Alacivpro Ii-09

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Ala. R. Civ. P. 56

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Summary Judgment (a) For Claimant; (b) For Defending Party; (c) Motion and Proceedings Thereon; (d) Case Not Fully Adjudicated on Motion; (e) Form of Affidavits; Further Testimony; Defense Required; (f) When Evidentiary Matter is Unavailable; (g) Affidavits Made in Bad Faith; (dc) District Court Rule

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Ala. R. Civ. P. 56(a)

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(a) For Claimant. Claimants can move for summary judgment thirty (30) days from the commencement of the action or after service of a motion for summary judgment by the adverse party, with or without supporting affidavits.

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Ala. R. Civ. P. 56(b)

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(b) For Defending Party. Defendants can move for summary judgment at any time, with or without supporting affidavits.

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Ala. R. Civ. P. 56(c)

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(c) Motion and Proceedings Thereon. (1) Form of Motion and Statement in Opposition Thereto. Include a narrative summary of the undisputed material facts either in the motion or as an attached exhibit. The narrative summary makes specific references to pleadings, portions of discovery materials, or affidavits and may include citations to legal authority. Attach as exhibits documents not on file. If the opposing party disagrees, then that party shall respond with a similar product. (2) Time. The deadline for the motion is at least ten (10) days before the hearing, less if given consent of the parties concerned. Subject to subparagraph (f) of this rule, any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing. (3) Judgment. Granted ff there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

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Ala. R. Civ. P. 56(d)

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(d) Case Not Fully Adjudicated on Motion. For cases not fully adjudicated on the motion, the court shall designate the appropriate material facts and allow the rest of the trial to continue in light of the designated facts.

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Ala. R. Civ. P. 56(e)

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(e) Form of Affidavits; Further Testimony; Defense Required. Affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referenced are attached. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a party meets the summary judgment burden, the nonmovant must move beyond the pleading to defeat a summary judgment.

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Ala. R. Civ. P. 56(f)

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(f) When Evidentiary Matter Is Unavailable. The court can grant the nonmovant time to find the evidence needed to survive summary judgment.

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Ala. R. Civ. P. 56(g)

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(g) Affidavits Made in Bad Faith. Bad faith motions pay their own way, including possibly attorney's fees.

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Ala. R. Civ. P. 56(dc)

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(dc) District Court Rule. Rule 56 applies in the district courts except that the references to thirty (30) days and ten (10) days are reduced to fourteen (14) days and seven (7) days, respectively.

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9 U.S.C. 1-16

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Federal Arbitration Act

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Ala. Code 6-6-1 thru 6-6-16

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Alabama Arbitration Act

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What was the holding on summary judgment in Buist v. Time Domain Corp., MS 1031396, July 29, 2005) (Ala. 2005) (per curiam)?

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Background: Time Domain investor upset about dilution of his ownership sues Time Domain. Time Domain tries to wiggle out of state claims by arguing federal securities law pre-empts the state claims, and gets a partial summary judgment on the argument. Ala. rejects the wiggle.

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What was the holding on summary judgment in First Nat'l Bank of Birmingham v. Culberson, 342 So. 2d 347, 351 (Ala. 1977)?

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Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. Purchasers of home brought suit to enjoin bank from foreclosing mortgage and for other relief. The Circuit Court, Jefferson County, Harry E. Pickens, J., granted summary judgment in favor of plaintiffs and defendant appealed. The Supreme Court, Beatty, J., held that as to whether bank was a bona fide purchaser, question of fact existed as to the nature of plaintiffs' possession so as to put bank on inquiry regarding plaintiffs' prior equity at time bank took its mortgage. Reversed and remanded.

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What is the lesson on summary judgments from Kerr v. McDonald's Corp., DN 04-14465, October 6, 2005 (11th Cir. 2005)?

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Hit your deadlines in contesting summary judgments.

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What was the holding on arbitration in Adcock v. Adams Homes, LLC, 906 So. 2d 924 (Ala. 2005)?

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Home purchasers brought action against home builder and home warranty company, alleging breach of warranty due to failure to properly grade property to ensure proper drainage. The defendants moved to compel arbitration. The Baldwin Circuit Court, No. CV-03-749, James H. Reid, Jr., J., ordered binding arbitration. Purchasers appealed. Held: (1) Warranty involved interstate commerce (2) agreement mandated arbitration, but (3) arbitration was not binding on the parties

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What was the holding on arbitration in Gayfer Montgomery Fair Co. v. Austin, 870 So. 2d 683 (Ala. 2003)?

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Employee brought wrongful discharge action against employer, and employer filed motion to compel arbitration. The Circuit Court, Lee County, No. CV-02-160, Jacob A. Walker III, J., denied the motion. Employer appealed. The Supreme Court, Harwood, J., held that: (1) arbitration agreement between employer and employee was not unconscionable, and (2) employee's job selling shoes and lingerie and answering phones at employer's department store “involved interstate commerce,” for purposes of the Federal Arbitration Act.

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What is the holding in arbitration in Leeman v. Cook's Pest Control, Inc., 902 So. 2d 641 (Ala. 2004)

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Customers allege fraud, breach of warranty, negligence, breach of contract, and unjust enrichment after termite infestation was discovered in home. Cook's moved to compel arbitration. The Jefferson Circuit Court, No. CV-02-4976, Joseph L. Boohaker, J., granted motion. Customers appealed. Held: (1) arbitration clause was not unconscionable; (2) no contract of adhesion; (3) arbitration was not too expensive; and (4) the arbitration clause itself didn't render agreement unconscionable.

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What is the holding on arbitration in Springhill Nursing Homes, Inc. v. McCurdy, 898 So. 2d 694 (Ala. 2004)

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Former nursing home resident alleges negligence, negligent hiring, and negligent supervision caused her personal injuries while at nursing home. Former resident amended complaint to add cause of action for breach of contract. Nursing home defendants brought motion to compel arbitration based on clause in nursing home's standard admission contract. Former resident dismissed breach-of-contract claim. The Circuit Court, Mobile County, No. CV-02-655, Roderick P. Stout, J., denied the motion to compel arbitration. Nursing home defendants appealed. Held: Plaintiff was not seeking to avail herself of standard admission contract at time court ruled on motion to compel, therefore plaintiff was not required to arbitrate claims.