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Opposition To Motion For Summary Judgment

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I would like to solicit opinions/answers for a few questions I have about the form and substance an opposition for summary judgment should take and, if possible, get a pointer to the rules of court that your opinion is based on. If your opinion is based on practical experience, that's fine.

 

This is Maricopa County Superior Court

The action is civil

 

First; are the Memorandum, statement of facts, and affidavit all one long document (using sequential page numbering) with headers (like this)

 

MEMORANDUM OF POINTS AND AUTHORITIES

 

1 blah blah

2 More blah
 

STATEMENT OF FACTS
 

1 blah

2 blah

 

Or are they separate documents, each with a complete case heading (parties, court, judge, title, etc.)

 

Second question; In my statement of facts do I need to follow their paragraphs? For example:

 

Theirs might read,

 

1  The defendant is a llama that's down.

2  The defendant spit on me.

 

I want to deny "2" but I'm ok with "1" so do/can I,

 

1 Defendant denies Plaintiffs Facts Paragraph 1; I never spit on the plaintiff

2 Defendant was out of town on the date in question (See Exhibit "A")

 

Or do I have to,

 

1 Yup, I'm a LLamaDown

2. Did not!

 

Third; If the plaintiff has included an exhibit and I want to use it in both my statement of facts and my memorandum how do/can I? Do I make a copy of their copy and include it? Do I reference it by name?

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Hi,  In my thread Question About Answer, go to page 9,  post #162.  Harry explains here what you need to deafeat a MSJ.  Go to #180 and you can read my MOSJ. It shows you the format ,  However DO NOT Cross Motion to dismiss.  This is a dispositive motion and will be denied.

 

You have to format yours paragraph by paragraph responding to what they are saying in theirs. I also file a dueling affadavit. Or a Defendant's Sworn Affadavit of Denial.

that was an exhibit.  You could include copies of their exhibits, but  don't know what they are or how you intend to use them?

 

I am also in Sup court.  Hope this helps

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Wells Fargo Bank, NA v. Allen, 292 P. 3d 195 - Ariz: Court of Appeals, 1st Div., Dept. D 2012

 

¶ 15 This case requires us to address a common misconception concerning motions for summary judgment brought by plaintiffs — a misconception reflected in Wells Fargo's contention that the Allens had "failed to satisfy their burden to defeat the entry of summary judgment."

¶ 16 In a contract case, the burden of proof rests solely on the plaintiff. Yeazell v. Copins, 98 Ariz. 109, 116, 402 P.2d 541, 546 (1965). A plaintiff's motion for summary judgment does not operate to shift that burden of proof. Put differently, the mere absence of a genuine dispute of material fact does not automatically entitle a plaintiff to judgmentthe plaintiff must also demonstrate that the evidence entitles it to judgment as a matter of law. Ariz. R. Civ. P. 56©.

¶ 17 We have explained the logical difference between plaintiffs' motions for summary judgment and defendants' motions for summary judgment before. In Comerica Bank v. Mahmoodi, we observed:

    Frequently, a motion for summary judgment involves an assertion by a defendant that the plaintiff has insufficient evidence to meet its burden of production at trial. The well-accepted logic of the argument is that because plaintiff cannot establish a prima facie case worthy of submission to a jury, defendant is necessarily entitled to judgment as a matter of law. The fallacy of [plaintiff's] argument here lies in its assumption that the inverse of the logic underlying a defense motion holds true for a plaintiff's motion. It is not the law that where the plaintiff does establish a case that would warrant submission to a jury, it is necessarily entitled to judgment as a matter of law in the absence of rebuttal evidence by the defense.

The question presented by Wells Fargo's motion, therefore, was not whether the Allens had succeeded in presenting genuine disputes of material fact — it was whether Wells Fargo had presented sufficient undisputed admissible evidence to establish its entitlement to judgment.

¶ 18 To carry its burden of persuasion, a plaintiff who seeks summary judgment must submit "undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of its claim." Mahmoodi, 224 Ariz. at 293, ¶ 20, 229 P.3d at 1035.

 

 

"The question presented by Wells Fargo's motion, therefore, was not whether the Allens had succeeded in presenting genuine disputes of material fact — it was whether Wells Fargo had presented sufficient undisputed admissible evidence to establish its entitlement to judgment."

 

The above shows that a defendant does not have to have evidence to defeat a summary judgment.  A defendant can argue the weakness or inadmissibility of the plaintiff's evidence.

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Howdy folks!Thanks for all of the input.

@Az Piano Lady 14 

I have a copy of the documents you provided in that thread (very kind of you to share) and I have a question or two about them.

I see that in your Memorandum of Points and Authorities you have an (nicely worded) introductory statement also, in your statement of facts (which I notice is a separate document) that you have a "Conclusion"  - I don't see were in the rules of court that comes from. Can you point me in the right direction?

You have to format yours paragraph by paragraph responding to what they are saying in theirs.

Yuck. I hate that idea. Do you have a pointer to a rule that indicates that? I have this

https://govt.westlaw.com/azrules/Document/N0C3AB6B0038E11E2AF0CDFC68D86401B?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29

 

That's rule 56( c ) and the part I'm talking about is:

specifying those paragraphs in the moving party's statement of facts which are disputed, and also setting forth those facts which establish a genuine issue of material fact or otherwise preclude summary judgment in favor of the moving party.

 

It seems to me, because boy do I hate the idea of following their format, that I can draft my document in the order I like, and reference their noise by paragraph when I'm disputing it (I would assume anything I don't dispute is agreed to)

 

For the exhibits, I'm not certain of what all they might include in their motion but I'll bet I want to be able to talk about them in my opposition.

 

@BV80

I agree with your post, and really appreciate your input but... Hmmm. I'm really just looking for rules of format and form. Like, I could have a perfect argument of law and issues of material fact, but if I submit a Denny's kids coloring page with my argument written in multicolor crayon I suspect the court wont pay much attention to it.

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In my thread I also posted the Plaintiff's MSJ.  I was before my Response to theirs.  I formatted mine to oppose theirs. They will all be different depending on what they send you.  There is plenty of case law from AZ to help you when they send it.  Have you completed discovery and sent your disclosure statement???  Also what the judge ruled on in mine was the very important affadavit.

 

In the Plaintiff's response they tried to claim it was self serving. And guess what they were right because I never opened an acct with their assignor ending in xxxx.  And therefore the judge denied their MSJ

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I appreciate all of the participation, you are all great people for taking the time to answer questions!

@Az Piano Lady 14

I thought I had found all of the documents in your thread, but I don't seem to have the affadavit. Can you link me to it?

@debtzapper

Where do I look in AZ Rules (or Federal Rules) for the Rules that guided the creation of that document?

 

Is there some secret rule book out there that only lawyers get to read?

For instance, I crafted the format for my "blank" template that I used for my answer from these rules:

https://govt.westlaw.com/azrules/Document/NC9259780717411DAA16E8D4AC7636430?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29

 

and then there are rules for proposed order and judgments

 

and...

oops, I think I just found an answer to one of my questions.

 

I must say that I'm not in the least worried about the opposition winning this case, and they have not, as of yet, asked the court for a summary judgment. But then... I file my answer tomorrow and I'm certain that within an hour of that they will.

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I appreciate all of the participation, you are all great people for taking the time to answer questions!

@Az Piano Lady 14

I thought I had found all of the documents in your thread, but I don't seem to have the affadavit. Can you link me to it?

@debtzapper

Where do I look in AZ Rules (or Federal Rules) for the Rules that guided the creation of that document?

 

Is there some secret rule book out there that only lawyers get to read?

For instance, I crafted the format for my "blank" template that I used for my answer from these rules:

https://govt.westlaw.com/azrules/Document/NC9259780717411DAA16E8D4AC7636430?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29

 

and then there are rules for proposed order and judgments

 

and...

oops, I think I just found an answer to one of my questions.

 

I must say that I'm not in the least worried about the opposition winning this case, and they have not, as of yet, asked the court for a summary judgment. But then... I file my answer tomorrow and I'm certain that within an hour of that they will.

 

 

Lawyers use books like this for their pleadings.  You could probably read a copy at an AZ law school library

 

http://legalsolutions.thomsonreuters.com/law-products/Treatises/Civil-Trial-Practice-2d-Vols-2-and-2A-Arizona-Practice-Series/p/100028794

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@debtzapper

While I'm at the courthouse, you can bet I'll stop by the law library to find those!

That being said, shouldn't all of this been codified, or is everyone working off of "close enough" standards...

Because that would be weird for a system that insists upon regulation font size, margin size (left right top bottom) etc.

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