July 2015 CA essay Forum

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The following are the rules of law required to write the answer.

The UCC applies the sale of goods. All other contracts are governed by the common law. Goods are things that are moveable at time of identification to the contract.

Where the UCC applies, there are special rules pertaining to merchants. Merchants are persons who deal in or have special knowledge of the kind of goods involved in the transaction.

A valid contract requires offer, acceptance and consideration.

An offer is a manifestation of present intent to enter into a bargain, communicated indefinite and certain terms. Under the UCC, only the quantity terms need be specific. An offer confers the power to create a contract by taking specific action.

In requirements contract the quantity term is considered to be the buyer's requirements and therefore such contracts are considered valid under the UCC.

Under the UCC, a singed written offer by a merchant is irrevocable without consideration for a reasonable time not exceeding 3 months.

Under the UCC, acceptance may be made by any reasonable manner and any reasonable means under the circumstances.

[to be continued]

[A. Nony Mouse]

It's March, and the OP is simply listing black-letter law.

[s1m4]

I. PRESENT ESTATES/INTERESTS
A. FEE SIMPLE ABSOLUTE (FSA)
1. How to create: “O to A” or “O to A and his heirs” (unnecessary)
2. Characteristics: Absolute ownership of potentially infinite duration
a. Freely alienable, devisable, and descendible
3. Future interests? NO. No possible future interest.
a. “O to A”. If A is alive, he is the absolute owner. Bruce Willis rule of property: a living person has no heirs. Thus, while A is alive, he has only prospective heirs, not actual ones (they are powerless b/c they have interest!). And if he is the absolute owner, and has no heirs while alive, then there are no future interests.
B. FEE TAIL
1. How to create: “To A and the heirs of his body”
2. Characteristics: FT would pass directly to grantee’s lineal blood descendants, no matter what.
a. Today, virtually abolished in US. If you try to do a FT, it’s treated as if it’s an FSA.
3. Future Interest? Yes.
a. If it was in O, the grantor > reversion
b. If it was in a 3rd party (someone other than O) > remainder.
C. DEFEASIBLE FEES:
1. Note re All Defeasible Fees
a. Absolute restraints on alienation are void.
i. An absolute restraint on alienation is an absolute ban on the power to sell or transfer that is not linked to a time-limited purpose.
ii. Ex: O conveys “To A so long as she never attempts to sell” >> void!
o =if you try to do this, the provision is stricken > A has an FSA, and O has nothing.
iii. However, lesser restraints on alienation are ok.
o Ex: O conveys “To A so long as she does not attempt to sell until the year 2012, when clouds on the title will be resolved.”
• The restraint here is linked to a reasonable, time-limited purpose. Thus, it is good.
 A has a FSD. O has the possibility of reverter.
o Lesser restraints on alienation that are valid: forfeiture restraints on the transferability of future interests; reasonable restrictions in commercial transactions; rights of first refusal; restrictions on assignment and sublease of leaseholds (e.g., requiring landlord’s consent).
b. Words of mere desire, hope, expectation or intention, are insufficient to create any defeasible fee.
i. Courts disfavor restrictions on the free use of land. Thus, courts will not find a defeasible fee unless clear durational/conditional language is used.
ii. If these types of words are used, A is vested with a FSA, not a defeasible fee.
o Ex: “To A for the purpose of construction a day care center”; “To A with the hope that he becomes a lawyer”; “To A with the expectation that the premises will be used as a gym”
2. Fee Simple Determinable (FSD)
a. Creation: grantor must use clear durational language.
i. “To A for so long as…” “To A during…” “To A until…”
ii. Grantee has an FSD.
iii. Grantor has a possibility of reverter. (future interest)

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[advertising]

Under the UCC, an expression of acceptance is valid valid even though it sates different or additional terms unless acceptance is made conditional upon them.

Under the UCC, among merchants, additional terms will become part of the contract unless the offer expressly limits acceptance to the terms of offer, or the additional term materially alters it, or notice of objection is made within a reasonable time.

Consideration is a promise or act in exchange for a promise or act in which there is legal detriment. The elements are bargained-for exchange and legal detriment.

Under UCC, consideration is found in requirements contract when there is an assumption that the parties will act in good faith.

[advertisement], detriment=[good faith][advertisement]

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My plan

I will post "days" in civ pro for essay purpose as recently they ask about timing although I do not think civ pro will appear, but who knows? Today I want to finish the first question rule of law and post the second question.

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Contracts for the sale of goods of $500 or more fall under the Statute of Frauds and are unenforceable absent a written agreement.

Under the UCC, unless written objection is received within 10 days, a written confirmation between merchants sent within a reasonable time is an exception to the requirement of a writing imposed by the Statute of Frauds.

A written offer signed by the party to be charged suffices as a sufficient memo.

Under the UCC, conduct by the parties which recognizes the existence of a contract is sufficient to establish a contract.

Attempted Modification

Under the UCC, modification of a contract requires no consideration as long as the parties act in good faith. Where the original contract is covered by the Statute of Frauds, any modification must be in writing.

ANTICIPATORY REPUDIATION

Anticipatory repudiation is definite and unequivocal language that a party intends not to perform. The aggrieved party can wait performance or resort to breach remedies.

BREACH

Breach is an unjustified failure to perform an absolute duty. A major or material breach is one that goes to the basis of the bargain. Such a breach occurs where the non-breaching party does not receive the substantial benefit of the bargain. It excuses the injured party's counter-performance and allows a right to damages.

REMEDIES

An aggrieved party under a contract is entitled to his expectation, or the benefit of his bargain. Where a seller breaches, the buyer is entitled to the cost to cover minus the contract price, plus incidentals and consequentials (damages that are reasonably foreseeable at the time of contract).

DETRIMENTAL RELIANCE

Under this theory, the courts will enforce a promise if reliance is reasonable, detrimental and foreseeable, where enforcement is necessary to prevent injustice. [advertising]

REPLEVIN

This theory requires goods identified to the contract and the buyer's inability to cover after reasonable effort.

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Q1(Q2). [July 2004 Q6]

Jack owned the world's largest uncut diamond, the "Star," worth $1 million uncut, but $3 million if cut into finished gems. Of the 20 master diamond cutters in the world, 19 declined to undertake the task because of the degree of the difficulty. One mistake would shatter the Star into worthless fragments.

One master diamond cutter, Chip, studied the Star and agreed with Jack in writing to cut the Star for $100,000, payable upon successful completion. As Chip was crossing the street to enter Jack's premises to cut the Star, Chip was knocked down by a slow moving car driven by Wilbur. Wilbur had driven through a red light and did not see Chip, who was crossing with the light. Chip suffered a gash on his leg, which bled profusely. Though an ordinary person would have recovered easily, Chip was hemophiliac (uncontrollable bleeder) and died as a result of the injury. Chip left a widow, Melinda.

Jack, who still has the uncut Star, engaged Lawyer to sue Wilbur in negligence for the $2 million difference between the value of the diamond as cut and as uncut. Lawyer allowed the applicable statute of limitations to expire without filing suit.

1. What claims, if any, may Melinda assert against Wilbur, and what damages, if any, may she recover? Discuss.

2. What claims, if any, may Jack assert against Lawyer, and what damages, if any, may he recover? Discuss.

Q2 (Q3) [Feb 2004 Q4]

Lori owns a small shopping center. In April 1999, Lori leased a store to Tony. Under the lease, Tony agreed to pay Lori a monthly fixed rent of $500, plus a percentage of the gross revenue from the store. The lease term was five years. In part the lease provides:

Landlord and Tenant agree for themselves and their successors and assigns:

4. Tenant has the right to renew this lease for an additional term of five years, on the same terms, by giving Landlord written notice during the last year of the lease.
5. Tenant will operate a gift and greeting-card store only. Landlord will not allow any other gift or greeting-card store in the center.

In July 2000, Tony transferred his interest in the lease in writing to Ann. Ann continued to operate the store and pay rent.

In February 2003, a drugstore in the shopping center put in a small rack of greeting cards. Ann promptly complained, but Lori did nothing.

Beginning in March 2003, Ann stopped paying in percentage rent, but continued to pay the fixed rent alone. Lori took no action except to send a letter in April 2003 requesting payment of the percentage rent that was due.

In January 2004, Ann sent a letter to Lori requesting that Lori renew the lease according to its terems. Lori denied that she had any obligation to renew.

1. Is Ann entitled to a renewal of the lease? Discuss.

2. Is Lori entitled to the past-due percentage rent from:
a. Ann? Discuss.
b. Tony? Discuss.

Q3 (Q4) [July 2004 Q4]

Victor had been dating Daniel's estranged wife, Wilma. Several days after seeing Victor and Wilma together, Daniel asked Victor to help him work on his pickup truck at a nearby garage. While working under the truck, Victor saw Daniel nearby. Then victor felt gasoline splash onto his upper body. He saw a flash and the gasoline ignited. He suffered second and third-degree burns. At the hospital, he talked to a police detective, who immediately thereafter searched the garage and found a cigarette lighter. Daniel was charged with attempted murder. At a jury trial, the following occurred:

a. Tom, an acquaintance of Daniel, testified for the prosecution that Daniel had complained to Tom that Victor had "burned" him several times and stated that he (Daniel) would "burn him one of these days."

b. Victor testified for the prosecution that, while Victor was trying to douse the flames, Daniel laughed at him and ran out of the garage.

C. At the request of the prosecutor, the judge took judicial notice of the properties of gasoline and its potential to cause serious bodily injury or death when placed on the body and ignited.

In his defense, Daniel testified that he was carrying a gasoline container, tripped, and spilled its contents. He denied possessing the lighter, and said that the fire must have started by accident. He said that he ran out of the garage because the flames frightened him.

d. On cross-examination, the prosecutor asked Daniel, "Isn't it true that the lighter found at the garage had your initials on it?"

The prosecutor urged the jury to consider the improbability of Daniel's claim that he had accidentally spilled the gasoline.

e. During a break in deliberations, one juror commented to the other jurors on the low clearance under a pickup truck parked down the street from the courthouse. The juror measured the clearance with a piece of paper. Back in the jury room, the jurors tried to see whether Daniel could have spilled the gasoline in the way he claimed. One juror crouched under a table and another held a cup of water while simulating a fall. After the experiment, five jurors changed changed their votes and the jury returned a verdict of guilty.

Assume that, in each instance, all appropriate objections were made.

1. Should the court have admitted the evidence in item a? Discuss.
2. Should the court have admitted the evidence in item b? Discuss.
3. Should the court have taken judicial notice as requested in item c? Discuss.
4. Should the court have allowed the question asked in item d? Discuss.
5. Was the jury's conduct described in item e proper? Discuss.

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14 days
-jury demand (after the service of the last pleading directed to the issue that is sought to be tried by a jury)
-time to respond to an amended pleading
-response after motion to dismiss is denied

21 days
- answer between co-defendants (cross-claim)
- answer

28 days
-motion for a new trial (after entry of judgment) v. 14 days (opposing party has to file affidavits)
-renewed motion for judgment as a matter of law

30 days
-appeal(notice of appeal must be filed with the district clerk within 30 days after the judgment or order appealed from is entered).
-ca additur
-response to request to produce documents

60 days

90 days

120 days

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APPEAL

AVAILABILITY OF INTERLOCUTORY REVIEW

An interlocutory order is not applealable. An interlocutory order is an order is an order in a case that does not dispose of the case. I.e., a ruling on the admissibility of a piece of evidence is an interlocutory order.

But a party may appeal, as a matter of right, an interlocutory order or decree that

-grants, continues, modifies, refuses, or dissolves an injunction
-appoints a receiver, or refuses to wind-up a receivership or take steps to accomplish its purpose
-determines the liabilities and rights of the parties to an admiralty case or
-is final in a patent infringement action, except for an accounting.

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STANDARD OF REVIEW

An appellate court employs different standards of review for different types of review.

DE NOVO

An appellate court review of a trial court's determination of a pure issue of law is reviewed using a de novo. No deference to trial court.

ABUSE OF DISCRETION

Admissibility of evidence. Deference to trial court.

CLEARLY ERRONEOUS

Trial court's finding of fact in bench trial. Deference. Significantly. Only reversed if firm conviction that mistake has been committed. If plausible, no reversal.

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Supplemental pleading

The court may permit supplemental pleading even though the original pleading is defective in stating a defense or claim. A supplemental pleading does not supersede an original pleading.

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Rule 11

The paper must state the signer's address, email address, and telephone number.

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Types of sanctions

1) Nonmonetary 2) Penalty into court 3) On motion reasonable attorney fees to movant

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Monetary sanction: the court must issue order to show cause with regard to the matter

If against a represented party with regard to existing or establishing law or non-frivolous (extending, modifying, reversing): not permitted

CA: 1) due diligence 2) 21 day includes court's own motion 3) when motion for sanctions is for improper purpose, it is subject to sanctions

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Rule 20 (permissive) (a)(1)/(2) right to relief asserted by/against jointly severally or same transaction or occurrence (series) and question of law or fact common

-the same relief need not be demanded among the joined plaintiffs or against the joined defendants

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20

To avoid unfairness or hardship, the court may order separate trials.

SMJ

Ds: no SJ in permissive joinder based on diversity jur if there is no diversity
Ps: SJ permitted to overcome amount but not lack of diversity

PJ and V must be met.

19

Compulsory

J V must be met

(Necessary:Required) if P S V met and if 1) complete relief 2) impair 3) inconsistent
-not joint tortfeasors (SC) *P: may be served within 100 miles from where the summons was issued.

(Indispensable:Dismissed) when no V/J: proceed or be dismissed (in equity and good conscience)
factors 1) extent of prejudice to person or parties in absence 2) extent of reduction of prejudice by shaping relief 3) judgment adequate in absence 4) P's remedy adequate if action dismissed

CA: Joinder of Ps 1) Ps are asserting relief that arose from same transaction, occurrence, or series of transactions or occurrences and a common question of law of fact will arise; or 2) They have claim adverse to the defendant. Similar rules apply to permissive joinder of defendants.

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Question 1
A State X statute prohibits the retail sale of any gasoline that does not include at least 10
percent ethanol, an alcohol produced from grain, which, when mixed with gasoline,
produces a substance known as “gasohol.” The statute is based on the following legislative
findings: (1) the use of gasohol will conserve domestic supplies of petroleum; (2) gasohol
burns more cleanly than pure gasoline, thereby reducing atmospheric pollution; and (3) the
use of gasohol will expand the market for grains from which ethanol is produced.
State X is the nation’s largest producer of grain used for making ethanol. There are no oil
wells or refineries in the state.
Oilco is an international petroleum company doing business in State X as a major retailer
of gasoline. Oilco does not dispute the legislative findings underlying the statute or the
facts concerning State X’s grain production and lack of oil wells and refineries. Oilco,
however, has produced reliable evidence showing that, since the statute was enacted, its
sales and profits in State X have decreased substantially because of its limited capacity to
produce gasohol.
Can Oilco successfully assert that the statute violates any of the following provisions of the
United States Constitution: (1) the Commerce Clause, (2) the Equal Protection Clause, (3)
the Due Process Clause, and (4) the Privileges and Immunities Clause? Discuss.

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Feb 2005 Q1 (Released answer A) http://calweasel.com/sites/default/file ... nswers.pdf
Oilco is asserting that the State X statute violates the 1) Commerce Clause, 2) the Equal
Protection Clause, 3) the Due Process Clause, and 4) the Privileges and Immunities
Clause of Article IV.
Justiciability
Standing
In order to successfully bring an action, Oilco must demonstrate that they have standing.
A party has standing where there is injury, the injury is caused by the defendant, and the
court can provide relief. Here, Oilco will be injured by the legislation because they do
business in State X and do not currently meet the State’s gasoline regulations. Oilco could
lose profits from loss of business. The loss of profits is directly caused by the statute’s ban
on non-ethanol based gasoline. The court can provide relief for Oilco by invalidating the
statute. Thus, Oilco has standing.
Eleventh Amendment
The Eleventh Amendment prohibits a party from suing a state without the state’s
permission. It appears from the facts that Oilco is suing State X and thus would be barred
by the Eleventh Amendment. If Oilco sues the appropriate official, the suit will not be
barred by the Eleventh Amendment.
Ripeness
The courts will not hear a case unless there is some threat of immediate injury caused by
the defendant. Here, the statute could result in a significant loss of profits for Oilco, so the
State’s argument for dismissal based on ripeness will fail.
Commerce Clause
The Commerce Clause grants the federal government power to regulate the channels and
instrumentalities of commerce, and other activities that affect interstate commerce. If a
valid federal law under the commerce clause conflicts with state law, the federal law
invalidates the state law because of the Supremacy Clause. Even if the federal law and
state law do not conflict, the federal law may preempt the state law by occupying the field.
Where Congress is silent on a matter, a state has the power to regulate the local aspects
of commerce as long as the regulation is not discriminatory and does not unduly burden
interstate commerce.Here, there are no facts suggesting that there is a federal law that either conflicts with the
State X statute or preempts the field. Thus, State X’s statute will be valid as long as it does
not discriminate against out-of-state interests and does not unduly burden interstate
commerce.
Discrimination against out[-]of[-]state interests
The Dormant Commerce Clause prohibits a state from discriminating against out-of-state
interests. Discrimination can appear on the face of a regulation, or it can be discriminatory
in its impact on interstate commerce. Here, the statute prohibits the retail sale of any
gasoline that does not include at least 10 percent ethanol, an alcohol produced from grain,
which, when mixed with gasoline, produces a substance known as gasohol. State X will
argue that [t]he statute on its face does not discriminate against any out[-]of[-]state
interests, as any other state meeting these requirements would not be prohibited from

However, Oilco’s strongest argument will be that the Statute has a discriminatory impact.
Here, Oilco will argue that State X is the nation’s largest producer of grain used for making
ethanol. Oilco will also point out that State X has no oil wells or refineries inside State X.
Putting these two facts together, Oilco will argue that by passing the statute, State X is
promoting its own interests by encouraging the consumption of ethanol while harming outof-state
oil refineries and wells. Since State X has no oil refineries or wells, they will not
be harmed by the statute at all. This, Oilco will argue, , is discrimination against out-of-state
interests and[,] thus, is violative of the Dormant Commerce Clause. Oilco will also point
to the legislative finding that State X’s statute will “expand the market for grains from which
ethanol is produced”, strengthening its argument that this regulation is merely economic
protectionism, and violative of the Dormant Commerce Clause.
State X will counter by arguing the important interest exception: a state may discriminate
against out[-]of[-]state interests where there is an important state interest in the regulation
and there are no non-discriminatory options. State X will point to the legislative findings
regarding the conservation of petroleum, and the reduction in pollution. These, State X will
argue, are important state interests. State X will also argue that achieving these goals
cannot be achieved by non-discriminatory means. State X will argue that in order to
conserve petroleum and reduce pollution, State X must ban the sale of non-ethanol based
gasoline inside the state.
Oilco will argue that there are available non-discriminatory means of meeting the state
interests. Oilco can argue that a phaseout of non-ethanol based gasoline is a less
discriminatory means of achieving their goals, and would provide time for out-of-state
sellers of non-ethanol based gasoline to meet State X’s stringent requirements.
State X may attempt to argue the market participant exception which allows a state to
discriminate against out-of-state interests where it is a market participant. However, the
facts do not indicate that the regulation only applies when State X is purchasing gasoline.
The effect of the regulation is to prohibit sale of all non-ethanol based gasoline to
residents, and the State. Thus, the state will not successfully argue the market participant
exception.
Because the statute discriminates against out[-]of[-]state interests, the court should find
that the statute violates the Dormant Commerce Clause.
Undue burden on interstate commerce
Even if the court finds that the statute does not discriminate against out[-]of[-]state
interests, the statute will be invalidated if it unduly burdens interstate commerce. Here,
Oilco will argue that it is a major retailer of gasoline inside State X. The effect of the
statute is to prohibit all sales of non-ethanol based gasoline inside the state. Oilco will
introduce their evidence showing the reduction in sales and profits, and will argue that if
every state enacted similar statutes, the effect would greatly burden interstate commerce.
State X will argue that the statute does not significantly burden interstate commerce, as
Oilco is still free to sell their gasoline in other states or comply with State X’s regulations.
However, since the impact of the statute will burden interstate commerce, a court would
likely find that the statute is violative of the Dormant Commerce Clause.
Equal Protection Clause
In order to assert an equal protection claim, Oilco will need to show some state action.
State action exists where the act is an exclusive public function or there is significant state
involvement. Here, the State X legislature passed a law. Thus, Oilco will easily be able
to show state action.
The Equal Protection Clause of the 14th Amendment provides that the state must provide
all citizens and organizations in their jurisdiction the equal protection of the laws. Where
the regulation does not affect a suspect or quasi-suspect class, and where the regulation
does not affect a fundamental right, the regulation must pass the rational basis test – that
is, the regulation must be rationally related to a legitimate government interest.
Here, Oilco is an international corporation. The statute does not involve a suspect class
– race or alienage – and it does not affect a quasi-suspect class – gender or legitimacy.
The statute also does not affect a fundamental right such as 1st Amendment protections
or the right to privacy. Thus, the rational basis test will be used in scrutinizing the statute.
Under the rational basis test, a regulation will generally be upheld as long as it is not
arbitrary.
State X will argue that there is a legitimate government interest involved – the conservation
of domestic supplies of petroleum, and the reduction in atmospheric pollution. State X willalso argue that the prohibition of non-ethanol based gasoline is rationally related to the
government interest, since the prohibition will reduce the amount of petroleum used in
producing gasoline, and will also reduce the pollution because ethanol is cleaner than pure
gasoline. Thus, the statute will pass rational basis, and the court will find no equal
protection violation.
Due Process Clause
Substantive Due Process Clause
In order to assert a substantive Due Process violation, Oilco will need to show state action.
As explained above, Oilco will easily show state action because State X passed a statute.
The ubstantive Due Process Clause prohibits states from infringing on a fundamental
right. If the state infringes on a fundamental right, the action must pass strict scrutiny.
Under strict scrutiny, the regulation must be necessary to achieve a compelling government
interest. Where no fundamental right is involved, the regulation must pass rational basis
– that is, the regulation must be rationally related to a legitimate government interest.
Here, the right to sell gasoline is not a fundamental right. Thus, the statute must pass the
rational basis test. As explained above, State X will successfully argue that there is a
legitimate interest in conserving petroleum and reducing pollution, and that the regulation
passed is rationally related to achieve those goals. Thus, Oilco’s claim under the Due
Process Clause will also fail.
Procedural Due Process
In order to assert a substantive Due Process violation, Oilco will need to show state action.
As explained above, Oilco will easily show state action because State X passed a statute.
The procedural Due Process prohibits the taking of life, liberty or property without due
process of law. Oilco may assert that the statute takes away their right to sell gasoline
inside the state without an appropriate hearing. However, the Court will not find a
procedural due process violation because the statute was validly passed by the state
legislature.
Privileges and Immunities Clause of Article IV
The Privileges and Immunities Clause of Article IV prohibits states from discriminating
against non-residents. The Clause does not protect against aliens or corporations. Here,
Oilco is a corporation, and is not afforded protection under the Clause. Thus, any claim
under the Privileges and Immunities Clause of Article IV will fail.

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document production request=no numerical limit
interrogatory and deposition=numerical limit
fraud, mise (mistake, inadvertence, surprise, excusable negligence), newly= 1 year (60(a)(1))

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The U.S. Supreme Court has ruled that immediate appeals from discovery orders raising attorney-client privilege issues do not ordinarily qualify for interlocutory order appeal exception.

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Rule 60. Relief from a Judgment or Order (a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave. (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.   (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.

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Two dismissal rule

If there are two voluntary dismissals based on same claim, the third action is with prejudice.

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Orders of or denying attorney disqualification are not considered final orders.
Orders imposing sanctions for criminal contempt are considered immediately appealable as final orders.
Orders by a court that resolve liability without addressing the requests for relief are not considered final.

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Rule 56( c) provides that “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.” This procedure does not require that the evidence be submitted in an admissible form, just that it be capable of being presented in an admissible form. Affidavits are the classic example— they are generally inadmissible at trial, but the information can be presented in an admissible form by calling the affiant as a witness at trial.

Although many courts hold oral argument related to summary judgment motions, they do not typically hold hearings to evaluate evidence admissibility.

A party may move for summary judgment on an issue as to which the opposing party will have the burden of proof at trial by asserting that the opposing party does not have sufficient evidence to establish each element of the claim.

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While a complaint attacked by a Rule 12( b)( 6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his “entitle[ ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).