Put up or shut up! The flavors of summary judgment

In honor of Monday’s assignment, I’ve posted a new handout on the types of summary judgment, the “put up or shut up” rule. Varying somewhat from Glannon’s approach, I define four (4) types of summary judgment:

  1. Proof of all of my own (the movant’s) elements
  2. Disproof of one or more of my opponent’s (non-movant’s) elements
  3. Absence of proof of one or more of my opponent’s (non-movant’s) elements
  4. The Combo Plate: combining methods# 2 and # 3

See the handout for further details.

Here’s something else for you to think about: why call the rule put up or shut up?

“Put up or shut up” means that at the summary judgment (“SJ”) stage, it’s no longer enough for a pleading party to rest on its unverified allegations. Instead, a properly supported motion for SJ may require the non-movant to pony up materials of record that show the need for a fact-finder. Thus, once the movant meets its initial burden, the non-movant must put up (put forth affidavits or other materials creating a genuine dispute of material fact) or shut up (realize that the claim will be dismissed as a matter of law).

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Photo credits: Photo by Quinn Dombrowski via Creative Commons licenseAttribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) 

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