 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Black v. Abex Corporation12/22/1999
district court-that there is an absence of evidence to support the nonmoving party's case.
Celotex, 477 U.S. at 323-25 (footnote omitted).
[ ] The Supreme Court's holding is a recognition of the difficulty of proving a negative. If the record, after discovery, contains no evidence to support an essential element of the plaintiff's claim, there is no "evidence" the defendant can point to in support of its assertion there is no such evidence. In such a case the rule allows the defendant to put the plaintiff to its proof, without the necessity of a full trial, by merely "pointing out" to the trial court the absence of evidence to support the plaintiff's case. Id. at 325; see Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir. 1995); 11 James Wm. Moore et al., Moore's Federal Practice 56.13 (3d ed. 1999).
[ ] This result finds support in the policy underpinnings of N.D.R.Civ.P. 56. We have often stated N.D.R.Civ.P. 56 is a procedural device allowing the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to the material facts, or if resolving disputed facts would not alter the result. E.g., Ennis v. City of Ray, 1999 ND 104, 5, 595 N.W.2d 305. That policy is best served by allowing the defendant to put the plaintiff to its proof when the record contains no evidence on an essential element of the plaintiff's claim.
[ ] Black asserts a different result is required by Zueger v. Carlson, 542 N.W.2d 92, 94 (N.D. 1996), in which we said " he degree of response required of a party opposing a motion for summary judgment is set by the scope of the motion." Black asserts that, like the plaintiff in Zueger, she "was not required to present evidence supporting the underlying factual allegations of her claims." Id. at 94-95. In Zueger, however, the defendant raised purely legal issues in its summary judgment motion, and did not challenge the factual basis for the plaintiffs' claims. By contrast, in this case the defendants have specifically raised the lack of evidence of fungibility, which is an essential element of Black's market share claims.
[ ] We conclude the motions were properly presented and disposed of as summary judgment motions, and we will apply the relevant standards of review for summary judgment.
2
[ ] Summary judgment is a procedural device for promptly and expeditiously disposing of a controversy without a trial if there is no genuine issue of material fact, or if the law is such that resolution of the factual disputes will not alter the result. Strom-Sell v. Council for Concerned Citizens, Inc., 1999 ND 132, 16, 597 N.W.2d 414. In considering a motion for summary judgment, the court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from that evidence to determine whether summary judgment is appropriate. Swenson v. Raumin, 1998 ND 150, 9, 583 N.W.2d 102. Although the party seeking summary judgment bears the initial burden of showing there is no genuine issue of material fact, the party opposing the motion may not simply rely upon the pleadings, but must present competent admissible evidence which raises an issue of material fact. Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D. 1991). Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of her claim and on which she will bear the burden of proof at trial. Strom-Sell, at 16.
[ ] Black would have the burden of proof at trial on all elements of her market share liability claim, including the burden of pro
Page 1 2 3 4 5 6 7 8 North Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|