proposed temporary restraining order.

The nature of information contained in an affidavit or verified complaint must persuade a court that reasons exist for issuing a temporary restraining order.^[46]^ The statements must be based on reliable information, factual in nature, to convince the judge to grant an order. Affidavits need not, however, meet the standards established by evidentiary rules regarding admissibility of information.

Fed. R. Civ. P. 65(d) requires that every restraining order be specific in terms, set forth the reasons for its issuance, and describe in reasonable detail the acts sought to be restrained. This rule also specifically provides that the description in the order not be made by reference to the complaint or other documents and that such incorporation by reference cannot satisfy the requirement that the restrained acts be described in sufficient detail. A restraining order should be drafted concisely and clearly, and should state the reason supporting its issuance. The TRO must specifically describe in reasonable detail the acts prohibited or mandated. A non-specific restraining order may be necessary in situations in which the information needed to obtain details is known only to the party restrained or when the inclusion of specific information in the order would cause injury to the applicant. LLMs can aid in drafting TROs. See § 13.5.2.

The duration of a restraining order depends upon the law of the jurisdiction and the circumstances of the case. Procedural rules or statutes often prescribe a limited number of days for an order to remain in effect. Fed. R. Civ. P. 65(b) specifies that a restraining order expires at a time and date established by the judge in the order, which time may not exceed ten days unless a party shows good cause for an extension for an additional ten days, or unless the restrained party consents to an extension for a longer period of time. The limited duration of a TRO reduces the possible harm caused by an order granted without a hearing and ensures an immediate injunction hearing.

Typically, a temporary restraining order will continue until the judge makes a ruling after a hearing for the preliminary injunction. If the terms of a TRO in federal court do not specify the duration, the order will automatically expire after ten days unless a party establishes good cause or the restrained party consents to a continuation. The party seeking an extension may need to obtain an extension during the life of the order. Fed. R. Civ. P. 65(b) requires a party to obtain an extension before the original TRO expires.

§ 13.5.7 Preliminary Injunctions

The purpose of a preliminary injunction is to protect the plaintiff from irreparable harm and to preserve the status quo until a trial on the merits so that the impact of any judgment shall not be adversely affected by the conduct of the parties during litigation. This need to preserve the court’s power and the judicial process from being rendered futile by a party’s action or inaction may be the most compelling reason to grant a preliminary injunction.^[47]^

Various jurisdictions refer to a preliminary injunction by different labels. Some jurisdictions describe this form of injunctive relief as a temporary injunction, an interlocutory injunction, a provisional injunction, an interim injunction, an impermanent injunction, an injunction pendente lite*,* and other synonymous phrases. A preliminary injunction differs from a temporary restraining order in that it may not be issued ex parte and may remain in effect for a longer time. A preliminary injunction has all the force and effect of a permanent injunction and may be granted only after an evidentiary hearing.

A rule or statute typically outlines the process that must be followed to obtain a preliminary injunction. Fed. R. Civ. P. 65(a)(1) states that no preliminary injunction shall be issued without notice to the adverse party. Sufficient notice may be provided by a written notice of motion or by an order to show cause directed to the adverse party.

A party has a right to a hearing before a preliminary injunction may be granted against that party.^[48]^ The federal rules do not dictate the requirements for the notice nor the details of the hearing for a preliminary injunction. In situations where no specific rule or statute prescribes the mechanics of a preliminary injunction procedure the general provisions from that jurisdiction that regulate notice and hearings will apply. “Notice” implies that a party will be provided with sufficient notification and a fair opportunity to oppose the application for a preliminary injunction. “Hearing” requires the trial of an issue or issues that include an opportunity to present evidence and arguments. Fed. R. Civ. P. 6(c) generally requires a minimum of 14 days notice before a hearing may be held. Shorter notice may breach due process requirements. If a party wants a hearing scheduled on shorter notice, either a court order must be obtained reducing the time or consent must be obtained from the adverse party stipulating to the earlier date.

§ 13.5.8 Preliminary Injunction Documents

The documents necessary to obtain a preliminary injunction resemble the documents needed to obtain a temporary restraining order. They include:

1. A notice of motion or order to show cause and a motion for a temporary injunction. The motion should specify the grounds for the preliminary injunction and the parties and specific acts sought to be enjoined.

2. A proposed preliminary injunction order detailing the specific relief requested.

3. A summons and complaint that describe the claims for injunctive relief.

4. Affidavits or a verified complaint to provide the information supporting the need for the injunction. A court may grant a preliminary injunction on the basis of written sworn statements. Fed. R. Civ. P. 6 and similar state rules require that written statements be served with the motion and opposing affidavits no later than seven days before a hearing. Considerations regarding the evidentiary value and impact of affidavits and verified information discussed in section 13.5.4 regarding applications for temporary restraining orders apply with equal force to preliminary injunction hearings.

5. Security in the form of a bond or surety.

6. A memorandum of law explaining the legal basis for the relief sought.

7. Proposed findings of fact and conclusions of law granting of the temporary injunction.

The party opposing a motion for a preliminary injunction may also submit affidavits and a memorandum of law in opposition to the motion. As with other injunctive procedures, LLMs can also assist with composing injunctive documents and offer advice on proper procedures for preliminary injunctions.

§ 13.5.9 Preliminary Injunction Procedures

A preliminary injunction hearing may involve oral testimony in court or deposition testimony obtained through discovery. Testimonial evidence may be preferred if there exists a factual controversy that may more easily be resolved by the judge after hearing and observing the demeanor of witnesses. Some situations do not permit live testimony because of time deadlines. Some judges discourage oral testimony to avoid having to hear the same testimony again at the trial. Depositions provide another means to present the judge with essential information through direct and cross-examination. Preliminary injunction hearings may include a combination of evidence submitted by affidavit, verified pleadings, discovery responses, deposition testimony, and oral testimony during the hearing.

A conference convened to consider a motion for a temporary restraining order or a hearing scheduled pursuant to a motion by a restrained party to modify or dissolve an injunction may be converted into a preliminary injunction hearing. If the parties can offer evidence to the same degree as at a properly scheduled preliminary injunction hearing, a temporary restraining order conference or a modification/dissolution hearing may be properly declared to be a preliminary injunction hearing. This conversion should only occur if parties have sufficiently prepared and if they have a full opportunity to present evidence and arguments.

Usually, the court in granting or denying a preliminary injunction must prepare findings of fact and conclusions of law regarding the grounds for its decision. Fed. R. Civ. P. 52(a) and similar state rules require the judge to file such written findings and conclusions to support the decision. Either party may submit proposed findings and conclusions to assist the judge.

A party to a preliminary injunction hearing may request that the trial of the action on the merits be advanced and consolidated with the hearing on the motion. Fed. R. Civ. P. 65(a)(2) provides that before or after the commencement of the preliminary injunction hearing the court may order the trial to be advanced and consolidated. Ordinarily such a consolidation is not appropriate because the parties lack sufficient time for trial preparation and discovery. Consolidation is inappropriate if the facts and issues raised at the preliminary injunction hearing will differ from those raised at the main action.

This provision is included in Fed. R. Civ. P. 65 and similar state rules intended to encourage the practice of accelerating the trial and eliminating the situation of basing preliminary injunction on partial evidence. A valid objection raised by one party may be sufficient to preclude an accelerated proceeding. A court on its own motion may transform a preliminary injunction proceeding into a consolidated hearing at any time provided the parties receive fair notice and an opportunity for a full hearing.^[49]^ Limited circumstances may justify a court in issuing a final adjudication in a case on its own motion, such as a frivolous complaint or motion.

Fed. R. Civ. P. 65(a)(2) further attempts to encourage judicial economy by automatically rendering admissible at the trial all evidence received at the preliminary injunction hearing. This provision makes it unnecessary for a party to repeat testimony at the trial although such duplication will be necessary to provide the finder of fact with the essential information, to allow a fact finder to observe the credibility of witnesses, to add details to the facts, and to permit a different judge to hear the facts first hand.

A party’s right to a jury trial is preserved if trial is consolidated with the preliminary injunction hearing. If a case involving injunctive relief includes issues triable by a jury as of right, any consolidated trial must preserve these rights. Fed. R. Civ. P. 65(a)(2) recognizes this principle by expressly stating that the rule relating to consolidation must be construed and applied in a way that protects a party’s right to a jury trial. This provision does not restrict the trial court’s power to grant a preliminary injunction based on issues that ultimately will be determined by a jury. A judge may properly decide a jury issue in granting or denying a preliminary injunction, although that issue must be decided by a jury at the trial on the merits.^[50]^

The court’s preliminary injunction decision does not bind subsequent judges. The findings of fact and conclusions of law made by a judge after the preliminary injunction hearing become part of the record but are not binding at the time of trial. A preliminary decision by a judge does not adjudicate the merits of the issues because a preliminary injunction hearing is only a hearing and not a trial.

§ 13.6 Motions for Pretrial

Evidence Rulings

Motions for pretrial evidentiary rulings are usually made to prevent the opposing side in the action from even offering objectionable material in evidence because of the prejudicial effect the mere disclosure of the evidence or its foundation would have. These motions are commonly called “motions in limine,” which literally translated from Latin means “at the very beginning,” or “at the threshold.” The name is somewhat apt, for these motions are typically brought shortly before the beginning of trial, at the final pretrial conference, with the filing of the final pretrial order, or at the commencement of the trial.

Generally, a motion in limine will seek two related rulings: first, a ruling on the admissibility of the questioned evidence, and second, an order directing counsel not to refer to the evidence and to instruct all witnesses not to mention the evidence once it is ruled inadmissible. The second ruling is what justifies an in limine ruling. Unless there is some danger of prejudice if the second ruling is not entered, there is no compelling reason for making the evidentiary ruling prematurely.

The motion in limine is most frequently used to bar inquiry that poses a substantial danger of eliciting evidence that is clearly prejudicial and inadmissible, or evidence whose probative value is far surpassed by its potential prejudicial effect.^[51]^ Such an exclusionary motion seeks to forbid the asking of a prejudicial question or the use of innuendo to allude to the prejudicial information. Typical examples would be motions to forbid questioning of a party concerning previous arrests, or extramarital affairs. Most of the evidence sought to be excluded at trial is somewhat less inflammatory and generally falls under the headings of: references casting doubt upon a party’s character; collateral source payments; liability insurance coverage; subsequent remedial measures; settlement discussions; and the existence of other litigation. In limine motions to exclude evidence on these grounds are equally available to plaintiffs and defendants.

The rules of civil procedure do not specifically provide for such motions. Most courts have now found sufficient authority for motions in limine in the inherent power of the courts to supervise trial and pretrial proceedings. In the federal system, that inherent power is codified by Fed. R. Evid. 103(d) and 403 and Fed. R. Civ. P. 16.

Whether to use a motion in limine and the means of employing it will vary from case to case. As cases become more complex, and as the judiciary takes a firmer hand in controlling court dockets, motions in limine have become increasingly useful. The motion gives an opportunity to have important evidentiary questions resolved with adequate forewarning, sufficient legal analysis and research, and an opportunity for the court to reflect upon the competing interests.

LLMs can help craft persuasive motions in limine by tailoring the relevant rules to the particular evidence. GenAI-backed tools can quickly incorporate this case’s facts into language that aligns with past rulings on evidentiary objections (of both the instant judge and courts in general). LLMs that can access databases (e.g., yesterday’s case, yesterday’s order) can also review prior rulings from the assigned judge. What does this judge find compelling? LLMs can help anticipate objections, prepare counterarguments, and propose alternative strategies—such as limiting instructions or conditional admissibility—to advance successful motions in limine.

§ 13.7 Motions to Vacate Defaults

Motions to vacate default judgments frequently become involved in pretrial procedures where a client permits a default judgment to be entered without consulting an attorney. All is not necessarily lost if a default is obtained, and the litigation is not over. Relief may be more than possible in certain circumstances.

Defaults and default judgments frequently cause motions for relief from orders and judgments. By definition, these final orders usually occur when a party has failed to defend an action. Consequently, once the order is entered the only recourse available to the defaulted party is a motion for relief from the default or default judgment pursuant to Fed. R. Civ. P. 55(c) and 60(b) or similar state rules. Although appeal is another available option, assuming the party learns of the judgment while it is appealable, appeal is not entirely satisfactory. Since the defaulted party was not a part of the trial court proceedings, the record on appeal is unlikely to urge reversal. Appellate courts are generally not receptive to appeals raising issues that have not been presented to the trial court. Thus, relief should usually be sought from the default in the trial court.

Fed. R. Civ. P. 55(c) provides that the trial court may, for good cause shown, set aside an entry of default and, if a default judgment has been entered, set aside the judgment pursuant to Rule 60(b). The distinction between default and default judgment is important, and is frequently either overlooked or confused by courts and lawyers.

Default occurs when, pursuant to Rule 55, a party obtains an adjudication that an opposing party has failed to appear in the action. A default is obtained by submitting proof to the clerk that the opposing party has “failed to plead or otherwise defend."^[52]^ Upon such a showing, the clerk must, per Rule 55(a), enter default in favor of the moving party.^[53]^ This default settles the liability issues of the case on the merits, but is not a judgment. The default is not an adjudication of the damage issues, and a judgment cannot be rendered until damages are proved.

Once a default is entered, a default judgment may be obtained in either of two ways.^[54]^ Where the claim sought is for a “sum certain for or a sum which can be by computation made certain,” the clerk may enter a default judgment (see Rule 55(b)(1)). Typically, the lawyer will submit a fact affidavit from the client explaining the sum certain and may attach as exhibits supporting documents authenticated in the affidavit. Default judgment may also be entered by the court in cases where the amount at issue is certain and must be entered by the court. Where the sum is uncertain, a hearing or other fact-finding process is required (see Rule 55(b)(2)). If the party against whom default is sought has appeared in the action, Rule 55(b)(2) requires the moving party must give written notice of the application for default judgment.

The court may conduct any hearing necessary to determine the amount of damages or any other matter in the litigation. Many courts will schedule the hearing as a motion hearing with the client and other witnesses testifying and bills introduced to prove damages. Unlike the ministerial entry of default or sum certain default judgment by the clerk, the court has discretion to grant default judgment and determine the amount. In effect, the default judgment proceedings before the court become a trial on the issue of damages, even though the defaulted party is absent. It is difficult—but not impossible for some—to lose any proceeding where there is no opposition, and a default judgment hearing is no exception. Unless bizarre or erroneous theories of damage are pursued, reasonable damages will be recovered.

§ 13.7.1 Challenging Default Judgments

Attacking a default judgment may be made in two ways. First, the substance of the default may be challenged, showing that it was not properly granted. Second, the order or judgment can be attacked using the grounds contained in Fed. R. Civ. P. 60(a) and (b). The first option will not normally be available because it is not often that the opposing party will fail to follow the rules concerning defaults. If a claimant fails to give the 7-day notice required by Fed. R. Civ. P. 55(b)(2) when the defendant has appeared, the motion for relief will be granted.

Although “appearance” normally contemplates an answer or motion, courts will also require the 7-day notice to be given to parties who have written to the claimant or had other contact with the claimant, considering this contact to constitute a constructive appearance. A direct attack on the default is also appropriate to challenge inherent error in the judgment itself. This may arise if the damages are awarded without adequate evidentiary support or if a legally erroneous theory of recovery is allowed.

If the default judgment is properly entered, the movant must show the applicability of Fed. R. Civ. P. 60(a) or (b) to obtain relief from the judgment. Grounds for obtaining relief under Federal Rule 60 and similar state rules include: clerical mistakes, other mistakes of inadvertence or surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation or misconduct of opposing party, a void judgment, a satisfied judgment, or any other reason justifying relief. The most common ground is usually excusable neglect, which covers client misunderstanding of the nature of a summons and complaint or their failure to timely contact an attorney. Typically, there are time limits regarding when a party may assert one or more of these grounds. The time may be stated in the rule as a reasonable time or a one-year period.

Where applicability of Rule 60 is shown, the court retains discretion to deny the motion. As a practical matter, however, defaults are disfavored, and a trial on the merits is strongly preferred by the courts. Thus, denial of a motion to set aside a default after the movant has established one of the grounds of Rule 60 is likely to be viewed as an abuse of discretion.

In addition to establishing that Rule 60 applies, the party seeking to set aside a default or default judgment must establish that there is a valid defense on the merits and that the claimant will not be substantially prejudiced by vacation of the default. The requirement of establishing a meritorious defense is obvious and may be accomplished by submitting a proposed answer with the motion. Some courts require that a proposed answer be submitted as one of the motion papers. The courts have little interest in permitting a party to avoid and delay the inevitable.

The requirement of showing an absence of prejudice to the claimant is not as onerous as it may sound. The courts require “substantial” prejudice to exist. The fact that the claimant will have to try the case on the merits, a burden inherent in vacating any default, is clearly insufficient prejudice to prevent vacating the default. Additionally, if there are means to ameliorate the prejudice, the court will consider using them. For example, if the claimant incurred significant expense in obtaining the default, the court can require the payment of those expenses as a condition of vacating the default.

The most frequent bases for finding substantial prejudice are the death or absence of key witnesses or the loss of other evidence. If these factors are not present, it is unlikely that substantial prejudice will be found. Even if witnesses have disappeared, courts have refused to find substantial prejudice, and have insisted on a trial on the merits.

Practice Problems and Assignments

Follow the directions from your professor in completing an assignment.

1. Prepare to discuss in class or online the federal law regarding:

(a) Consolidation

(b) MDL centralization

(c) Severance

(d) Separate trials

(e) Bifurcation

2. Research the differences and similarities between the federal law and the state law applicable in the state of your law school regarding the following procedures and be prepared to discuss these in class or online:

(a) Consolidation

(b) Severance

(c) Separate trials

(d) Bifurcation

3. Hot Dog Enterprises sues Tri-Chem (Case A), as well as the general contractor who constructed the building in Kansas and the architect who designed the building in Kansas.

(a) You represent the general contractor. Plan a motion for a separate trial. Outline a memorandum in support of the motion.

(b) Draft a motion. Draft a proposed order.

(c) You represent the architect. Plan a motion for a separate trial. Outline the memorandum in support of the motion.

(d) Draft a motion. Draft a proposed order.

(e) Will these motions for a separate trial be granted? Explain.

4. Presume in Luger v. Shade (Case H) that the Lugers sue Shade and Develco but not Gotbucks. Gotbucks then starts a separate suit for declaratory judgment declaring him to be the true owner of the townhouse. The Luger suit is filed in federal district court in Beachland while the Gotbucks suit is filed in state court in Gothamland, where Gotbucks resides. The Lugers timely remove the state court case to Gothamland federal court.

(a) As counsel for Luger, plan a motion to consolidate the actions. Since the Gotbucks suit is in Gothamland, what must first be done? What if Gotbucks also moves for consolidation in Gothamland? With competing motions, who wins?

(b) Draft the appropriate motion.

(c) Outline Gotbucks’ response to Luger’s motion to consolidate.

(d) Plan to discuss the issues in 4(a) with opposing counsel during a lawyer meet-and-confer conference, and consider optional outcomes. Prepare to discuss in class or online.

5. You represent Shop Format, a defendant in Rheinwald v. Whirling Dervish Lathes (Case I).

(a) Plan a motion for a separate trial.

(b) Draft such a motion and outline a memorandum in support.

(c) Will the motion be granted? Why or why not?

6. You represent Develco in Luger v. Shade (Case H).

(a) Plan a motion for separate trials.

(b) Draft such a motion and outline a memorandum in support.

(c) Will the motion be granted? Why or why not?

7. You represent Tri- Chem in *Hot Dog Enterprises v. Tri-Chem *(Case A). HDE sues Tri-Chem.

(a) Plan a motion to bifurcate the issues of liability and damages.

(b) Outline the memorandum in support.

(c) Draft such a motion.

(d) Draft a proposed order.

(e) Plan to discuss the bifurcation issues with opposing counsel during a lawyer meet-and-confer conference and consider optional outcomes. Prepare to discuss in class or online.

(f) Will the motion be granted? Why or why not?

8. In Miyamoto v. Snow Cat (Case C).

(a) As counsel for defendant Snow Cat, plan a motion to bifurcate the issue of liability and damages. Outline the memorandum in support.

(b) Draft such a motion.

(c) As plaintiff’s lawyer, outline a memorandum in opposition to bifurcation.

(d) Will the motion be granted? Why or why not?

9. Prepare to discuss in class or online Federal Rule 41(a) regarding voluntary dismissals.

10. Prepare to discuss in class or online Federal Rule 41(b) regarding involuntary dismissals.

11. Research the differences and similarities between Federal Rule 41 and the state court rules regarding voluntary and involuntary dismissals applicable in the state of your law school. Plan to discuss in class or online.

12. Hot Dog Enterprise sues Tri-Chem properly in federal district court. (Case A). Several days after serving and filing the federal lawsuit, you, as the attorney for HDE, decide you made a mistake and should have brought the lawsuit in an appropriate state court. Tri-Chem has not answered or served any motion. What can you do? Why?

13. Hot Dog Enterprises sues Tri-Chem in federal district court. (Case A). Tri-Chem serves an answer on HDE. You represent Tri-Chem. The attorney for HDE telephones you and tells you that HDE plans to dismiss the federal district court action and prefers to file a lawsuit in state court in Kansas. How would you respond to the attorney’s request for a stipulation? Why?

14. Hot Dog Enterprises sues Tri-Chem, and Tri-Chem answers. (Case A). You, as the attorney for Tri-Chem, refuse to stipulate to a voluntary dismissal by HDE of the lawsuit. HDE brings a motion asking the court to dismiss the action. The judge asks you why you oppose the motion? How do you respond? Why?

15. Hot Dog Enterprises sues Tri-Chem, and Tri-Chem answers. (Case A). Hot Dog Enterprises appears at a conference scheduled by the federal district court to discuss settlement and discovery but refuses to seriously discuss settlement or to settle. The court imposes a discovery schedule. HDE responds to some but not all of the discovery requests by Tri-Chem. Tri-Chem brings a summary judgment motion. HDE opposes the motion on the grounds that the summary judgment motion is premature because discovery has not been completed. The judge denies the motion and orders HDE to complete discovery. HDE continues to refuse to respond to all proper discovery requests by Tri-Chem. You represent Tri-Chem. What can you do? Why?

16. In Vasquez v. Hot Dog Enterprises (Case F), the plaintiff Juanita Vasquez submits interrogatories and requests for production on defendant HDE and schedules depositions after the discovery cut-off date established by the court. Plaintiff Vasquez also serves defendant HDE affidavits and declarations in opposition to its motion for summary judgment two weeks after the deadline established by local court rule. Plaintiff Vasquez further fails to appear at the pretrial conference. You represent HDE. What can you do? Why?

17. Juanita Vasquez first sues Hot Dog Enterprises in state court with claims based upon violation of state laws and breach of contract. (Case F). The plaintiff dismisses this case voluntarily and without prejudice. Juanita Vasquez then sues Hot Dog Enterprises again, this time in federal district court alleging violations of federal statutory law, state law, and breach of contract. You represent Hot Dog Enterprises. How may you respond to the second complaint? Why?

18. Hot Dog Enterprises sues Tri-Chem (Case A).

(a) You represent Hot Dog Enterprises. Do you prefer a trial before a judge or a jury? Why?

(b) You represent Tri-Chem. Do you prefer a trial before a judge or a jury? Why?

19. Juanita Vasquez sues Hot Dog Enterprises (Case F).

(a) You represent Juanita Vasquez. Do you prefer a trial before a judge or a jury? Why? Would you prefer to arbitrate? Why?

(b) You represent Hot Dog Enterprises. Do you prefer a trial before a judge or a jury? Why? Would you prefer to arbitrate? Why?

20. In a case assigned by your professor, plan to discuss in class or online whether you, as counsel for the party assigned to you, prefer a trial before a judge or jury, or an arbitration hearing, or an administrative law hearing (if available)?

21. Prepare to discuss in class or online Federal Rule 56 and the federal case law regarding summary judgment.

22. Research the differences and similarities between Federal Rule 56 and federal case law with the applicable summary judgment state court rules and case law applicable in the state of your law school. Plan to discuss in class or online.

23. Briefly review the following case files as assigned by your professor:

(a)* Hot Dog Enterprises v. Tri-Chem* (Case A)

(b)* Pozdak v. Summit Insurance Company* (Case B)

(c)* Vasquez v. Hot Dog Enterprises* (Case F)

(d)* FJE Enterprises v. Arbor Vineyards* (Case L) (insurance issues).

(e)* Lawn Turf v. National Seed*, Practice Problem 3 at end of Chapter 12.

Which of the cases will most likely involve successful summary judgment motions brought by either party to obtain a judgment? Why?

24. Hot Dog Enterprises sues Tri-Chem for violation of federal and state laws, negligence, and products liability claims in federal court. (Case A).

(a) You represent Tri-Chem. General counsel for Tri-Chem asks you how you plan to defend the case and whether you will bring a summary judgment motion seeking to dispose of any of the causes of action and claims for relief. What do you say to general counsel? Explain.

(b) You represent Hot Dog Enterprises. The general counsel for HDE asks you how to plan to proceed with the case and whether you will bring a summary judgment motion seeking to resolve some of the issues. What do you say to the general counsel? Explain.

25. Juanita Vasquez sues Hot Dog Enterprises (Case F). The complaint includes the following causes of action and claims for relief:

(a) Violation of the federal anti-discrimination acts, [42 U.S.C.A. § 2000e](https://www.westlaw.com/Document/NEA3563A0AFF711D8803AE0632FEDDFBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NEA3563A0AFF711D8803AE0632FEDDFBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0),

(b) Violation of the State Human Rights Act,

(c) Breach of written employment contract,

(d) Breach of oral employment contract,

(e) Breach of contract based upon personnel handbook,

(f) Breach of contract based upon good faith and fair dealing, and

(g) Punitive damages for willful and malicious conduct by defendant.

You represent Hot Dog Enterprises.

(a) Prepare to discuss in class or online a discovery and motion plan seeking to dismiss as many of the plaintiff’s claims for relief as possible through summary judgment.

(b) Prepare a discovery and motion plan seeking to dismiss as many of the plaintiff’s claims for relief as possible through summary judgment.

(c) Presume the facts are established through discovery in an affidavit as stated in the case file. Which plaintiff claims would you seek to dispose of by motion? Why?

(d) Plan to discuss the summary judgment issues with opposing counsel during a lawyer meet-and-confer conference and consider optional outcomes. Prepare to discuss in class or online.

26. Plan a summary judgment motion based on a case provided by your professor.

(a) Prepare to discuss in class or online the contents of a memorandum in support of a summary judgment motion assigned by your professor.

(b) Prepare an outline of a memorandum in support of a summary judgment motion assigned by your professor.

(c) Draft a motion for summary judgment and all supporting documents based on the case provided by your professor.

(d) Plan to discuss the issues with opposing counsel during a lawyer meet-and-confer conference and consider optional outcomes. Prepare to discuss in class or online.

(e) Prepare to discuss in class or online retaining the services of a mediator or a special master to assist in resolving these issues.

(f) Plan the opposition to a summary judgment motion on behalf of an opposing party in a case assigned by your professor. Prepare to discuss in class or online.

27. Early one September morning, a Greyhound bus proceeding northward through Shasta County, California, collided with a southbound pickup truck. Two of the passengers aboard the bus were killed. Thirty-three others were injured, as were the bus driver, the driver of the truck and its lone passenger. One of the dead and ten of the injured passengers were Canadians; the rest of the individuals involved were citizens of five American States. The ensuing litigation led to an important Supreme Court case regarding judicial administration and the interpleader remedy.

The litigation began when four of the injured passengers filed suit in California state courts, seeking damages in excess of $1,000,000. Named as defendants were Greyhound Lines, Inc., a California corporation; Theron Nauta, the bus driver; Ellis Clark, who drove the truck; and Kenneth Glasgow, the passenger in the truck who was apparently its owner as well. Each of the individual defendants was a citizen and resident of Oregon. Before these cases could come to trial and before other suits were filed in California or elsewhere, petitioner, State Farm Fire & Casualty Company, an Illinois corporation, brought this action in the nature of interpleader in the United States District Court for the District of Oregon.

In its complaint State Farm asserted that at the time of the Shasta County collision it had in force an insurance policy with respect to Ellis Clark, driver of the truck, providing for bodily injury liability up to $10,000 per person and $20,000 per occurrence and for legal representation of Clark in actions covered by the policy. It asserted that actions already filed in California and others that it anticipated would be filed far exceeded in aggregate damages sought the amount of its maximum liability under the policy. Accordingly, it paid into court the sum of $20,000 and asked the court (1) to require all claimants to establish their claims against Clark and his insurer in this single proceeding and in no other, and (2) to discharge State Farm from all further obligations under its policy—including its duty to defend Clark in lawsuits arising from the accident. Alternatively, State Farm expressed its conviction that the policy issued to Clark excluded from coverage accidents resulting from his operation of a truck that belonged to another and was being used in the business of another. The complaint, therefore, requested that the court decree that the insurer owed no duty to Clark and was not liable on the policy, and it asked the court to refund the $20,000 deposit.

Joined as defendants were Clark, Glasgow, Nauta, Greyhound Lines, and each of the prospective claimants. Jurisdiction was predicated upon 28 U.S.C.A. § 1335, the federal interpleader statute, and upon general diversity of citizenship, there being diversity between two or more of the claimants to the fund and between State Farm and all of the named defendants.

(a) You represent Petitioner State Farm Fire & Casualty Co. Plan the interpleader action. Prepare to discuss in class or online.

(b) Draft the necessary interpleader documents.

(c) As judge, decide whether the interpleader action is proper. Do you agree today with the Supreme Court way back when? [State Farm Fire & Casualty Co. v. Tashire,](https://www.westlaw.com/Document/Id39199109be911d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id39199109be911d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 386 U.S. 523 (1967)](https://www.westlaw.com/Document/Id39199109be911d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id39199109be911d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

28. Southern Builders, Inc. of Tennessee, City of Memphis and Continental Casualty Co. have moved to dismiss a cross-claim filed against them by Alexander Marble and Tile Co., a partnership. A.L. Aydelott and A.L. Aydelott and Associates, Inc. have filed a motion to dismiss a third-party complaint filed against them by this same partnership. The contentions are that the cross-claim and third-party complaint are not authorized by the Federal Rules of Civil Procedure.

The original complaint was filed by an Italian corporation, referred to as “LASA”. This complaint, twice amended and supplemented, alleges in substance as follows. Southern Builders, a Tennessee corporation, as principal contractor, entered into a contract in 1962 with the City to build a city hall and under the contract obligated itself to the City to pay for all labor and materials. Southern Builders procured and furnished to the City a statutory performance and payment bond, with Continental Casualty as surety, under which Southern Builders obligated itself to the City to perform the contract and to pay for all labor and materials. Alexander Marble and Tile Co., a partnership, whose partners are Tennessee residents, together with Marble International, Inc., a Texas corporation, as joint-venturers, entered into a subcontract with Southern Builders under which they were to supply all marble and anchoring devices and install the marble. Alexander then contracted with LASA to supply to it all of the marble for a contract price of $468,641.26. The marble was supplied as agreed, and there was a balance due of $127,240.80. . . . The City improperly released retainages to the principal contractor, Southern Builders. LASA therefore sues Alexander . . . Marble International, Southern Builders, Continental Casualty and the City for the alleged balance due.

To this original complaint Alexander (partnership and corporation) filed an answer and counterclaim . . . [in which] they contend that the actual net contract price for the marble was only $265,050.00; that, after LASA had failed to ship marble as agreed and had threatened to cease shipments, the price was then under duress increased, first to $336,030.00 and then to $370,686.90; that a total of $406,967.74 has actually been paid to LASA; that much of the marble that was shipped arrived late, was broken, or was of the wrong type; and that LASA had failed to ship all the marble it was obligated to ship. Alexander by this counterclaim sues LASA for overpayment of the contract price and for unliquidated damages for failure to ship marble as agreed.

To this original complaint, Continental Casualty and Southern Builders have filed answers and Southern Builders has filed a counterclaim. They aver that Southern Builders is obligated to pay only “just and valid” claims for labor and materials and that LASA has no such claim; aver that nothing is owed LASA for marble delivered and installed on this job; deny that the City improperly released any retainages; and aver that LASA failed to ship marble as agreed. Southern Builders by its counterclaim sues LASA for all damages to it because of LASA’s failure to ship marble as agreed to Alexander.

Alexander (partnership) has filed a cross-claim against Southern Builders, Continental Casualty and the City . . . for a balance alleged to be due under its subcontract with Southern Builders.

In the same cross-claim, it further averred that Southern Builders, under the insistence of the architect, A.L. Aydelott, hindered Alexander in the performance of the subcontract. . . . It is further averred that Southern Builders, under the insistence of Aydelott, wrongfully terminated the subcontract, forced Alexander off the job, and brought in another subcontractor that was allowed to finish the job not in accordance with the original specifications (as Alexander had sought) and at an inflated price. It is further averred that Southern Builders and Aydelott injured the business reputation of Alexander by publicly blaming Alexander for many ills not its fault and which were the fault of Southern Builders and Aydelott. Alexander, in this cross-claim, accordingly also sues only Southern Builders for unliquidated damages, actual and punitive.

Southern Builders and Continental Casualty have filed answers to Alexander’s cross-claim against them, and Southern Builders has filed . . . cross-claims against Alexander for any amount it is held to be liable to LASA in the original action. Southern Builders further cross-claims against Alexander for unliquidated damages for not maintaining progress schedules, for faulty materials and workmanship, for overdrawing money pursuant to false project information, and failing generally to follow the specifications, the subcontract, and the general contract.

Alexander has also filed a third-party complaint, which has been once amended, against A.L. Aydelott and Associates, Inc. and against Aydelott, individually, who is its principal officer (hereinafter collectively referred to as “Aydelott”) alleging that they had the architectural contract with the city. . . . It is alleged that Aydelott negligently provided improper specifications and insisted they be followed; negligently failed to require Southern Builders to properly perform its work; wrongfully required Alexander to install marble in inclement weather; willfully refused to approve Alexander’s estimates for work done; wrongfully directed Southern Builders to terminate the subcontract, allowed the new subcontractor at an inflated price; wrongfully misinterpreted the specifications and the subcontract; and wrongfully and maliciously injured Alexander’s business reputation. Alexander sues in this amended third-party complaint for unliquidated actual and punitive damages under the general law and, under a Tennessee statute, for treble damages for inducing Southern Builders to breach the subcontract.

(a) Diagram the parties, pleadings, and motions in this case. (And you thought first year exam questions were unrealistic.)

(b) As counsel for A.L. Aydelott and A.L. Aydelott and Associates, plan the motion to dismiss the third-party complaint.

(c) Draft such a motion and a proposed order and outline a supporting memorandum.

(d) Plan to discuss the issues with opposing counsel during a lawyer meet-and-confer conference and consider optional outcomes. Prepare to discuss in class or online.

(e) Prepare to discuss in class or online retaining the services of a mediator or a special master to assist in resolving these issues.

(f) As judge, decide whether all that has happened is proper (you cannot disqualify yourself), and then you can revisit the distant and still relevant past: *LASA Per l’Industria Del Marmo Societa per *Azioni of Lasa, Italy v. Southern Builders, Inc. of Tenn., 45 F.R.D. 435 (W.D. Tenn. 1967), reversed [414 F.2d 143 (6th Cir. 1969)](https://www.westlaw.com/Document/Ib9b90c528f9d11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ib9b90c528f9d11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

29. Plaintiff is well known as an actress, and in the contract between plaintiff and defendant is sometimes referred to as the “Artist.” Under the contract, dated August 6, 1965, plaintiff was to play the female lead in defendant’s contemplated production of a motion picture entitled “Bloomer Girl.” The contract provided that defendant would pay plaintiff a minimum “guaranteed compensation” of $53,571.42 per week for 14 weeks commencing May 23, 1966, for a total of $750,000. Prior to May 1966 defendant decided not to produce the picture and by a letter dated April 4, 1966, it notified plaintiff of that decision and that it would not “comply with our obligations to you under” the written contract.

By the same letter and with the professed purpose “to avoid any damage to you,” defendant instead offered to employ plaintiff as the leading actress in another film tentatively entitled “Big Country, Big Man” (hereinafter, “Big Country”). The compensation offered was identical, as were 31 of the 34 numbered provisions or articles of the original contract. Unlike “Bloomer Girl,” however, which was to have been a musical production, “Big Country” was a dramatic “western type” movie. “Bloomer Girl” was to have been filmed in California; “Big Country” was to be produced in Australia. Also, certain terms in the proffered contract varied from those of the original. Plaintiff was given one week within which to accept; she did not do so and the offer lapsed. Plaintiff then commenced this action seeking recovery of the agreed guaranteed compensation.

The complaint sets forth two causes of action. The first is for money due under the contract; the second, based upon the same allegations as the first, is for damages resulting from defendant’s breach of contract. Defendant in its answer admits the existence and validity of the contract, that plaintiff complied with all the conditions, covenants, and promises and stood ready to complete the performance, and that defendant breached and “anticipatorily repudiated” the contract. It denies, however, that any money is due to plaintiff either under the contract or as a result of its breach, and pleads as an affirmative defense to both causes of action plaintiff’s allegedly deliberate failure to mitigate damages, asserting that she unreasonably refused to accept its offer of the leading role in “Big Country.”

(a) As Plaintiff Parker’s attorney, plan a motion for summary judgment.

(b) Draft such a motion and include all necessary supporting papers, a proposed order, and outline the legal memorandum in support.

(c) Plan to discuss the summary judgment issues with opposing counsel during a lawyer meet-and-confer conference and consider optional outcomes. Prepare to discuss in class or online.

(d) Prepare to discuss in class or online retaining the services of a mediator or a special master to assist in resolving these issues.

(e) Representing the defendant movie company, outline your memorandum in opposition to summary judgment. What actions can you take to keep material facts in dispute (without breaching legal ethics, of course).

(f) As judge, decide. Then read how you compared to the historical case holding: [Parker v. Twentieth Century-Fox Film Corp.,](https://www.westlaw.com/Document/I4e450bfefadb11d98ac8f235252e36df/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I4e450bfefadb11d98ac8f235252e36df/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 3 Cal. 3d 176, 89 Cal. Rptr. 737, 474 P.2d 689 (1970)](https://www.westlaw.com/Document/I4e450bfefadb11d98ac8f235252e36df/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I4e450bfefadb11d98ac8f235252e36df/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

30. Prepare to discuss in class or online the grounds for temporary injunctive relief.

31. Prepare to discuss in class or online Federal Rule 65(b) regarding temporary restraining orders including procedures.

32. Identify the documents needed to bring a motion for a temporary restraining order, and prepare to discuss in class or online.

33. Prepare to discuss in class or online Federal Rule 65 regarding preliminary injunctions including procedures (also known as temporary injunctions).

34. Identify the documents needed to bring a motion for a preliminary (aka temporary) injunction, and prepare to discuss in class or online.

35. Research the differences and similarities between Federal Rule 65 and the state law applicable in the state of your law school regarding temporary restraining orders. Prepare to discuss them in class or online.

36. Research the differences and similarities between Federal Rule 65 and the state law applicable in the state of your law school regarding preliminary (aka temporary) injunctions. Prepare to discuss them in class or online.

37. You represent the plaintiffs in Luger v. Shade (Case H). You hear through your investigator that Shade is thinking of emulating other noted big-time Wall Street criminals and skipping off to a foreign dictatorship that lacks an extradition treaty with the United States. However, Shade reputedly has large assets in Pine Island and his soon-to-be ex-companion will execute an affidavit confirming the rumor.

(a) Plan a motion for a temporary restraining order and prepare to discuss in class or online.

(b) Plan a motion for emergency attachment, proposed order, the necessary affidavits, and outline the supporting memorandum, and prepare to discuss in class or online.

(c) Draft such documents.

38. As counsel for plaintiff in Giacone v. City of Mitchell (Case D):

(a) Determine what equitable relief, if any, should be sought for plaintiff and prepare to discuss in class or online.

(b) Draft the appropriate motion for a temporary restraining order and temporary injunctive relief, including the proposed order and any additional supporting papers.

(c) Outline the arguments for the memorandum supporting plaintiff’s motion.

(d) Plan to discuss the issues with opposing counsel during a lawyer meet-and-confer conference and consider optional outcomes. Prepare to discuss in class or online.

(e) Prepare to discuss in class or online retaining the services of a mediator or a special master to assist in resolving the issues.

(f) Presume you represent the City of Mitchell. Outline the arguments for the memorandum opposing plaintiff’s motion.

(g) As judge, decide.

39. You are counsel for Shelly Fridley in On Broadway v. Off Broadway (Practice Problem 4, Chapter 12).

(a) Plan an appropriate motion for temporary injunctive relief, including the proposed order and any additional supporting papers and prepare to discuss in class or online.

(b) Draft these documents.

(c) Plan to discuss the issues with opposing counsel during a lawyer meet-and-confer conference and consider optional outcomes. Prepare to discuss in class or online.

(d) Prepare to discuss in class or online retaining the services of a mediator or a special master to assist in resolving the issues.

(e) Presume you represent Terrell Poser. How would you defend this motion? What are your options?

40. Plan the necessary documents seeking a temporary restraining order in a case assigned by your professor and prepare to discuss in class or online.

41. Draft the necessary documents seeking a temporary restraining order in a case assigned by your professor.

42. Plan the necessary documents seeking a preliminary (aka temporary) injunction in a case assigned by your professor and discuss in class or online.

43. Draft the necessary documents seeking a preliminary (aka temporary) injunction in a case assigned by your professor.

44. Prepare to discuss in class or online the grounds supporting a motion to vacate a default judgment.

45. Prepare to discuss in class or online the procedures for a successful motion to vacate a default judgment.

46. Identify the documents needed to bring a motion to vacate a default judgment and discuss in class or online.

47. In LaBelle v. Mitchell Arts Council (Case G), Terry LaBelle sues MAC in Summit district court, which has jurisdiction. Avery Courtnall, a MAC administrator authorized to receive service on behalf of MAC, was properly served with the summons and complaint. MAC failed to answer, and the attorney for LaBelle timely obtained a [Rule 55](https://www.westlaw.com/Document/N01024EB0B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N01024EB0B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) default and a default judgment for the sum certain of $60,000 against MAC.

(a) Presume that after proper service, Avery Courtnall promptly sent an inter-office memo along with the summons and complaint to Fran Barnoff. Subsequently, Barnoff never received the memo or the documents, and it appears they were lost and never found. Courtnall became ill and did not return to MAC until after an answer was due and after the default judgment was entered. You now represent MAC, what can you do? What are the grounds? What is your chance of being successful?

(b) You have been on a legal retainer with MAC for several years and are considered their attorney. Presume that after proper service, you received from Avery Courtnall the summons and complaint several days after MAC was served. In reviewing the documents, you misread the date the documents were served and mis-calculated when an answer was due and entered the wrong answer due date on your calendar. Over the next few weeks, you were involved in a complex civil trial for another client and did not think about the LaBelle lawsuit. After that trial ended (with a resounding victory) you celebrated, reviewed your calendar, and promptly attended to the Labelle lawsuit, only to discover your errors. No one from MAC had contacted you over this period of time. You checked with the court clerk and discovered a default judgment was entered against MAC one week earlier. At this same time, counsel for LaBelle contacted Fran Barnoff demanding payment of the $60,000 judgment. What can you do? What are the grounds? What is your chance of being successful? How do you explain this to MAC and your malpractice carrier?

(c) You represented Terry Labelle and obtained the $60,000 default judgment. In reviewing the judgment while contacting MAC to demand full payment, you realized that you failed to seek recovery for the penalty available under Summit Statute § 181.13 for additional monies for LaBelle. What can you do to seek monetary recovery under the law? What are your options? What is your chance of being successful? How do you explain this to LaBelle?

48. Research the differences and similarities between the Federal Rule 55 and the state law regarding default judgments applicable in the state of your law school. Plan to discuss these in class or online.

49. Research the differences and similarities between the Federal Rule 60 and the state law regarding the vacation of default judgments applicable in the state of your law school. Plan to discuss these in class or online.

50. Draft a summary judgment motion and supporting documents on behalf of TecTrust Wealth Management in Case P and write an opinion ruling on the motion.

51. Draft a summary judgment motion and supporting documents on behalf of ProTectCo Life Insurance in Case O and write an opinion ruling on the motion.

52. Draft a summary judgment motion (whole or partial) and supporting documents on behalf of Mike Mullarkey in Case N.

53. Practice before the Panel is discussed in much greater detail in David F. Herr, Multidistrict Litigation Manual: Practice before the Judicial Panel on Multidistrict Litigation (West 2020 ed.). ↑

54. • See* Hans Zeisel & Thomas Callahan, Split Trials and Time Saving: A Statistical Analysis, 76 Harv. L. Rev. 1606, 1619 (1963). ↑

55. [Moses v. City of Perry, Michigan](https://www.westlaw.com/Document/If0e86830ab6a11eeb7af84059c4429c3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/If0e86830ab6a11eeb7af84059c4429c3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 90 F.4th 501 (6th Cir. 2024)](https://www.westlaw.com/Document/If0e86830ab6a11eeb7af84059c4429c3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/If0e86830ab6a11eeb7af84059c4429c3/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

56. [Link v. Wabash R. Co.,](https://www.westlaw.com/Document/I18d030d89bea11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I18d030d89bea11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 370 U.S. 626 (1962)](https://www.westlaw.com/Document/I18d030d89bea11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I18d030d89bea11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

57. Where dismissal is sought because of failure to obey a discovery order, Rule 37 provides the exclusive means for seeking dismissal. Rule 41(b) is not applicable. SocieteInternationale pour Participations Industrielles et **[Commerciales, S.A. v. Rogers,](https://www.westlaw.com/Document/I64ea1f769c1d11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I64ea1f769c1d11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 357 U.S. 197 (1958)](https://www.westlaw.com/Document/I64ea1f769c1d11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I64ea1f769c1d11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

58. *See, e.g., *Sewell Plastics, Inc. v. Coca-Cola Co., 119 F.R.D. 24 (W.D.N.C. 1988) (denying summary judgment motion despite stack of supporting and opposing documents more than three feet high and noting that much of the material was merely argumentative assertion by counsel). ↑

59. • See *Day v. Krystal Co., 241 F.R.D. 474 (E.D. Tenn. 2007) (Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action). ↑

60. [United States v. Easements & Rts.-of-Way Over 3.94 Acres](https://www.westlaw.com/Document/I726089207fc811eeb6afb557bc85d591/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I726089207fc811eeb6afb557bc85d591/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 701 F. Supp.3d 494](https://www.westlaw.com/Document/I726089207fc811eeb6afb557bc85d591/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I726089207fc811eeb6afb557bc85d591/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (N.D. Miss.). ↑

61. • See, e.g., *Lundeen v. Cordner, 354 F.2d 401 (8th Cir. 1966) (affidavit of neutral nonparty witness conclusive on issue of whether decedent intended to change life insurance beneficiary). ↑

62. [Anderson v. Liberty Lobby, Inc.,](https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 477 U.S. 242 (1986)](https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

63. • See *Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). ↑

64. A court may grant one party judgment as a matter of law (previously known as a “directed verdict”) when it finds the nonmovant’s evidence insufficiently “substantial” to merit jury deliberation (*see *Galloway v. United States, 319 U.S. 372 (1943)), even though this places the judge in the position of doing some weighing of the evidence in order to determine whether nonmovant’s evidence is substantial or merely a scintilla of evidence. This court evaluation of facts and the screening of nonmeritorious claims at trial or after verdict does not violate the Seventh Amendment. ↑

65. [Anderson v. Liberty Lobby, Inc.,](https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 477 U.S. 242 (1986)](https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

66. • See* Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court’s Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 Ohio St. L.J. 96 (1988). ↑
67. • See, e.g., *Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (granting summary judgment to defendant where plaintiff’s evidence of antitrust conspiracy was circumstantial and Court found conspiracy unlikely according to economic theory). ↑

68. Some judges routinely set motions for oral argument and hearing as soon as permitted by the rules and decide motions from the bench or shortly after hearing. Other judges defer decision on summary judgment motions to concentrate on other court business. Where the judge attaches low priority to summary judgment motions, filing the motion will seldom speed resolution of the case. ↑

69. *See *Daniel Kahneman, Thinking, Fast and Slow (2011). ↑

70. For detailed guidance on the means of conducting effective and useful discovery, *see *Roger S. Haydock & David F. Herr, Discovery Practice §§ 17.02–.03 (depositions), 22.01–.02 (interrogatories), and 30.03 & 30.05 (requests for admissions). ↑

71. • See *Erie R. R. Co. v. Tompkins, 304 U.S. 64 (1938). ↑

72. [Fed. R. Civ. P. 56(c)(1)(A) & (B)](https://www.westlaw.com/Document/N1B4C0B30B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N1B4C0B30B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

73. [Catrett v. Johns-Manville Sales Corp.](https://www.westlaw.com/Document/Ifa2dfd22953a11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifa2dfd22953a11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 826 F.2d 33 (D.C. Cir. 1987)](https://www.westlaw.com/Document/Ifa2dfd22953a11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifa2dfd22953a11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(on remand from U.S. Supreme Court): *United States ex rel. Tennessee Valley Auth. v. Easements & Rights-of-Wau Pver 3/04 Acres of Lane, More or Less, in *DeSoto Cnty, Mississippi, 701 F. Supp. 3d 520 (N.D. Miss. 2023). ↑

74. This was the situation in [Catrett v. Johns-Manville Sales Corp](https://www.westlaw.com/Document/Ifa2dfd22953a11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifa2dfd22953a11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[., 826 F.2d 33 (D.C. Cir. 1987)](https://www.westlaw.com/Document/Ifa2dfd22953a11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifa2dfd22953a11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

75. This was the situation in *United States ex rel Tennessee Valley Auth. v. Easements & Rights-of-Wau Pver 3/04 Acres of Lane, More or Less, in *DeSoto Cnty, Mississippi, 701 F. Supp. 3d 520 (N.D. Miss. 2023), where failure to make timely disclosure of an expert precluded receipt of testimony at trial and consideration in deciding summary judgment. ↑

76. • *Celotex Corp. v. Catrett, 477 U.S. 317 (1986). ↑
77. • See *Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir. 1983) (affidavits in opposition to summary judgment may explain deposition testimony but court accorded no weight to affidavit attempting to contradict or rewrite deposition testimony). ↑
78. • See *Spiniello Cos. v. Brico Indus., Inc., 511 F. Supp. 2d 199 (D. Mass. 2007) (finding that summary judgment affidavit of contractor’s counsel, containing bare assertions that seller knew that its products were defective from prior experience but withheld that information from contractor was insufficient to demonstrate that seller engaged in unfair or deceptive trade practices). ↑

79. In some cases, hearsay in affidavits may be considered. *See *Catrett, supra; DiMartini v. Ferrin, 889 F.2d 922 (9th Cir. 1989), opinion amended [906 F.2d 465 (9th Cir. 1990)](https://www.westlaw.com/Document/I6abb55b5972011d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I6abb55b5972011d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (in response to summary judgment motion invoking qualified immunity defense, which prevents discovery, nonmovant may use hearsay via affidavit to oppose the motion). ↑

80. [First Nat’l Bank of Ariz. v. Cities Service Co.,](https://www.westlaw.com/Document/I64e84ab49c1d11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I64e84ab49c1d11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 391 U.S. 253 (1968)](https://www.westlaw.com/Document/I64e84ab49c1d11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I64e84ab49c1d11d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

81. • See *Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir 1983) (citing cases). *Accord *Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703 (3d Cir. 1988). However, an affidavit may be considered and may create a factual issue where it “explains” an internally inconsistent deposition of the affiant. [Kennett-Murray Corp. v. Bone,](https://www.westlaw.com/Document/I1cfc3e6d921211d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1cfc3e6d921211d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 622 F.2d 887 (5th Cir. 1980)](https://www.westlaw.com/Document/I1cfc3e6d921211d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1cfc3e6d921211d9bc61beebb95be672/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
82. • See* Fed. R. Civ. P. 56(d)(1)–(3). ↑

83. But the trial court has discretion to deny a request for additional time to conduct discovery when the summary judgment non-movant has not been diligent in developing facts while it had the chance during the discovery period. See [Swoger v. Rare Coin Wholesalers](https://www.westlaw.com/Document/Ib475655e6dec11e5b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ib475655e6dec11e5b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 803 F.3d 1045 (9th Cir. 2015)](https://www.westlaw.com/Document/Ib475655e6dec11e5b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ib475655e6dec11e5b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

84. • See* [Hotel 71 Mezz Lender LLC v. National Retirement Fund](https://www.westlaw.com/Document/Idd7996b3ae7411e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Idd7996b3ae7411e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 778 F.3d 593 (7th Cir. 2015)](https://www.westlaw.com/Document/Idd7996b3ae7411e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Idd7996b3ae7411e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (where cross-motions are pursued on different theories, trial court abused discretion in granting summary judgment against one movant without giving it notice and opportunity to develop additional evidence demonstrating a genuine dispute of material fact) (“The price a litigant pays for filing a flawed or unconvincing motion for summary judgment ordinarily is denial of the motion, not loss of the case.”). ↑

85. Although material submitted in opposition to summary judgment must ordinarily itself constitute admissible evidence, this is not always required so long as the nonmovant can demonstrate the capacity to produce admissible evidence on the point at trial. *See *Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C. Cir. 1987). *See also *Crawford-El v. Britton, 523 U.S. 574 (1998) (refusing to required that pro se prisoner civil rights plaintiffs satisfy “clear and convincing evidence” standard to proceed with claim). ↑

86. [Veillon v. Exploration Services, Inc.,](https://www.westlaw.com/Document/Ifabbafbf971211d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifabbafbf971211d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 876 F.2d 1197 (5th Cir. 1989)](https://www.westlaw.com/Document/Ifabbafbf971211d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifabbafbf971211d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

87. • Compare* the district court’s disdain for the “conspiracy evidence” of the plaintiffs in [In re Japanese Electronic Products Antitrust Litigation,](https://www.westlaw.com/Document/I480a8290556011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I480a8290556011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 513 F. Supp. 1334 (E.D. Pa. 1981)](https://www.westlaw.com/Document/I480a8290556011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I480a8290556011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) with the benefit of the doubt accorded this evidence by the court of appeals in the same case, [723 F.2d 238 (3d Cir. 1983)](https://www.westlaw.com/Document/I1e352872941311d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1e352872941311d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). A 5–4 Supreme Court decision appeared to view the evidence more from the vantage of the district court, reversing the Third Circuit. [Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp.,](https://www.westlaw.com/Document/I1d196aaa9c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d196aaa9c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 475 U.S. 574 (1986)](https://www.westlaw.com/Document/I1d196aaa9c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d196aaa9c9711d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
88. • See *Kennedy v. Silas Mason Co., 334 U.S. 249 (1948). ↑
89. • See, e.g*., [Scott v. Harris](https://www.westlaw.com/Document/I29543dbcf70711dbafc6849dc347959a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I29543dbcf70711dbafc6849dc347959a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 550 U.S. 372 (2006)](https://www.westlaw.com/Document/I29543dbcf70711dbafc6849dc347959a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I29543dbcf70711dbafc6849dc347959a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(summary judgment for officer who ran fleeing suspect off road causing severe injury); [Plumhoff v. Rickard](https://www.westlaw.com/Document/Ifb07de90e58e11e39488c8f438320c70/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifb07de90e58e11e39488c8f438320c70/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 572 U.S. 765 (2014)](https://www.westlaw.com/Document/Ifb07de90e58e11e39488c8f438320c70/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifb07de90e58e11e39488c8f438320c70/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (summary judgment for officers who shot fleeing driver and passenger multiple times at point blank range); [City of San Francisco v. Sheehan](https://www.westlaw.com/Document/I51cf7fe6fd5811e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I51cf7fe6fd5811e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 575 U.S. 600 (2015)](https://www.westlaw.com/Document/I51cf7fe6fd5811e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I51cf7fe6fd5811e4b86bd602cb8781fa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (summary judgment for officers who stormed apartment of mentally disabled person, shooting multiple times); Taylor v. Banks, 575 U.S. 822, 135 S. Ct. 2042 (2015) (summary judgment for corrections officials failing to prevent inmate’s suicide); [Mullenix v. Luna](https://www.westlaw.com/Document/Ia1bf842186c511e5a807ad48145ed9f1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia1bf842186c511e5a807ad48145ed9f1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 577 U.S. 7 (2015)](https://www.westlaw.com/Document/Ia1bf842186c511e5a807ad48145ed9f1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia1bf842186c511e5a807ad48145ed9f1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)* *(summary judgment for officer purporting to shoot at radiator of fleeing car but hitting driver four times, causing death). But see [Tolan v. Cotton](https://www.westlaw.com/Document/I10ffaddfd41511e390d4edf60ce7d742/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I10ffaddfd41511e390d4edf60ce7d742/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 572 U.S. 650 (2014)](https://www.westlaw.com/Document/I10ffaddfd41511e390d4edf60ce7d742/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I10ffaddfd41511e390d4edf60ce7d742/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (summary judgment reversed on question of excessive force where officer shot plaintiff wrongly accused of auto theft while on foot in his own front yard).

Summary judgment is more common in these cases because the qualified immunity standard turns on whether the defendant officer has violated clearly established law, which the Court has tended to see as a pure question of law rather than the more fact-centered inquiry of whether the force used was nonetheless an unwarranted violation of rights under the circumstances. ↑ 38. * See Kennedy v. Silas Mason Co., 334 U.S. 249 (1948). ↑ 39. [Anderson v. Liberty Lobby, Inc.,](https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 477 U.S. 242 (1986)](https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3a8518e29c9d11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑ 40. Rule 38 and the Seventh Amendment preserve the right to a jury trial as it existed in 1791. For claims that did not exist in 1791, the courts have developed a two-factor analysis. Courts will: (1) find the most closely analogous cause of action that already existed in 1791 and determine whether that claim enjoyed the right to a jury trial; and (2) determine whether the remedy sought is legal or equitable in nature. Whitney v. Bucher Mun. NA, Inc., 745 F. Supp.3d 1 (D. Mass. Aug. 14, 2024)(breach of warranty claim under the Massachusetts Consumer Protection Act provided the right to a jury trial, while the record was not sufficiently developed to determine whether a failure to settle a claim under the Act carried the right to a jury trial). ↑ 41. [Whitney v. Bucher Mun. NA, Inc.](https://www.westlaw.com/Document/I8171adc05bd411efbf7fa77d47142448/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8171adc05bd411efbf7fa77d47142448/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 745 F. Supp.3d 1 (D. Mass.)](https://www.westlaw.com/Document/I8171adc05bd411efbf7fa77d47142448/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8171adc05bd411efbf7fa77d47142448/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑ 42. [McNicholas v. Century Link, Inc.](https://www.westlaw.com/Document/Iea2ca33032d911ee9fa6e12df545b2d9/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Iea2ca33032d911ee9fa6e12df545b2d9/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 2023 WL 4981581 (E.D. Pa.)](https://www.westlaw.com/Document/Iea2ca33032d911ee9fa6e12df545b2d9/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Iea2ca33032d911ee9fa6e12df545b2d9/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑ 43. See **[Kairys v. Southern Pines Trucking, Inc.](https://www.westlaw.com/Document/I8dd346202b2211ee941bc18387ccb42e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8dd346202b2211ee941bc18387ccb42e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 75 F.4th 153 (3d Cir. 2023)](https://www.westlaw.com/Document/I8dd346202b2211ee941bc18387ccb42e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8dd346202b2211ee941bc18387ccb42e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑ 44. When a contract contains an enforceable restrictive covenant or noncompete clause, a court’s grant of specific performance and enforcement of the provision by injunction (an equitable remedy not available when legal/monetary relief would be adequate) is not a preliminary injunction pursuant to Rule 65 (see, e.g., [Walsh v. Curran](https://www.westlaw.com/Document/I1d7621d0f05d11eeb38096d6db04e852/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d7621d0f05d11eeb38096d6db04e852/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 2024 WL 1357600 (M.D. Pa.)](https://www.westlaw.com/Document/I1d7621d0f05d11eeb38096d6db04e852/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d7621d0f05d11eeb38096d6db04e852/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) but the decision would likely satisfy the four considerations of Rule 65 practice. ↑ 45. [555 U.S. 7 (2008)](https://www.westlaw.com/Document/I2c2f54e6b02911ddb7e683ba170699a5/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2c2f54e6b02911ddb7e683ba170699a5/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑ 46. * See Fuentes v. Shevin, 407 U.S. 67 (1972). ↑ 47. [Walsh v. Curran,](https://www.westlaw.com/Document/I1d7621d0f05d11eeb38096d6db04e852/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d7621d0f05d11eeb38096d6db04e852/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 2024 WL 1357600 (M.D. Pa.)](https://www.westlaw.com/Document/I1d7621d0f05d11eeb38096d6db04e852/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I1d7621d0f05d11eeb38096d6db04e852/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑ 48. * See *Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423 (1974). ↑ 49. * See *University of Texas v. Camenisch, 451 U.S. 390 (1981). ↑ 50. [Beacon Theatres, Inc. v. Westover,](https://www.westlaw.com/Document/I2222c2a09bf011d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2222c2a09bf011d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 359 U.S. 500 (1959)](https://www.westlaw.com/Document/I2222c2a09bf011d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2222c2a09bf011d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑ 51. * See New Jersey v. Portash, 440 U.S. 450 (1979) (error for trial court to permit use of immunized grand jury testimony for impeachment). ↑ 52. Entry of default is a prerequisite to obtaining a default judgment. [Dodd v. Huffman](https://www.westlaw.com/Document/I7c5b191006e011ee84c3c07fd3366ff7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I7c5b191006e011ee84c3c07fd3366ff7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 2023 WL 3909668 (M.D. Tenn. June 8, 2023)](https://www.westlaw.com/Document/I7c5b191006e011ee84c3c07fd3366ff7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I7c5b191006e011ee84c3c07fd3366ff7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(denying default judgment when not preceded by entry of default); [Siffert v. Sport Pontoons, LLC](https://www.westlaw.com/Document/I03a54cf056dd11ee9948d2b636a470c4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I03a54cf056dd11ee9948d2b636a470c4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 2023 WL 6064290 (E.D. Ten. July 11, 2023)](https://www.westlaw.com/Document/I03a54cf056dd11ee9948d2b636a470c4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I03a54cf056dd11ee9948d2b636a470c4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(requiring vacating of default judgment where not proceeded by entry of default). See also Timilon Corp. v. Empowerment Just Ctr. Corp., 738 F. Supp.3d 669 (D. Md. 2024) *(outlining procedure for obtaining default judgment and degree of court scrutiny). ↑ 53. [Dodd v. Huffman](https://www.westlaw.com/Document/I32264f60bc1511ed87a4a66854c04769/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I32264f60bc1511ed87a4a66854c04769/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 2023 WL 2354907 (M.D. Tenn.)](https://www.westlaw.com/Document/I32264f60bc1511ed87a4a66854c04769/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I32264f60bc1511ed87a4a66854c04769/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑ 54. [Timilon Corp. v. Empowerment Just. Ctr. Corp.](https://www.westlaw.com/Document/Ie882dc60392811ef9bc1a058ad8d82e2/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie882dc60392811ef9bc1a058ad8d82e2/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 738 F. Supp.3d 669 (D. Md. 2024)](https://www.westlaw.com/Document/Ie882dc60392811ef9bc1a058ad8d82e2/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie882dc60392811ef9bc1a058ad8d82e2/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑