Dispositive Motions (Series: Newbie Litigator School)

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Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
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DISCLAIMER
The material in this webinar is for informational purposes only. It should not be
considered legal, financial or other professional advice. You should consult with an
attorney or other appropriate professional to determine what may be best for your
individual needs. While Financial Poise™ takes reasonable steps to ensure the information
it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic.
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MEET THE FACULTY
Moderator:
Mitchell Bryan – Williams, Bax & Saltzman, P.C.
Panelists:
Damian Capozzola – The Law Offices of Damian D. Capozzola
Steven Reingold – Saul Ewing Arnstein & Lehr, LLP
Matthew Christensen – Angstman Johnson
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ABOUT THIS WEBINAR:
Dispositive Motions
Lawyers often tell their clients that while they must prepare as if every case will go to trial,
more than 90% of cases are resolved before trial. If a settlement is not reached, the
resolution typically comes through the court ruling on a dispositive motion. This episode
begins with a look at motions to dismiss, with focus on the still-developing Twombly-Iqbal
standard, and how that standard is put into practice. We then discuss summary judgment
motions. That discussion includes everything from making a summary judgment record to
brief writing, to making a cross-motion for summary judgment. This webinar shines a
light on what happens to the great percentage of cases that don’t make it to trial.
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ABOUT THIS SERIES:
Newbie Litigator School
Has it been a couple of (or more) years since you took Civil Procedure in law school? Or
perhaps you a business owner who has been sued repeatedly and you want to learn a bit
about how the sausage is made.
This series is one of several series (together with the “Newbie Litigator School” Parts 2 and
3) that Financial Poise designed specifically for attorneys who could use a broad-brush yet
pithy refresher about civil litigation fundamentals, with some real world color added in.
The purpose is to introduce different components and phases of litigation, from the basic
rules of civil procedure and evidence, to dispositive motions, through trial, and on to
appeal and post-judgment collection work.
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EPISODES IN THIS SERIES
1/23/19 Episode #1:
The Federal Rules of Civil Procedure
2/27/19 Episode #2:
Discovery Practice
3/27/19 Episode #3:
Dispositive Motions
4/24/19 Episode #4:
Working With Experts
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Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #3:
Depositive Motions
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DISPOSITIVE MOTIONS
What is a dispositive motion?
A dispositive motion is one that, if granted, ends the case with no need for
additional proceedings.
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DISPOSITIVE MOTIONS (cont’d)
Every state is different. Under the Federal Rules, there are three primary types of
dispositive motions:
1. Motions to dismiss under Rule 12
2. Motions for summary judgment under Rule 56
3. Motions for judgment as a matter of law during trial under Rule 50
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MOTIONS TO DISMISS
A motion to dismiss attacks the sufficiency of the plaintiff’s complaint. The
motion proceeds from the assumption that all of the plaintiff’s well-pleaded facts
are true, and argues that despite their assumed truth, the plaintiff cannot state a
claim for relief.
See Fed R. Civ. P. 12(b)(6)
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EXAMPLES OF COMMON MOTIONS
TO DISMISS
• If court lacks subject matter or personal jurisdiction
• If plaintiff’s facts show that the claim has been brought too late, after the statute
of limitations has run.
• If the plaintiff names the wrong defendant (ACME, Inc. instead of ACME Corp.)
• If the plaintiff cannot plausibly allege a required state of mind (discriminatory
intent, intent to deceive, etc.)
• If indispensable necessary party is missing
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MOTIONS TO DISMISS-PROCEDURE
➢ A defendant typically must file her motion to dismiss as the first response to the
plaintiff’s complaint. This motion is filed before an answer, and often filing a
motion to dismiss will stay proceedings and prevent discovery from beginning
until after it is decided.
➢ Whether or not to allow discovery while a motion to dismiss is pending is within
the discretion of the trial judge. If a plaintiff wants to initiate discovery while a
motion to dismiss is pending, he should have a good reason why a delay would
be prejudicial. Is a witness sick? Will the premises of the accident be
redeveloped?
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MOTION TO DISMISS - STANDARD
The standard for deciding a motion to dismiss in federal court has been re-
articulated in recent years:
“The relevant question is not whether a complaint's factual allegations are true.
Rather, it is whether the complaint contains sufficient factual matter which,
accepted as true, to state a claim for relief that is plausible on its face.”
Firestone Financial Corp. v. Meyer (7th Cir. 2015) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678, (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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APPLYING THE PLAUSIBILITY
STANDARD
One challenging application of the plausibility standard comes where the
plaintiff’s allegations concern the actions of the defendants about which the
plaintiff does not have first-hand knowledge.
For example, a plaintiff small business may believe that two of its larger
competitors are conspiring illegally to drive it out of the market. The small
business wants to assert an antitrust conspiracy claim, but because it cannot
know what the two competitors have discussed behind closed doors, how can it
make its complaint “plausible?”
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WITH LEAVE TO RE-PLEAD
From the plaintiff’s perspective, the good news is that most grants of motions to
dismiss are “without prejudice,” which means that the plaintiff will be given an
opportunity to amend her complaint to account for what the judge found to be
deficient. In instances where amending the complaint could not possibly make
the claim plausible, leave may be denied.
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MOTION FOR JUDGMENT ON THE
PLEADINGS
In some cases, after the defendant has answered the complaint and the parties
are at issue, an issue or fact may arise that a party believes can decide the case
without the need for further proceedings. That party can make a motion to have
the case decided on the pleadings, in which the court considers both the
complaint and the answer, but does not consider additional facts adduced in
discovery.
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MOTIONS TO DISMISS-STRATEGIC
CONSIDERATIONS
Sometimes, whether to file a motion to dismiss is clear: the plaintiff’s complaint
is obviously defective, or it is plainly not, even if it is inaccurate.
In other instances, a motion to dismiss might be substantively warranted but
tactically inadvisable. If a motion to dismiss will highlight a flaw in the complaint
that the plaintiff has missed, and if the judge is going to give the plaintiff leave to
re-plead even if the defendant’s motion prevails, then the defendant may chose
not to move to dismiss, and to instead answer and attack the flawed complaint
later in the proceedings.
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MOTIONS FOR SUMMARY
JUDGMENT
A motion for summary judgment is a dispositive motion brought based on
discovery gathered in the case. If one party thinks that the evidentiary record
supports an entry of judgment in their favor without the need for a trial, that
party can ask the court to dispose of the case on a motion for summary
judgment.
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SUMMARY JUDGMENT STANDARD
A motion for summary judgment will be granted if the movant demonstrates that
there are no genuine issues of material fact, and that judgment is warranted in
the movant’s favor as a matter of law.
See Fed. R. Civ. P. 56(a)
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“GENUINE ISSUE OF MATERIAL FACT”
A genuine issue of material fact is one on which each side has collected relevant
evidence, such that the trier of fact (usually the jury) will have to determine
which evidence to believe at trial.
For example, in a fraud case where the plaintiff must prove that the defendant
acted with an intent to deceive, evidence of the defendant’s intentions is likely to
be circumstantial and hotly contested. If there is no evidence of fraudulent
intent, or if the defendant wrote in an email that “I intend to defraud the
plaintiff,” then summary judgment may be warranted. For all cases in between,
however, there is usually a genuine issue of material fact as to the defendant’s
intent.
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JUDGMENT AS A MATTER OF LAW
Even with undisputed facts, summary judgment will not be granted unless the
movant can show that it deserves judgment as a matter of law. For example, a
defendant in a breach of contract case may succeed in convincing the judge that
there are no genuine issues of material fact as to the formation of the contract,
and that the contract is unambiguous. However, if the court’s interpretation of
that contract still leaves open the possibility that the defendant breached,
judgment as a matter of law is inappropriate and summary judgment will be
denied.
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HOW TO SUPPORT A MOTION FOR
SUMMARY JUDGMENT
Summary judgment motions almost always have to be supported by evidence
beyond the lawyer’s arguments. Such evidence usually comes in three forms:
1. Documents produced in discovery
2. Deposition testimony
3. Affidavits from witnesses
See Fed. R. Civ. P. 56(c)(1)(A)
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SUMMARY JUDGMENT EVIDENCE
“A party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.”
Fed. R. Civ. P. 56(c)(2)
In other words, a litigant cannot support or oppose a motion for summary
judgment based on any document it chooses or unsworn witness statements.
Because summary judgment is a means by which a trial is avoided, courts are
careful to ensure that summary judgment decisions are based on evidence that
would be admissible at trial.
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AFFIDAVITS
An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.
Fed. R Civ. P. 56(c)(1).
Litigants regularly submit affidavits in support of or in opposition to motions for
summary judgment. Affidavits may not be used to support legal conclusions, or
for an individual litigant to shortcut the necessary development of a factual
record.
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PARTIAL SUMMARY JUDGMENTS
Under the federal rules, a party may not make a motion for partial summary
judgment. However:
If the court does not grant all the relief requested by the motion, it may enter an
order stating any material fact — including an item of damages or other relief
— that is not genuinely in dispute and treating the fact as established in the
case.
Fed. R. Civ. P. 56(g)
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PARTIAL SUMMARY JUDGMENTS
(cont’d)
In other words, even though you can’t move for partial summary judgment, the
court can grant partial summary judgment. If the court, after reviewing the
summary judgment record, wants to rule that a certain element or measure of
damages is hereby established, it can.
Partial credit: not just for 1st graders.
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SUMMARY JUDGMENT – STRATEGIC
CONSIDERATIONS
Motions for summary judgment are nearly automatic on the defense side. Why
not try to end the case before trial?
Most of the time, moving for summary judgment will be worth a shot. It is,
however, an expensive and time-consuming undertaking if done correctly.
Clients should be sure to be aware of the cost and expense before authorizing a
summary judgment motion as a matter of routine.
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JUDGMENT AS A MATTER OF LAW IN
A JURY TRIAL
If a party has been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim
or defense that, under the controlling law, can be maintained or defeated only
with a favorable finding on that issue.
Fed. R. Civ. P. 50
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JUDGMENT AS A MATTER OF LAW IN
A JURY TRIAL (cont’d)
This motion (and its state-law equivalents) provides a litigant once last chance to
ask the court to decide an issue before the jury does.
Defendants in jury trials will make this motion almost as a matter of course at
the close of the plaintiff’s case in order to avoid having to put on evidence for the
jury to consider.
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ABOUT THE FACULTY
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MITCHELL BRYAN – bryan@wbs-law.com
Mitchell Bryan is a partner in the Chicago law firm of Williams, Bax & Saltzman, P.C. Mitch acts as
litigation and general counsel to a wide variety of corporate, LLC, partnership and high net worth
individual clients, and as an advisor and trial counsel to trustees, corporate board members, board
committees, and other for-profit and nonprofit corporate fiduciaries. Mitch has over 35 years of
extensive trial, appellate and litigation management experience in state and federal courts in several
states, and in private arbitration, covering a broad range of complex commercial, insurance, real
estate, IP, corporate governance, fiduciary, regulatory, professional liability, financial industry and
tax disputes.
Mitch is a graduate of the Washington University School of Law (St. Louis) and earned his
bachelor’s degree at the University of Illinois at Champaign-Urbana. He is a member of the
Litigation and Business law Sections of the American Bar Association, and the Insurance and Trust
Law Committees of the Chicago Bar Association. Mitch has been included among attorneys named
as Illinois Super Lawyers, and is a member of the Illinois Leading Lawyers Network Advisory Board.
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DAMIAN CAPOZZOLA – ddc@ddclaw.com
The Law Offices of Damian D. Capozzola, Los Angeles, CA, August 2013-present
Representing large and small businesses, cities, and individuals in commercial, employment, tort, and
health care matters.
Crowell & Moring LLP, Los Angeles, CA, May 2011 – August 2013
Commercial, health care, and employment matters: Supervising discovery and leading presentations of
evidence and argument in court trials and arbitrations, and providing associated advice.
Epstein, Becker & Green, P.C., Century City, CA, April 2007 – May 2011
Commercial, employment, and health care litigation: Supervising discovery and leading presentations of
evidence and argument in court trials and arbitrations. Kirkland & Ellis, LLP, Los Angeles, CA,
September 1996 – March 2007
Commercial litigation: Diverse practice covering all phases of litigation in contract, tort, bankruptcy,
environmental, employment, and criminal matters. Elected to partnership November 1, 2002.
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STEVEN REINGOLD – Steven.Reingold@saul.com
Steven Reingold is Partner at Saul Ewing Arnstein & Lehr. He handles a broad array of litigation matters for
clients throughout the country, including general commercial litigation and related risk management and
avoidance, management‐side employment counseling and litigation, and business bankruptcy and bankruptcy
litigation. Steven’s litigation and consulting experience includes participating as lead counsel or co‐counsel in
complex commercial and bankruptcy-related disputes resolved through negotiation, mediation, arbitration,
and litigation, as well as advising clients regarding, and drafting documents pertaining to, employment,
contractual, and numerous other business‐related issues.
In his bankruptcy practice, Steven represents debtors, official creditors’ committees, trustees, creditors, and
other interested parties in insolvency proceedings involving companies of varying sizes and industries. In
addition, Steven counsels clients on issues relating to the restructuring of debt and alternatives to bankruptcy,
including out-of-court workouts, sales of assets to strategic buyers, equity infusions, assignments for the
benefit of creditors, and compositions. He also participates, from the initial investigation through the post-trial
stage, in complex commercial and bankruptcy-related litigation matters. Steven has served as an adjunct
professor at New England School of Law, where he taught a class in Legal Research and Writing.
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MATTHEW CHRISTENSEN – mtc@angstman.com
Matt Christensen joined Angstman Johnson in 2008 as an associate attorney. Now a member of the
firm, Matt has a civil litigation practice involving commercial law (finance and secured
transactions), bankruptcy, real property, and business matters. He also has a transactional practice
involving real estate, finance and business matters, including franchising. Matt frequently
represents bankruptcy trustees and other fiduciaries in recovering assets and administering estates.
Prior to joining the firm, Matt was a Junior Partner at a Meridian, Idaho, law firm and also
established a solo practice.
In addition to practicing law, Matt is an adjunct professor at the University of Idaho College of Law
where he teaches international trade/business, real estate transactions and law practice
management courses.
To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/matthew-
christensen/
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QUESTIONS OR COMMENTS?
If you have any questions about this webinar that you did not get to ask during
the live premiere, or if you are watching this webinar On Demand, please do
not hesitate to email us at info@financialpoise.com with any questions or
comments you may have. Please include the name of the webinar in your email
and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily
for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education.
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ABOUT FINANCIAL POISE
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