question

provide an affidavit or declaration establishing that expert will create a question of fact

answer

In opposing summary judgment, what does ORCP 47E permit?

question

1. Expert can create question of fact 2. No interlocutory adjudication of nondisputable facts

answer

What are the two big differences between ORCP 47 and FRCP 56?

question

Yes.

answer

Do Oregon courts give any weight to federal summary judgment decisions?

question

Garrison v. Cook (Or 1977) Hussey v. Huntsinger (Or App 1985)

answer

What two cases support that Oregon courts give weight to federal summary judgment decisions?

question

whether the case presents any genuine issue of material fact to be resolved by trial

answer

What does a motion for summary judgment determine?

question

when no reasonable juror could return a verdict for the adverse party on the subject of the motion

answer

When does no genuine issue of material fact exist?

question

in a manner most favorable to the adverse party

answer

From what perspective does a court view the record on summary judgment?

question

if the undisputed facts give rise to inferences susceptible to more than one reasonable conclusion

answer

Sometimes a court will not grant summary judgment even if facts are undisputed. When may that occur?

question

Van Osdol v. Knappton Corp. (Or App 1988)

answer

What court supports that a court will not grant summary judgment if the undisputed facts give rise to inferences susceptible to more than one reasonable conclusion?

question

the undisputed facts lead to only one reasonable conclusion

answer

Put another way, a court can grant summary judgment when the facts are undisputed AND . . .

question

MSJ allows the parties to go outside the pleadings to support motion

answer

What is the major difference between a motion for summary judgment and a motion for judgment on the pleadings or a motion to dismiss for failure to state ultimate facts?

question

A court may treat the complaint as though it were already amended to conform.

answer

What happens when facts appear in affidavits that have not been pleaded but that would justify an amended complaint?

question

the facts alleged in the complaint may not limit the plaintiff's contentions in opposing MSJ

answer

What is an implication of the possibility that a court may treat a complaint as though it were already amended to conform when facts appear in MSJ affidavits that have not been pleaded?

question

when the parties try unpleaded claims by consent

answer

What is another scenario in which pleadings are treated as if they have been amended?

question

No

answer

Is summary judgment proper for attacking the sufficiency of a complaint?

question

Richards v. Dahl (Or 1980)

answer

What case supports that summary judgment is improper for attacking the sufficiency of a complaint?

question

Yes

answer

May summary judgment be rendered on the issue of liability but not damages?

question

No

answer

May a trial court enter summary judgment on its own motion?

question

Yes

answer

If a trial court enters summary judgment on its own motion, is it reversible error?

question

within 20 days from the commencement of the action or after service of a motion for summary judgment by adverse party

answer

When may a plaintiff file for summary judgment?

question

at any time, even before answering

answer

When may a defendant file for summary judgment?

question

MSJ must be filed and served on all parties at least 60 days before the date set for trial.

answer

When must motions for summary judgment be filed relative to trial?

question

Yes

answer

May the trial court change the timing for MSJ relative to trial?

question

20 days

answer

What is the time for responding to MSJ?

question

5 days

answer

What is the time for replying to an MSJ response?

question

file an affidavit to that effect and explaining the reasons

answer

What should a party do if the party cannot produce an opposing affidavit in time to response to MSJ within 20 days?

question

allege a right to attorney fees in the motion

answer

A party may file MSJ instead of an answer. What must that party do vis-a-vis attorney fees?

question

No

answer

If a party files MSJ instead of an answer, but alleges a right to attorney fees only in the supporting memorandum, not the motion, will that suffice?

question

when an amended pleading would be simply dilatory or merely formal and lacking in substantive merit

answer

A court may treat a pleading as if it has already been amended if facts appear in affidavits that would justify amending a pleading. When would a court not allow a request for leave to file an amended pleading?

question

if the proposed amendment adds a new theory of relief

answer

A court may treat a pleading as if it has already been amended if facts appear in affidavits that would justify amending a pleading. When would a court allow a request for leave to file an amended pleading?

question

The court may grant the MSJ to the extent it does not affect the new claim

answer

If a court permits a proposed amendment to the pleading that adds a new theory of relief, what happens to MSJ if it has been filed against the complaint pre-amendment?

question

Rule 23

answer

What rule governs whether a party may be permitted to amend a pleading?

question

when justice so requires

answer

Under Rule 23, when may a party be permitted to amend a pleading by leave of the court?

question

when it would be untimely and prejudicial to the opponent's ability to prepare to meet new facts and theories on the eve of trial

answer

Under Rule 23, under what circumstances may a trial court decide that justice does not require permitting an amendment of the pleading?

question

Probably not.

answer

If a party would not be entitled to amend under Rule 23, may the party circumvent that rule when a summary judgment motion is pending?

question

No.

answer

Has it been clearly established that if a party would not be entitled to amend under Rule 23, the party may not circumvent that rule when a summary judgment motion is pending?

question

Yes

answer

Does a court have discretion to deny a motion to amend a pleading under Rule 23?

question

Not clear--maybe, maybe not.

answer

Does the same discretion authorizing a court to deny a motion to amend a pleading under Rule 23 apply when a court decides to treat a complaint as though it were amended when MSJ affidavits reveal new facts not alleged in original pleading?

question

1. Affidavits, Declarations, Exhibits 2. Depositions and Admissions 3. Inconsistent statements 4. Oral testimony 5. Judicial notice, presumptions 6. Opposing evidence

answer

What kinds of evidence can be used in MSJ proceedings?

question

"An unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact."

answer

What must an affidavit under ORCP 47 E say?

question

actually been retained and rendered an opinion or provided facts that, if revealed by affidavit, would be a sufficient basis for denying summary judgment

answer

What must an expert have done at the time of filing an ORCP 47 E affidavit?

question

all the elements on which the expert will testify

answer

If an ORCP 47 E affidavit goes beyond giving a general statement that the expert will testify to admissible facts or opinions creating an issue of fact and enumerates those facts or opinions on which the expert will testify, what must the affidavit give notice of?

question

that no testimony will be offered on the unlisted subjects

answer

If the ORCP 47 E goes beyond a general assertion and enumerates those facts or opinions on which the expert will testify, and the affidavit does not give notice of all the elements on which the expert will testify, what can the court conclude?

question

state that the ORCP 47 E's enumeration of topics is incomplete

answer

How can someone avoid the problem of permitting the court to conclude that no testimony will be offered on the unlisted subjects if the ORCP 47 E affidavit enumerates those facts or opinions on which the expert will testify but does not give notice of all elements on which the expert will testify?

question

No

answer

May the parties stipulate that the court can decide disputes involving issues of fact on summary judgment?

question

stipulate to a court trial on the record as it exists without further amplification

answer

What can the parties do if they would prefer that a court decide an issue of fact around the time of summary judgment?

question

if it is a fact that under applicable law might affect the outcome of a case

answer

What is a material fact?

question

the party moving for MSJ had to demonstrate the absence of factual dispute

answer

The burden on MSJ has caused vexation. Before the 1999 amendment to the ORCPs, who had the burden on MSJ?

question

The moving party had produced evidence justifying a directed verdict

answer

Before the 1999 amendments, the party opposing a motion for summary judgment had not burden until what happened?

question

The moving party had the initial burden of pointing out lack of material fact

answer

Before the 1999 amendment to the ORCPs, the Oregon and Federal standards for summary judgment differed. Under FRCP 56, there was an initial burden and a burden shift. What was the initial burden?

question

The burden shifted to the non-moving party to produce evidence meeting burden of production on nonmoving party issues.

answer

Before the 1999 amendment to the ORCPs, the Oregon and Federal standards for summary judgment differed. Under FRCP 56, there was an initial burden and a burden shift. What was the burden shift?

question

the issues on which the nonmoving party would bear the ultimate burden of persuasion at trial

answer

Under FRCP 56, the burden shifts the non-moving party to produce evidence meeting burden of production on nonmoving party issues. What are the "nonmoving party issues?"

question

"The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial."

answer

After the 1999 amendment to ORCP 47, what is the rule on burdens?

question

Oregon has imported the federal burden-shifting standard.

answer

What is the likely effect of the 1999 amendment to ORCP 47?

question

set forth specific facts showing there is a genuine issue as to any material fact for trial

answer

When the burden under the 1999 amendment to the ORCP 47 shifts to the non-moving party, what must the non-moving party do?

question

no

answer

May the adverse party satisfy its obligation to set forth specific facts showing a genuine issue of material fact by resting on the pleadings or general denials?

question

"disclose the merits" of its claim

answer

In setting forth specific facts showing there is a genuine issue as to any material fact for trial, what must an adverse party do?

question

expert opinion evidence

answer

What is the only exception to the requirement that admissible evidence be produced to defeat summary judgment if the moving party would otherwise be entitled to it?

question

1. Is there a genuine issue of material fact? 2. If no, whether the moving party is entitled to judgment as a matter of law.

answer

What two questions must a trial court answer to decide summary judgment?

question

objectively reasonable juror

answer

What is the standard for a juror at the summary judgment stage?

question

No

answer

Can the court make credibility determinations at the summary-judgment stage?

question

No. Tolbert (Or 1991).

answer

Can a party create a genuine issue of material by urging "flat disbelief" of the uncontroverted affidavits?

question

produce specific facts about affiant's credibility or show how some fact in the record raises an issue about credibility

answer

To create a genuine issue of material fact by attacking the credibility of an affidavit, what can a party do?

question

no effect

answer

What is the effect of a cross-motion for summary judgment on the question of whether there is a dispute about the facts?

question

no

answer

Is a court bound to grant one of either cross motions for summary judgment?

question

Yes

answer

Can the constitutionality of a statute be determined on summary judgment?

question

Northwest Advancement v. State (Or App 1989)

answer

What case established that he constitutionality of a statute can be determined on summary judgment?

question

1. Far-reaching import 2. A record likely to be less than comprehensive on broad policy questions

answer

A court may defer judgment of the constitutionality of a statute until after trial if the case has (two circumstances) . . .

question

whether the contract is ambiguous

answer

In a contract action, what question is a matter of law?

question

extrinsic evidence of the circumstances under which an agreement was made

answer

In determining whether an ambiguity exists, what may a court consider?

question

there must be language in the agreement susceptible to being construed to carry out the intent

answer

What is a condition on the rule that a court may consider extrinsic evidence of the circumstances under which an agreement was made?

question

Yes

answer

If the wording used by parties to a contract is ambiguous, can a court decide the matter on summary judgment?

question

if no genuine issue of material fact exists regarding the parties' intent

answer

Under what circumstances may a court decide the intent of a contract when the parties used ambiguous wording?

question

determination of the specific terms of a contract

answer

What is not particularly suitable for summary judgment in the general area of contracts?

question

1. Conduct meets duty 2. Injury did not result from risk 3. Affirmative defenses

answer

When may a court grant summary judgment in a negligence case?

question

only when the court is persuaded that all reasonable-minded persons would necessarily conclude that the defendant's conduct was not negligent

answer

When may a court grant summary judgment in a negligence case on the ground that defendant's conduct meets the given duty?

question

when, as a matter of law, the actual injury suffered by the plaintiff did not result from any unreasonable risk created by the defendant's conduct

answer

When may a court grant summary judgment in a negligence case on the ground that the plaintiff's injury did not result from the risk created by defendant?

question

release, res judicata, statute of limitations

answer

What are some examples of affirmative defenses to negligence on which a court may base a summary judgment?

question

Generally, no

answer

Can a party whose motion for summary judgment has been denied move for reconsideration?

question

If the party can do so timely, renew the motion by presenting new material not previously available or discoverable

answer

What can a party whose motion for summary judgment has been denied do?

question

the disposition of a portion of a claim is not a judgment

answer

What is partial summary JUDGMENT a misnomer?

question

an ORDER of partial summary judgment

answer

What should be entered when a summary judgment determination is made for part of a claim?

question

1. Liability in a single claim 2. One or more independent claims of multi-claim litigation

answer

Partial summary judgment is appropriate to summarily resolve . . . [two situations]

question

an order

answer

The document reflecting a ruling granting partial summary judgment should be . . .

question

yes

answer

May a court enter a limited judgment if it resolves one or more claims of multiple-claim litigation?

question

only if the court determines that no just reason exists for delay and directs the entry of judgment under ORCP 67 B

answer

Under what circumstances may a court enter a limited judgment if it resolves one or more claims of multiple-claim litigation?

question

yes

answer

Is a limited judgment disposing of one or more claims on summary judgment appealable?

question

It stays in place.

answer

Sometimes an order granting partial summary judgment does not fully adjudicate a claim or all the interests of at least one party. If an appellate court remands with instructions to vacate the judgment, what happens to the order?

question

ORCP 71 B

answer

Under what rule may a party move to set aside an order of summary judgment?

question

that the judgment was taken through "mistake, inadvertence, surprise, or excusable neglect."

answer

On what grounds may a court set aside an order of summary judgment?

question

Apparently yes

answer

May a plaintiff seek a voluntary dismissal before her claims are cut off by an anticipated or issued summary-judgment ruling?

question

Because the Supreme Court has never decided, and the rule would seem to eviscerate the point of MSJ.

answer

Why is the answer only "apparently yes" to the question whether a plaintiff may seek a voluntary dismissal before her claims are cut off by an anticipated or issued summary-judgment ruling?

question

1. Guerin (Or App 1999) 2. Palmquist (Or App 2003)

answer

What are two Court of Appeals cases supporting that a plaintiff may seek a voluntary dismissal before her claims are cut off by an anticipated or issued summary-judgment ruling

question

ORCP 54 A

answer

Under what rule may a plaintiff seek to voluntarily dismiss her claim while summary judgment is pending or after a summary-judgment ruling has been issued?

question

The plaintiff may refile.

answer

What happens if a plaintiff voluntarily dismisses a claim pending on summary judgment or even rejected in an adverse summary judgment ruling?

question

once

answer

How many times during litigation may a plaintiff voluntarily dismiss her claim before her claims are cut off by an anticipated or issued summary-judgment ruling?

Oregon — Summary Judgment Rule 47 – Flashcards

Unlock all answers in this set

Haven't found what you were looking for?

Search for samples, answers to your questions and flashcards