There are three main ways resolution without trial occurs:

  1. Settlement
  2. Dismissals
    1. Rule 12 – Defendant
    2. Rule 41 – Plaintiff
  3. Judgment
    1. Rule 55 – Default judgment
    2. Rule 56 – Summary Judgment
    3. Rule 50 – Judgment as a matter of law – During trial before the jury deliberates. The main difference is when the motion is presented. The term judgment has the exact same legal effect regardless if it is in default, summary, or as a matter of law.

In the pleading stage, we need to state a claim. State means that there needs to be a sufficient allegation. In discovery, the evidence is gathered to prove that claim. At trial the jury determines the true facts gathered from discovery.

Note that there is an alternative to litigation: arbitration. Arbitration is different than mediation. Mediation is not binding while the results of arbitration is binding on the parties (unless the arbitrator can be proved to be corrupt). Additionally, arbitration does not follow the rules of civil procedure or evidence (unless the parties contractually agree to use those rules). Instead, arbitration has the ability to set the rules. Further, arbitration is confidential. As a result, the general rule is that arbitration benefits corporate defendants. However, and interestingly, corporate defendants are starting to feel sour about arbitration because plaintiffs are starting to win more often. This is leading to corporations to change their terms of conditions from arbitration to court resolution.


Over 95% of cases never make it to trial. Most of these cases settle. Note that somebody always wins a settlement. One party is always going to benefit more than another party.


Dismissals can come from either the plaintiff or the defendant. Most of the time, motions for dismissal occur from the defendant under Rule 12. However, under Rule 41, a plaintiff can voluntarily dismiss their claim as long as they do so before the defendant answers. Why would a plaintiff wish to dismiss? If the judge is looking at the case during a preliminary hearing and the plaintiffs feel like the claim is not in their favor. They could dismiss before the answer is filed to avoid a bad situation.

Usually, motions to dismiss are court orders without prejudice (at least for the first dismissal). That means that the person can refile in accordance with the proper rules. This is different than a judgment where the ruling is final (except for appeals within the same jurisdiction).

Dismissals focus on the sufficiency of facts and legal allegations.

Default Judgment

If a party fails to respond to a complaint within the proscribed timeline, a default judgment may be entered against them. The case below outlines what default judgment is and the steps for obtaining a default judgment against the defaulting party.

Before getting into the case, I want to briefly list out the reasons why a party may choose to default instead of responding to the case:

  1. They are judgment proof (have no collectable assets)
  2. The defendant does not know what default judgment means
  3. There was improper service and the defendant is unaware of the lawsuit

Virgin Records America, Inc. v. Lacey

510 F. Supp. 2d 588 (S.D. Ala. 2007).

Virgin Records is seeking a default judgment against Lacey.


Should the motion for a default judgment be granted?


Rule 55 outlines the procedure for granting a default judgment.

Although disfavored, a default judgment may occur when the “defendant failed to plead or otherwise defend” within the 21 days established by Rule 12. The result of the default is that the defendant accepts the facts of the claim. However, the plaintiff’s complaint must be sufficient to state a claim. In other words, the facts must be tied to the law.

Next the court must consider the remedies. There are two types of remedies:

  1. Damages
    1. Actual
    2. Statutory
  2. Injunctive Relief

Damages may be computed by a hearing but if the calculation is easy, the court can provide a simple calculation of the damages.


Default judgment is granted.


Virgin Records served a complaint upon Lacey’s residence, giving the service to her son. Lacey did not respond to the complaint within the 21 days. As such, the following procedure ensued.

  1. Plaintiffs motion for default judgment
  2. Court clerk enters a “Clerk’s Entry of Default”
  3. Defendant is notified of the entry
  4. Defendant fails to respond within 30 days
  5. Plaintiff seeks entry of default judgment.

Although default is disfavored, the procedure for a default judgment is met and the plaintiff is entitled to obtain a default judgment against the defendant. Failure to make a defense results in accepting the facts. Here, the facts can be associated with a sufficient claim and a default judgment is merited. As for the remedies, the plaintiff chose statutory damages instead of actual. Additionally, the plaintiff chose the minimal possible amount of damages. The claim shows that the damages were merited and because there can be no other calculation, there is no need for a hearing to calculate damages. Additionally, injunctive relief was granted to prohibit the continued copyright infringement.


  1. Default is disfavored but procedure still allows for default judgment.
  2. Default results in the acceptance of the complaint’s facts
  3. Requirement to examine the sufficiency of the claim.
  4. Damages may be calculated without a hearing if the calculation is simple.
Additional Notes

The moment the defendant fails to respond within the prescribed time (20 days in state court, 21 in federal court), they become in default. Importantly, default means that the defendant automatically accepts all allegations in the complaint as true.

Note that there is a difference between default and default judgment. A person may be in default without having judgment ruled against them. At the point of default, the judge has the responsibility to determine if they want to enter a default judgment.

Case Notes


  1. Lacey is sued and does not respond within 21 days.
  2. Plaintiff makes a motion for default judgment.
  3. Clerk enters a “Clerk’s Entry of Default.”
  4. A judgment hearing occurs to determine if judgment is necessary (Lacey did not show up).
    1. Determine the defendant was properly served.
    2. Ensure the plaintiff established the complaint was sufficient to establish the defendant’s liability. In other words, did the complaint sufficiently state a claim.
    3. Determine the available remedies.
  5. If judgment is deemed necessary, then it is entered as a default judgment.

However, Rule 60 can offer a defendant relief from a judgment or order.

“A person may show 1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered evidence that, with reasonable diligence, could not have been discovered in Tim etc move for a new trial; 3) fraud (whether previously called intrinsic or extrinsic [hard to do]); the judgment is void; the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 6) any other reason that justifies relief.”

Summary Judgment

Discovery has become the central period of litigation because of rule 56 which is the rule outlining summary judgment. At summary judgment, the judge does not weigh the credibility of witnesses. Instead, the judge only determines whether the preponderance of the evidence could lead a reasonable jury to rule one way or another. If the claim could go one way or the other, it is supposed to go to trial. Otherwise, the claim is resolved with a summary judgment.

So, a summary judgment is an evaluation of the facts, the merits of the claim.

Additional Notes

The idea for summary judgment is that a plaintiff who fails to prove their claim (meeting the essential elements) should not make it to trial. Although either party could bring a summary judgment, over 90% successful judgments are brought by the defendant. Summary judgment comes in one of two forms:

  1. Full summary judgment
  2. Partial summary judgment

When a plaintiff makes a complaint, there are often both strong claims and weak claims. Partial summary judgment may be then appropriate for the weak claims. In other words, if the defendant wishes to kick out only some of the claims, then the motion is only for partial summary judgment.

If the plaintiff makes it through summary judgment they then have the leverage. Consequently, many cases settle directly after the Rule 56 ruling.

Rule 56

Rule 56(a) Motion for Summary Judgment or Partial Summary Judgment

“A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which summary judgment is sought. 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 entitle to judgment as a matter of law.”

(emphasis added)

(b) Time to file a motion

“Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at anytime until 30 days after the close of all discovery.”

(c) Procedures

The standard used by a judge to determine the Rule 56 outcome is a preponderance of the evidence, “more likely than not.” The evidence needs to show more than 50% confident of the result. Also, known as the reasonable jury standard. Sometimes a few civil cases use the “clear and convincing” standard, requiring a higher confidence level.

Absence-of-Proof Motion

Celotex Corp. v. Catrett

477 U.S. 317 (1986).

Catrett is the plaintiff who won in the court of appeals before this case was appealed by Celotex.


Who has the burden of proof for an absence of proof motion for summary judgment?


Rule 56(a) (c at the time of the case)

“Summary Judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The moving party does not have to negate the plaintiff’s proof. It can, but does not have to. Instead, they can also show that the plaintiff has no proof.


The plaintiff has the burden of proof. Reversed.


Catrett has a husband who passed away and claimed that his death resulted from exposure to products containing asbestos. She sued 15 corporations including Celotex arguing that her husband was exposed to products specifically from these corporations. At the end of discovery, Celotex made a motion for summary judgment saying that Catrett had no proof. In response, Catrett produced three documents claiming that exposure occurred. Consequently, Celotex withdrew the motion. However, they filed a second motion for summary judgment claiming the documents were hearsay and would be inadmissible at trial.

The court of appeals said that Celotex had not disproved the evidence and therefore the trial could go forward.


There are two main ways to obtain a summary judgment for a motion based on the absence of evidence.

First, the moving party can negate the existence of evidence. In this instance, Celotex could provide evidence that the exposure came from a party other than themselves. However, this method is not ideal for Celotex because at trial the plaintiff has the burden of proof. In the previous example, Celotex would have the burden of proof at summary judgment, a situation not ideal to become involved in. Thus, there is a second way the motion for summary judgment may survive.

Second, the moving makes the allegation that there is no evidence and the nonmoving party produce some form of evidence. At that point, the moving party has the obligation to attack the produced evidence. Note, that the nonmoving party is not required to depose their evidence. In this instance, what should have happened was the motion was made, the plaintiff produces the three documents, then the defendants depose the authors of those documents.

Additional Notes

Celotex outlines the standard for summary judgment.

First, the defendant has the burden of showing that there is an absence of showing.

Second, the plaintiff must rebut by pointing out specifically where the evidence sufficient is at. The plaintiff does not need to depose their witness, just point to the evidence.

Houchens v. American Home Assurance

927 F.3d 163 (4th Cir. 1991).

Houchens is the plaintiff. American made a motion for summary judgment which was granted. Consequently, Houchens appeals.


Whether the plaintiff met their burden of proof to show a preponderance of the evidence.


Here, the court adopts the Celotex standard. When there are multiple possibilities with equal probability, the plaintiff has not shown a preponderance of the evidence.


The evidence was lacking. As such, the ruling granting summary judgment is affirmed.


Mr. Houchens was employed by the Federal Aviation Administration (FAA) and had two insurance policies. Significantly, the insurance policies required Mr. Houchen’s to have passed away by accident for the beneficiary to receive the benefits. Mr. Houchens was afforded a week’s worth of vacation. Utilizing this opportunity, he went to Thailand. The record shows Mr. Houchens landed in Thailand but was never heard from since. Numerous efforts by several organizations attempted but failed to find Mr. Houchens.

So, seven years later, Mrs. Houchens went to Virginia court to obtain an order that Mr. Houchens was presumed dead. This order was granted. Then, Mrs. Houchens attempted to obtain the benefits of the life insurance policy from American. However, American refused saying that there was no evidence that Mr. Houchens was dead or that he had died accidentally.

Mrs. Houchens sued for breach of contract and American moved for summary judgment.


The analysis may best be provided quoting directly from the opinion. See below:

“To summarize, Houchens relies on the presumption given her by [section number] of the Virginia Code to establish that Mr. Houchens is dead. She then relies upon the facts surrounding his disappearance as a basis for a jury finding that his death was accidental. However, the meager circumstances would not allow a jury to reasonably conclude that it is more likely that Mr. Houchens died from an accident than in some other manner. Because of the space evidence concerning his disappearance, we cannot say that the district court erred in granting summary judgment in favor of American under the Celotex standard.”

In other words, the plaintiff must show a preponderance of the evidence that the required elements were established. Here, the required element was that the death was caused by an accident. Because other possibilities (murder, suicide, natural causes) could have been reasonably inferred equally as an accidental theory, she failed to meet the necessary standard.

Additional Notes

The key issue in this case is that the life insurance policy only covered accidental deaths. Because of the circumstances of the case, it was impossible to know how Mr. Houchens died (or if he did die if you are into conspiracy theories). There are no witnesses.

For Mrs. Houchens to win, she needed to produce sufficient evidence for a reasonable jury – based on a perponderance of the evidence – that Mr. Houchens died by accident. Here, the evidence is insufficient for any determination. Consequently, the insurance company wins.

The reason why this cannot go to the jury is because there are no essential facts for the jury to make any judgments on.

  1. Suppose one witness says that he shot Mr. Houchens. No other witnesses are present. Is this triable by a jury?
    • No. This was an intentional act which is not covered by the insurance policy. The evidence only benefits the defendant. Result – Summary judgment for the defendant.
  2. There is only one witness who claims he saw Mr. Houchens die in Thailand before he disappeared. Is this triable by a jury?
    • Yes. Although the defendant could question the credibility of the witness, his evidence could be triable (she has met her burden of proof). Result – No summary judgment resulting in a jury trial.
  3. The law says that a person who disappears for 7 years is deemed to have died by accident. There are no witnesses. Is this triable by the jury?
    1. No. Since Mr. Houchens would be deemed dead by accident by default, the defendant needs to show that he did not die by accident. Result – Summary judgment for the plaintiff.

Bias v. Advantage Int’l Inc.

905 F.2d 1558 (D.C. Cir. 1990).

The estate of Bias is the plaintiff. Advantage is the defendant who moved for summary judgment which was granted. Thus, Bias appeals.


Was there enough evidence to present a genuine issue for trial?


This case best illustrates the Celotex standard. The standard is burden shifting.

First, the moving party has the burden to make a prima facie showing to support its claims. That is, the moving party must inform the court of the basis for its motion and point to which parts of the records are lacking a genuine issue of material fact.

Then, the burden shifts to the nonmoving party to show that there is a genuine issue of a material fact. This requirement is more than simply “sowing doubt.” Instead, the nonmoving party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'”


The defendant met their burden and the plaintiff failed to counter. Affirmed.


A young college basketball star (Bias) graduated from college, obtained an agent, and was drafted to the Boston Celtics. Two days after the draft, Bias died from cocaine poisoning.

Bias’s estate is suing the agency for failing to complete two tasks. First, obtain a 1 million dollar life insurance policy. Second, to complete a sponsorship agreement with Reebok.

However, the agency filed for summary judgment countering both claims. First, the 1 million dollar life insurance policy would have been impossible to obtain because Bias was a cocaine user. Second, the sponsorship agreement negotiations began one day before Bias’s death and there would have been no way to complete those negotiations within a day.


Here, the court of appeals adopts the argument presented to, and accepted by, the trial court.

First, the 1 million insurance policy. Advantage produced testimony to show specific instances when Bias had used the drugs. Although the estate produced testimony saying that Bias was not a drug user, all the testimony was general and none of the arguments countered the specific times Bias used the drug. As such, metaphysical theories is not enough to counter. Additionally, every insurance company at some point during the creation of the policy would ask if Bias was a user. As such, no policy insurance would have been awarded.

Second, the endorsement agreement could not have been completed within a day. Reebok testified that even if the agreement was expedited (there was no reason to expedite the agreement in this case), it would not have been signed the same day because it required review from the legal department. Additionally, even the estate’s testimony said that obtaining signatures was unlikely to occur within a day.

Additional Notes

As genuine issue as to a material fact is if there is an absence of evidence where the facts could have gone either way.

Life Insurance Application

“NO” insurer would have given Bias a life insurance policy because of his past drug use. “EVERY” life insurance company asks “AT SOME POINT” during the application process whether the person takes drugs. If the individual lies, then the policy would be void.

So, the question to ask, “is there a genuine issue of material fact that Bias took drugs prior to his actual death?”

Evidence presented by the parents that Bias was not a drug user:

  1. Parents never saw
  2. Coach never saw
  3. Random drug test came back clean

Evidence presented by Advantage that Bias was a previous drug user:

  1. Testimony from two teammates who saw him use drugs (and distributing) at a party.

Although this sounds like contradictory testimony that goes to a jury, summary judgment is granted why? Because the estate’s witnesses failed to contradict the testimony provided by Advantage (e.g. drugs were not used at the home where the parents were; drugs were not used in the locker rooms where the coach was; test was taken at a different time of the party). What should the estate have done? Depose other witnesses who had attended the party and said he did not use drugs. Also, the estate could have questioned the credibility of the witnesses provided by Advantage.

Tolan v. Cotton

572 U.S. 650 (2014).

Tolan is the plaintiff. Summary judgment was awarded in favor of the defendant Cotton, causing Tolan to appeal.


Was summary judgment appropriate?


“The evidence of the nonmoving is to be believed, and all justifiable inferences are to be drawn in his favor.”

For qualified immunity there are two prongs:

  1. Whether the office violated a federal right (searching in light of facts most favorable to the complaining party).
  2. Whether the right was “clearly established” at the time of violation.

Summary judgment is available only if the moving party shows that there is “no genuine issue as to any material facts.”


There is a genuine issue of material fact. As such, the case needs to be remanded and heard for trial.


Tolan and Cooper were driving home when they took a curve fast next to a cop. The officer ran the plate, mistyped one of the characters and mistakenly believed the vehicle was stolen. As such, he stopped the car as it turned into the family’s driveway. The officer drew his weapon and told the individuals to exit the car. Tolan’s parents came outside and tried to talk to the officers but were unsuccessful. Cotton pushed Mrs. Tolan against the garage, Tolan wasn’t happy about it and the officer fired three shots at Tolan.

The disparity in the record exists on several facts. Tolan, his mother, and Cooper argue that the Cotton grabbed and slammed her against the garage door. Cotton argues that he was escorting her when she flipped her arms around. Cotton also said that Tolan rose to his feet in protest, while Tolan says that he rose to his knees (being on the ground after detained).


The trial court made factual determinations that it was “dimly-lit,” the mother “refused orders to remain quiet and calm,” that Tolan was shouting at the officer, and that “Tolan was moving to intervene.”

According to the Supreme Court, these are all instances where there were discrepancies on the record. As such, the trial court ended up determining the facts when it should have been left for the jury. Because there was a genuine dispute, then the case needs to go to trial.

Additional Notes

Was there a genuine issue of triable fact?

Qualified Immunity – Fear of Officer’s life

Summary judgment was granted in trial and the 5th circuit because qualified immunity is a difficult bar to pass. Despite the difficult bar, there were still triable issues (e.g. what was the lighting, actions of the mother, actions of the son, etc.). As such, summary judgment was not merited.

Notice the difference between the Bias case and here in the contradictions provided by the parties. Here, there was a direct contradiction to the key piece of evidence while that was not the instance in Bias.

The other thing to note is that all reasonable inferences are drawn in favor of the nonmoving party. In other words, if the case is a close call, then summary judgment should not be granted. “Tie goes to the nonmoving party.”


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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