Rule 56 Reborn: Recent Developments in Summary Judgment and Their Ramifications

Thomas W. Lyons, Esq.

(Reprinted with permission from the Rhode Island Bar Journal October 1988.)

Introduction

All too frequently lawyers try a case or settle at the courthouse steps when they could prevail through a well-crafted motion for summary judgment. Litigators often underestimate the usefulness and efficacy of summary judgment motions. This article will address some of the most misunderstood aspects of the motion: the correct standard of review and the parties' respective burdens of production in arguing the motion. The article will also provide a few examples of cases in which litigants might wield the motion successfully.

The Federal and Rhode Island Rules of Civil Procedure both provide for summary judgment in identical versions of Rule 56. Recent United States Supreme Court decisions have clarified the Federal Rule in several respects. In Federal Court, a party moving for summary judgment on an issue on which its opponent has the burden of proof need point out only that, after a reasonable period for discovery, the record does not contain sufficient, competent evidence for its opponent to maintain its claim or defense. In this respect the movant' s burden on a motion for summary judgment and the standard of review are the same as on a motion for directed verdict.

Though the language of Rhode Island's Superior Court Rule 56 is the same as the Federal Rule, and therefore ought to be interpreted similarly, it is not clear that Rhode Island courts would apply the rule as the Federal Courts have. No reported Rhode island case has decided expressly what the movant's burden of production is where the movant relies on the absence of evidence in the record. Dicta in some cases may indicate that the movant must affirmatively disprove its opponents claim or defense. Rhode Island courts should apply Rule 56 as the Federal Courts do. This interpretation of the Rule is consistent with the language and purpose of Rule 56 and with the American system of civil litigation.

Under both Federal and Rhode Island case law, once the movant meets its initial burden the opposing party must point to specific, admissible facts in the record or affidavits which establish a genuine, material issue for trial. If the opposing party will have the burden of proof on the issue at trial, it must make a prima facie showing. Its evidence must be significantly probative; a mere "scintilla" of evidence is insufficient to avoid summary judgment.

The United State Supreme Court Decisions

In 1986 the United States Supreme Court issued three decisions clarifying Rule 56. Though there was a dissent in every decision, there was also substantial agreement among all the opinions. Justices Powell, Marshall and O'Connor joined every majority. Only Justice Brennan dissented in every case, and even then, he agreed in large part with the majority's analysis of Rule 56.

The first case, Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp.,1 was an antitrust claim brought by American television manufacturers against Japanese television manufacturers. The plaintiffs alleged that the defendants conspired to drive them from the market by maintaining artificially high prices in Japan and artificially low prices in America. The Federal District Court granted defendants motion for summary judgment.2 The Third Circuit affirmed in part and reversed in part..3 The Supreme Court reversed and remanded holding that plaintiffs had the burden of establishing a material issue as to whether the Japanese manufacturers had entered into an illegal conspiracy which caused the plaintiffs a cognizable injury.4

Justice Powell, writing for the majority, noted that, while the general rule is that inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, the substantive body of law may limit the range of permissible inferences.5 In the circumstances of the case the plaintiffs had to show that the inference of conspiracy was reasonable in light of competing inferences of non-actionable conduct.6

Antitrust theory states that a predatory pricing conspiracy is difficult to maintain because the rewards are highly uncertain and the conspirators have good reason to cheat on each other.7 The Court said that because the long term existence of such a conspiracy was improbable, the plaintiffs had to supply more plausible evidence than was otherwise necessary to defeat the motion.8 The absence of any believable reason to engage in the alleged conspiracy was highly relevant to whether there was a genuine issue of material fact.9 If the defendants had no rational economic motive to conspire and if their behavior was consistent with other "equally plausible explanations," then the alleged conduct did not give rise to an inference of an actionable conspiracy.10

The Supreme Court remanded to the Circuit Court for a determination of whether there was sufficient, unambiguous evidence that the defendants had conspired irrationally.11 In the absence of such evidence, the defendants were entitled to have summary judgment reinstated.12

The dissenters, Justices White, Brennan, Blackmun and Stevens, disagreed with the majority view that the antitrust context altered the standard of review on a motion for summary judgment.13 Moreover, the dissent argued that the plaintiff's expert's report was sufficient to create an issue of fact.14 (The majority found that the expert's assumptions were implausible and inconsistent with record evidence and therefore discounted his report.15) The dissent did not think that the expert's persuasiveness could be decided on a motion for summary judgment.16

The Supreme Court issued its next two decisions, Anderson v. Liberty Lobby, Inc.,17 and Celotex Corp. v. Catrett,18 on the same day, three months after deciding Matsushita. In Celotex Corp. v. Catrett, Justice Rehnquist wrote for the majority and Justice Brennan authored the principle dissent. Justices White, Marshall, Powell and O'Connor joined in the majority opinion. Then-Chief Justice Berger and Justice Blackmun joined in Justice Brennan's dissent. Justice Stevens dissented separately.

Mrs. Catrett brought suit in the District of Columbia alleging that her husband had died due to exposure to asbestos products manufactured or distributed by fifteen named corporations, including Celotex. One year later Celotex moved for summary judgment arguing that the plaintiff had not identified in her answers to interrogatories any witnesses who could testify that her husband had been exposed to Celotex products.

Plaintiff then produced three documents which she said created a genuine issue of material fact on product identification. These documents were: a transcript of her husband's deposition testimony in a worker's compensation proceeding, a letter from one of her husband's employers and a letter from an insurance company to her attorney. The documents supported the argument that plaintiff's husband had been exposed to Celotex products. Celotex argued that all three documents were inadmissible hearsay and could not be considered in ruling on the motion.

A year after the motion was first filed the District Court granted it in an unreported decision. The D.C. Circuit reversed because Celotex had not tried to establish affirmatively by affidavit or otherwise that the decedent was not exposed to Celotex products.19 The Supreme Court reversed and remanded.20

Justice Rehnquist summarized the Court's holding:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will hear the burden of proof at trial.21

Justice Rehnquist noted that the standard of review for summary judgment motions was the same as for directed verdict motions.22

The party seeking summary judgment always has the initial burden of presenting the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions which demonstrate the absence of a material fact.23 However, there is no requirement that the moving party support its motion with an affidavit or other affirmative evidence which disproves the opponent's claim or defense.24

The Court pointed to the language in Rule 56(c) which refers to "the affidavits, if any." Those words indicate that the moving party is not required to present the court with affidavits to buttress its motion.25 Moreover, Rules 56(a) and (b) state that claimant and defendants, respectively, may move "with or without supporting affidavits."26 Dispensing with any necessity for affidavits furthers the purpose of Rule 56 which is to dispose of factually unsupported claims or defenses.27

Trial courts can enter summary judgment sua sponte so long as the losing party is on notice that it must come forward with its evidence and this fact reinforced the Court's decision.28 It would be nonsensical that the District Court could enter summary judgment sua sponte but could not do so on the defendant's motion with an identical record before the courts.29

When the moving party has made a showing that the record lacks evidence to support plaintiff's claim, the plaintiff then has the burden of identifying "specific facts" which create a material issue for trial.30 The opponent may not rely on its pleadings but must point to these specific facts in affidavits, depositions, interrogatory answers, etc.31 In substance, the opposing party's evidence must be admissible at trial, e.g. not hearsay, however, it may be in a form which is otherwise inadmissible, e.g. affidavits.32

Mrs. Catrett had a year which to conduct discovery before defendant initially filed its motion. It was another year before the Court granted the motion. The Court said that plaintiff had ample time to gather the evidence to support her claim.33 Even if she had not, she could have moved under Rule 56(f) either for additional time for discovery or for denial of the motion as premature.34

The Court reiterated that Rule 56 was a worthy feature of Federal procedure:

Summary judgment is property 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."35

The Court said that before "notice" pleading, the motion to dismiss served to weed out factually insufficient claims or defenses.36 However, with the adoption of the new rules of civil procedure the motion for summary judgment is the tool for such weeding.37 Courts should apply Rule 56 to protect all parties from meritless litigation:

Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.38

Justice Brennan restated the movant's burden in his dissenting opinion. He agreed with Justice Rehnquist's analysis (and perhaps summarized it more cogently):

If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the moving parties claim. Second, the moving party may demonstrate to the Court that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.39

This does not mean, however, that the movant can baldly assert that the opponent has no evidence.40 "Such a burden of production is no burden at all and would simply permit summary judgment procedure to be converted into a tool for harassment."41 The moving party must show the absence of evidence, perhaps by deposing the opponent's witnesses, or parsing the documentary evidence or reviewing the answers to interrogatories.42

If the moving party does demonstrate the absence of evidence its opponent must respond by pointing to record evidence which was overlooked by the moving party or by supplying additional evidence.43 The moving party must then attack the adequacy of the evidence upon which its opponent is relying.44 Justice Brennan expressly stated that his analysis and the majority's were consistent.45

He disagreed with the application of the analysis to the facts of the case before the Court.46 Justice Brennan thought that the three documents which plaintiff had produced has raised a material issue of disputed fact.47 Plaintiff had also stated her intention to produce a witness who would testify as to the asbestos products to which her husband had been exposed. Justice Brennan said that Celotex had ignored this material evidence when it should have attacked its sufficiency.48

Anderson v. Liberty Lobby Inc., involved a libel claim against Jack Anderson and his magazine "The Investigator." Plaintiffs, a nonprofit "citizen's lobby," and its founder alleged that articles published in the magazine falsely portrayed them as neo-Nazis, anti-semitic, racist and fascist.

Defendants moved for summary judgment arguing that plaintiffs, as public figures, must show that defendants published with actual malice. Defendants contended that actual malice was absent as a matter of law. They provided the affidavit of the author of two of the articles. The affidavit detailed substantial research and sources for the articles. Plaintiffs argued that the articles contained numerous inaccuracies, that some of the sources were patently unreliable and that an editor of "The Investigator" had told the publisher that the articles were "terrible" and "ridiculous".

The District Court granted the motion for summary judgment.49 The Court of Appeals for the District of Columbia affirmed in part and reversed in part.50 The Circuit Court held that though actual malice must be established at trial by clear and convincing evidence, in opposing a motion for summary judgment the plaintiffs need make only a prima facie showing of actual malice.51

The Supreme Court vacated the Circuit Court's decision and remanded the case.52 Justice White wrote for a majority composed also of Justices Marshall, Blackmun, Powell, Stevens and O'Connor. The Court stated preliminarily that the motion should be granted if there is no "genuine" issue of "material" fact.53 The substantive law determines which facts are material.54 Material facts are only those which may affect the outcome of the suit.55

Moreover, the dispute about the material fact should be "genuine."56 To raise a "genuine" dispute the objection must set forth specific facts which tend to support its claim or defense.57 If the evidence is "merely colorable" or is not "significantly probative" then the Court should grant summary judgment.58 Thus, the Court said the issue was whether, assuming the moving party had properly supported its motion for summary judgment,59 plaintiffs had set forth specific facts creating an issue for trial.60

The Court held that the standard of review was the same as for a motion for directed verdict under Rule 50(a).61 It described the standard of review as "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented."62 Thus, a mere scintilla of evidence in support of plaintiff's case is insufficient; the evidence must be such that the jury could reasonably find for the plaintiff.63

Where the burden of proof is greater to warrant submission to the jury, then the burden in objecting to a summary judgment motion is higher.64 Thus, in rebutting a motion for summary judgment on the issue of actual malice, the plaintiff must present specific facts which would establish actual malice with convincing clarity.65

The Court made clear that credibility, weight of the evidence (if sufficient to reach the jury) and the drawing of legitimate inferences were jury issues.66 The opposing party's evidence is to be believed and all justifiable inferences drawn in its favor.67

Nevertheless, the plaintiff must still produce affirmative evidence to defeat a properly supported motion for summary judgment.68 This is so even where the evidence is likely to be in the defendant's possession, assuming that the plaintiff has had a full opportunity to conduct discovery.69

Justice Brennan wrote a dissent as did Justice Rehnquist. Then-Chief Justice Berger joined in the latter opinion. Justice Brennan claimed that the majority was rewriting the standard of review for all summary judgment motions.70 He argued that the holding cast upon the trial justice the burden of determining whether the inferences drawn from the uncontested facts by the movant were as reasonable as those drawn by the opponent.71 Justice Brennan felt that once plaintiff had made its prima facie case based on evidence satisfying Rule 56(e) no showing by the defendant would warrant entering summary judgment72

The question of whether there was merely a "scintilla" of evidence supporting the complaint or whether it was of sufficient "caliber and quantity" to permit a rational factfinder to find for the plaintiff is a question for the jury, not the judge on a pretrial motion.73 Justice Brennan predicted that the "newly" enunciated standard would turn a summary procedure into a "full blown paper trial on the merits."74

Justice Rehnquist also protested engrafting the requirement of a showing of actual malice by "clear and convincing evidence" into the opposition to summary judgment in a libel case. He questioned whether the distinction between a "preponderance of the evidence" and "convincing clarity" is or could be discernible from the moving and opposing papers.75 Only the factfinder at trial, whether it was judge or jury, could make such a distinction.76

Notwithstanding the dissents in each case, there was much agreement among the justices as the meaning of Rule 56. In two cases, Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., and Anderson v. Liberty Lobby, Inc., much of the disagreement revolved around whether the particular legal context of the case affected the standard of review on a motion for summary judgment. In Celotex Corp. v. Catrett, Justice Brennan explicitly agreed with the majority's general analysis of Rule 56, parting company only in application of the analysis to the facts of the particular case.

This trilogy of cases may be summarized:

The substantive law underlying the parties' controversy determines which facts are material on a summary judgment motion.77

The standard on a motion for summary judgment mirrors the standard on a motion for directed verdict.78

The moving party has the initial burden of identifying those affidavits or portions of the record evidence which support its motion.79

The moving party is not required to negate the existence of facts which may support the objector's claim or defense; it may point to record evidence which indicates that its opponent has no evidence to support its case.80

The objecting party may not rest on its allegations, but must point to specific, admissible facts in the record evidence or affidavits which support its claim or defense.81

The evidence upon which the objector relies need not be in a form which is admissible for trial.82

The objecting party must show more than a "scintilla" of evidence to support its claim or defense, it must show evidence on which a reasonable jury could find for it.83

The objecting party's evidence must be believed and all reasonable inferences drawn in its favor.84

Whether there is a genuine issue for trial may depend on the plausibility of the inferences which the objector wishes to be drawn from the facts.85

Rhode Island Rule 56

Though Rhode Island's Rule 56 is identical in language to the Federal Rule it is not clear that Rhode Island Courts would interpret it identically. The Rhode Island Supreme Court has on one hand stated the "The two rules [State and Federal Rules 56] are identical in all respects"86 and relied on federal cases for analysis of different issues under the Rhode Island rule.87 On the other hand, the Court has said in dicta that a summary judgment motion shall be denied where the movant "in his affidavit fails to establish the absence of a material issue of fact . . ."88 The Court cited a United States Supreme Court decision, Addickes v. S.H. Kress & Co.,89 which the Supreme Court subsequently distinguished in Celotex Corp. v. Catrett.90

The Reporter's Notes indicate that Rhode Island Courts should apply Rule 56 as the Federal Courts do:

This [rule] is the same as Federal Rule 56. The motion for summary judgment is analogous to the motion for judgment on the pleadings provided by G.L 1956, §9-7-2 (repealed by P.L. 1965, CH. 55) . . . Subdivisions (a) and (b) simply provide when a party may move for summary judgment with or without supporting affidavits . . .91

Professor Kent, in his treatise on Rhode Island civil procedure, sheds little light on the proper standard for summary judgment. At one point he comments:

This rule is substantially the same as Federal Rule 56. This rule twice omits the word "a" in the second sentence of Rule 56(c), where it does appear in the federal model. The omissions have no significance.92

This statement supports a construction of Rhode Island's Rule 56 which parallels the federal model. However, in other sections Professor Kent writes: "Rule 56 makes it clear that if the motion is supported by sufficient affidavits or other sworn material . . . [the movant has met its burden]"93 and ". . . if the motion for summary judgment is supported by affidavits as to facts clearly establishing the moving party'' right to judgment . . . [summary judgment should enter]."94 These remarks indicate that Professor Kent may have thought the moving party did have the burden of affirmatively disproving the opponent's case through affidavits.

Elsewhere, Professor Kent, while stating that a motion for summary judgment is comparable to a motion for directed verdict, also cautions that "It is said . . . the moving party bears the burden on a motion for summary judgment, whether or not he would bear the burden of proof on the issue in question at a trial of the case . . .".95 Again, however, this language is susceptible to various interpretations as we do not know what he means by "the burden on a motion . . ." If Professor Kent means the initial burden of production, then his view of Rule 56 may coincide with the United States Supreme Court's interpretation. If he means the burden of proof, then his views contradict the Court's recent rulings.

In short, neither the Reporter's Notes nor Professor Kent's treatise contain an analysis of the precise issue discussed in Celotex Corp. v. Catrett. We must look elsewhere for the answer.

No reported Rhode Island Supreme Court case has held whether a moving party is entitled to summary judgment upon a showing that there is an absence of evidence to support plaintiffs claim. Several decisions deal directly with the questions presented in Anderson v. Liberty Lobby, Inc., i.e. the opponent's burden in responding to a "properly-supported" motion and these cases appear consistent with the holding in Anderson v. Liberty Lobby.96 Other decisions indicate that the Court's analysis of Rule 56 may parallel the U.S. Supreme Court's views on the movant's burden.

As we have seen, the United States Supreme Court has ruled that the federal standard of review for a summary judgment motion is identical to the standard for a directed verdict motion. Various pronouncements from the Rhode Island Supreme Court on the standards of review show that they are also the same in Rhode Island courts:

On a motion for directed verdict, a trial justice must view all the evidence in a light most favorable to the adverse party and is obliged to give such party the benefit of all reasonable and legitimate inferences which may be properly drawn therefrom without sifting or weighing the evidence or exercising the judge's independent judgment as to the credibility of witnesses; and if, after taking such a view, there exist issues upon which reasonable persons might draw conflicting conclusions, he should deny the motion and the issues should be left to the jury to decide.97

Elsewhere, the Court has said of the standard for summary judgment:

. . . the trial justice may not pass upon the weight or credibility of the evidence . . . the lower court must review the pleadings, affidavits, admissions, answers to interrogatories, and other appropriate evidence from a perspective most favorable to the party opposing the motion . . . Consequently if no issues of material fact appear and the moving party is entitled to judgment as a matter of law, the trial justice may enter an order for summary judgment.98

If the standard of review is the same for both motions, the Court may consistently hold that the parties' respective burdens of production are the same under both motions.

Consider the mechanics of a directed verdict motion on an issue on which the objecting party bears the burden of proof. The moving party points out that the objector has adduced no evidence to support a necessary element of the objector's case.99 As a practical matter, the objecting party must then identify the portions of the record at trial which support its legal contentions. The moving party may obtain judgment without disproving its opponents case if its opponent's evidence falls short.100

The same burden of production should apply on a motion for summary judgment. The moving party ought to be able to argue that the record evidence is inadequate to afford its opponent a trial. The court should not require the moving party to disprove its opponents case by its own affidavit or other affirmative evidence. This interpretation of Rule 56 is consistent with the Rule's language, with the Rule's purpose and with the American system of civil litigation.

As we have seen, the language of Rhode Island's Rule 56 mirrors the Federal Rule. The United States Supreme Court unanimously agrees that the language of the Federal Rule does not require the moving party to support its motion with affidavits or other evidence disproving the opponent's case.101

The purpose of Rule 56, like Rule 50, is to weed out factually unsupported claims and defenses. There is no reason to apply the burden of production differently under Rule 56 than under Rule 50. If the objector's evidence is insufficient to get its claim or defense to a jury it should be insufficient to get to trial.

The court should not subject the moving party to the costs of trial if its opponent's case is factually unsupported. Under the so-called American Rule, parties to litigation usually bear their own attorney's fees.102 Thus, the unsuccessful movant may incur substantial, unjustified and unrecoverable legal costs.

Consistent interpretations of Rule 56 by the state and federal courts may also deter forum shopping. Those parties who seek settlement leverage by asserting unsubstantiated claims or defenses may prefer the state courts if it is easier to avoid summary judgment there.

Once the movant has met its burden of production, Rhode Island and Federal Courts agree that the burden then shifts to the opposing party to show specific, admissible, facts which support its case.103 The opponent may not rely on the mere allegations of its complaint to avoid summary judgment.104 Moreover, the opponent must present more than a "scintilla" of evidence:

Although it was not incumbent upon the [opposing party] to disclose the totality of his evidence in the counter affidavit, he should have demonstrated evidence of a substantial nature to dispute the material issues of fact attested to by plaintiff.105 (Emphasis added.)

That the state and federal interpretations are consistent in these respects reinforces the position that the courts should be consistent in analyzing the movant's burden of production.

Unfortunately, some dicta in Rhode Island Supreme Court opinions may have discouraged the Superior Court from granting summary judgment motions. The Supreme Court has occasionally described Rule 56 as a "drastic remedy."106 Webster's defines "drastic" as:

1. acting rapidly and violently, used chiefly of purgatives . . .
2. a: acting with violence or harshness, extreme or radical in effect, vigorous; b: notably severe or vigorous.107

Summary judgment may be a purgative and more rapid than a two week jury trial, but, it is less violent, harsh, severe or vigorous. Those who face such trials against unsupported claims or defenses have every right to avoid them by summary judgment.

Several Ramifications of These Clarifications

These clarifications of Rule 56 highlight a significant change in dispositive motion practice. Litigants may obtain summary judgment in disputes in which the party having the burden of proof cannot make out a prima facie case. For example, summary judgment may be appropriate in personal injury or product liability suits, cases in which state of mind is an issue, such as fraud, cases in which one party is asking the factfinder to draw implausible inferences from the facts, and in commercial cases.

The Federal Courts have already applied this interpretation of Rule 56 and granted summary judgment in personal injury and products liability cases. The First Circuit in Moody v. Maine Central Railroad Co.,108 affirmed the entry of summary judgment where there was no evidence supporting plaintiff's allegation that defendant's harassment had caused plaintiff's mental distress.109 In Fontenot v. Upjohn Co.,110 the Fifth Circuit affirmed a summary judgment where there was no record evidence that defendant's drug had approximately caused a child's birth defect.111

The Rhode Island Supreme Court has frequently upheld directed verdicts in products liability or personal injury cases in which the plaintiff failed to establish its prima facie case. In San Antonio v. Warwick Club Ginger Ale Co.,112 the plaintiff alleged that defendant had negligently bottled and distributed soda water so that when she attempted to open a bottle of defendant's soda water it exploded and her hand was injured.

Plaintiff called defendant's vice-president to testify as to the inspection and handling of its bottles. Plaintiff contended that these procedures were so inadequate as to constitute negligence. Defendant moved for a directed verdict arguing that plaintiff had failed to introduce sufficient evidence to support her allegation of negligence. The Superior Court granted defendant's motion and the Supreme Court affirmed.113

In Plouffe v. Goodyear Tire & Rubber Co.,114 the plaintiffs alleged that defendant's tire was defective and had blown out as they drove resulting in their injuries. Their car and the tire disappeared after the accident. The plaintiff presented no testimony that the tire had improper tread design or sidewall strength or durability. The trial court granted defendant's directed verdict motion. The Supreme Court affirmed, holding that the mere fact of a tire blowout does not establish that the tire was defective.115

Assuming that plaintiffs in both cases had no additional evidence available to them before trial, summary judgment was proper. (The respective opinions do not reflect whether defendants did move for summary judgment). Summary judgment would have averted wasteful trials. While parties have a right to their day in court, that right must be weighed against the opposing parties' right to "secure the just, speedy and inexpensive determination" of their case.116 Rule 56 strikes that balance.

Admittedly, Professor Kent had his doubts:

Less likely is the rendition of summary judgment in personal injury litigation, even if the evidence of "what happened" is set forth in uncontroverted affidavits, for the question as to whether the established conduct falls below the standard of reasonable care is usually a question for the trier of fact . . .117

However, as we have seen, the Rhode Island Supreme Court in the right case, will uphold removing these questions from the factfinders's province. Presumably, it will also uphold, in the right case, summary disposition of these questions.

Summary judgment should also be available in cases in which a person's state of mind is at issue, such as fraud claims. In Anderson v. Liberty Lobby, Inc., the United States Supreme Court upheld summary judgment where the plaintiff was unable to make a sufficient showing of actual malice.118 Fraud, like actual malice, involves a person's mental state and it may be proven based on circumstantial evidence and reasonable references drawn therefrom.119 The inferences may not be based on mere suspicion or conjecture.120

In McGovern v. Crossely,121 the defendants appealed the trial judge's denial of their motion to dismiss plaintiff's claim, pursuant to Rule 41(b)(2), in a non-jury case. Defendants argued that plaintiffs had failed to provide any evidence that defendants had made any material misrepresentation knowingly and with intent to deceive plaintiffs. The Rhode Island Supreme Court agreed. It reversed and held that the trial judge should have granted the Rule 41(b)(2) motion to dismiss.122

Such a motion in a non-jury case is the equivalent of a directed verdict motion in a trial to the jury.123 Thus, a directed verdict motion should prevail on the same record and, accordingly, if plaintiffs adduce only the same evidence in objecting to a summary judgment motion, the court should grant that motion also.

Professor Kent is more optimistic about summary judgment in such cases:

It is frequently said that when decision depends upon a state of mind, summary judgment can be granted only in unusual cases. However, this is so simply because in such cases it is difficult to meet the requirement of the rule that the moving party demonstrate the absence of a genuine issue of fact. And if, after the party opposing the motion has been given every opportunity to probe the movant's mental state, it appears that there is no basis for disputing the movant's contentions, summary judgment should be granted.124

A defendant accused of fraud may move for summary judgment arguing that plaintiff has conducted discovery and found no facts to support its allegations of fraud. The plaintiff would than have the burden of identifying admissible facts from which the fact-finder could reasonably infer fraud. If the facts supported only conjectures or suspicions of fraud then summary judgment should enter.

Federal cases support the argument that the trial court may grant summary judgment if the opposing party seeks to draw unreasonable or implausible inferences from the facts.125 The Rhode Island Supreme Court has held that the Superior Court may grant a directed verdict motion when the opposing party relied on testimony or inferences which were inherently improbable.126

In Economou v. Valley Gas Co., the trial judge had reserved his decision on defendant's directed verdict motion. He granted the motion after the jury returned a plaintiff's verdict. The Supreme Court affirmed finding that the child-plaintiff's testimony as to how she collided with an automobile to be inherently improbable, if not physically impossible.127 Assuming defendant had deposed the child and she told the same story as at trial, then summary judgment should have been available.

Plaintiffs may use summary judgment to strike down meritless defenses. For example, defendant purchases goods from plaintiff but fails to pay despite repeated demands. When plaintiff sues a year after the sale, defendant raises for the first time the defense that the goods were not merchantable. Plaintiff could defeat this defense through a directed verdict motion because defendant did not give timely notice of the alleged breach.128 Similarly, a court should dismiss the defense on plaintiff's summary judgment motion.

A plaintiff in Federal Court has obtained partial summary judgment for the sale price of goods where defendant continued to use and resell the goods despite their alleged defects.129 Judge Lagueux held that defendant's continued use of the goods deprived the plaintiff of any opportunity to reacquire them and constituted an acceptance.130

Conclusion

The three 1986 United States Supreme Court decisions have clarified the parties' respective burdens on a summary judgment motion. When the opposing party will have the burden of proof on an issue at trial, the movant may meet its burden of production by pointing out that the record lacks sufficient evidence for plaintiff to make out its case. The movant having met its burden, the opposing party must identify specific, admissible facts in the record or in affidavits which support its allegations. Rhode Island decisions on the opposing party's burden under Rule 56 have consistently paralleled federal rulings. Rhode Island Courts should be similarly consistent in determining the moving party's burden of production. The language and purpose of Rule 56 support this interpretation. Consequently, plaintiffs and defendants can use Rule 56 in a variety of cases which are commonly considered not susceptible to summary judgment.


Endnotes

1 106 S.Ct. 1348 (1986).

2 513 F.Supp. 1100 (E.D. Pa. 1981).

3 723 F.2d 238 (3rd Cir. 1983).

4 106 S.Ct. at 1362.

5 Id. at 1357.

6 Id.

7 Id. at 1357-58.

8 Id. at 1356.

9 Id. at 1361.

10 Id.

11 Id. at 1362.

12 Id.

13 Id. at 1364.

14 Id. at 1364-65.

15 Id. at 1360 n.19.

16 Id. at 1365.

17 106 S.Ct. 2505 (1986).

18 106 S.Ct. 2548 (1986).

19 756 F.2d 181 (D.C Cir. 1985).

20 106 S.Ct. 2555.

21 Id. at 2552-53.

22 Id. at 2553 citing Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505 (1986).

23 Id. at 2553.

24 Id.

25 Id.

26 Id.

27 Id.

28 Id. at 2554.

29 Id.

30 Id. at 2553.

31 Id.

32 Id. at 2553-54.

33 Id.

34 Id.

35 Id. at 2555.

36 Id.

37 Id.

38 Id.

39 Id. at 2557.

40 Id.

41 Id.

42 Id.

43 Id. at 2558.

44 Id.

45 Id. at 2559.

46 Id.

47 Id. at 2560. The majority did not rule on this issue, neither had the Circuit Court. Justice White stated in his concurring opinion that the Circuit Court should address this issue. Id. at 2556.

48 Id.

49 562 F.Supp. 201 (D.D.C. 1983).

50 562 F.2d 1563 (D.C Cir. 1984).

51 746 F.2d at 1571.

52 Id, at 2515.

53 Id. at 2510.

54 Id.

55 Id.

56 Id.

57 Id.

58 Id. at 2511.

59 Id. The Court did not decide this question and assumed that movants had met the initial burden of production. Id. at 2511 n.4.

60 Id.

61 Id.

62 Id. at 2512.

63 Id.

64 Id. at 2513.

65 Id. at 2514.

66 Id. at 2513.

67 Id.

68 Id. at 2514.

69 Id.

70 Id. at 2515 n. 1.

71 Id. at 2517 n.2.

72 Id. at 2520.

73 Id. at 2519.

74 Id.

75 Id. at 2522.

76 Id.

77 Anderson v. Liberty Lobby, Inc., 106 S.Ct. at 2510.

78 Id. at 2511.

79 Celotex Corp. v. Catrett, 106 S.Ct. at 2553.

80 Id.

81 Id.

82 Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. at 1361.

83 Anderson v. Liberty Lobby, Inc., 106 S.Ct. at 2512.

84 Id. at 2513.

85 Celotex Corp. v. Catrett, 106 S.Ct. at 2553-54.

86 Nichola v. John Hancock Mutual Life Insurance Co., 471 A.2d 945, 947 (R.I. 1984).

87 Id. (time requirement of Rule 56(c)).

88 Id. at 948; Steinberg v. State, 422 A.2d 338, 340 (R.I. 1981).

89 398 U.S. 144 (1970). The D.C. Circuit had relied on Addickes v. S.H. Kress Co., in holding that Celotex had an affirmative duty to disprove Mrs. Catrett's claims. 756 F.2d at 184.

90 Celotex Corp. v. Catrett, 106 S.Ct. at 2554.

91 Superior Court Rule 56, REPORTER'S NOTES.

92 Kent, Rhode Island Civil Procedure, §56.13, (1969).

93 Id. at §56.4.

94 Id.

95 Id.

96 See, eg., Vahno v. General Dynamics, No. 86-106, slip op. (R.I. April 7,1988); Saltzman v. Atlantic Realty Co., Inc., 434 R.I. 1343 (R.I. 1981); Ludwig v. Kowal, 419 A.2d 297 (R.I. 1980).

97 Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. 288, 294-95, 373 A.2d 492, 495 (1977).

98 Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981).

99 FRCP 50(b) and Superior Court Rule 50(b) "A motion for directed verdict shall state the specific grounds therefor."

100 See, e-g., Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. 296, 373 A.2d 496; Bennett v. Public Service Co., 542 F.2d 92, 96-97 (1st Cir. 1976).

101 Celotex Corp. v. Catrett, 106 S.Ct. at 2553 and 2557.

102 6 J. Moore, Moore's Federal Practice, §54.70[1].

103 See, eg., Celotex Corp. v. Catrett, 106 S.Ct. at 2554, Industrial National Bank v. Patriarca, 502 A.2d 336, 338 (R.I. 1985); Nedder v. Rhode Island Hospital Trust, 459 A.2d 960, 962 (P-1. 1983).

104 Id.

105 Ludwig v. Kowal, 419 A.2d 297, 301 (RI. 1980); see also, Saltzman v. Atlantic Realty Co., Inc., 434 A.2d 1343,1345 (RI. 1981) ("At no time, however, did [the counter affidavit] give the substance of any portion of the conversations which would justify an inference that [the movant], when he was speaking as an owner"); cf. Anderson v. Liberty Lobby, Inc., 106 S.Ct. at 2512.

106 See, eg., Ardente v. Horan, 117 R.I. 254, 256-57, 366 A.2d 162, 164 (1976); Hodge v. Osteopathic General Hospital of Rhode Island, 107 RI. 135,141, 265 A.2d 733, 737 (1970).

107 Webster's Third New International Dictionary 686 (1981).

108 No. 85-1960, slip op. (1st Cir. July 15,1987).

109 Id. at 8-9.

110 780 F.2d 1190 (5th Cir. 1986).

111 Id. at 1197-98.

112 104 R.I. 700, 248 A.2d 778 (1968).

113 Id. at 709, 248 A.2d at 782-83.

114 118 RI. 288, 373 A.2d 492 (1977).

115 Id. at 296, 373 A.2d at 496.

116 Superior Court Rule 1.

117 Kent, Rhode Island Civil Procedure, §56.2 (1969).

118 106 S.Ct. at 2515.

119 Fricke v. Fricke, 491 A.2d 990, 994 (RI. 1985).

120 Id.

121 477 A.2d 101 (RI. 1984).

122 Id. at 104.

123 5A J. Moore, Moore's Federal Practice, §50.03[1].

124 Kent, Rhode Island Civil Procedure, §56.2 (1969).

125 See e.g., Matshushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. at 1361.

126 See, eg., Economou v. Valley Gas. Co., 112 R.I. 514, 312 A.2d 581 (1973); Gaudette v. Carter, 100 RI. 259, 214 A.2d 1977 (1965).

127 Economou v. Valley Gas Co., Id. at 521-22, 312 A.2d at 586.

128 See Parillo v. Giroux Co., Inc., 426 A.2d 1313, 1317 (R.I. 1981); San Antonio v. Warwick Club Ginger Ale Co., 104 R.I. at 708, 248 A.2d at 782.

129 J.L. Clark Manufacturing Co. v. Gold Bond Pharmaceutical Corp., 669 F.Supp. 40, 43 (D.R.I. 1987).

130 Id.