The Macro Approach to a Winning Summary Judgment Motion

The Macro Approach to a Winning Motion for Summary Judgment

By Steven Joseph

(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)

?In 1985, I was in my second year of law school at the University of Pittsburgh. I got the full experience of Big East Basketball, but the experience that really has stayed with me until this day was the internship I had with Senior Federal Court Judge Gustave Diamond of the Western District of Pennsylvania.

It was not an exciting job.?My primary function was to read motions and briefs and check the case law cited in the briefs. ?The main question that I had to answer for Judge Diamond was whether the representation made by the attorney writing the brief was a correct one.?Many times, the case did not say what the attorney had argued in the brief.?Too often, while the citation was somewhat correct, it was taken out of context, and did not exactly hold up to close scrutiny.

Judge Diamond also had his own particular rule when he reviewed a dispositive motion.?Judge Diamond would always say that if the author of the brief was not abundantly clear on the very first page of the brief explaining why the motion should be granted, he would then deny the motion. That always gave me a chuckle because I read many briefs that took me to get up to page sixteen till I could figure out why the writer believed that the motion should be granted.

It is thirty eight years later, and in that long time span, I must have read thousands of summary judgment briefs, and unfortunately, the majority of them were in fact denied.?Some of them did have substantial questions of fact, and were rightfully denied. Other motions had arguably winning positions, but were presented before a judge who had the solid reputation of denying such motions.?

As a young lawyer in Pittsburgh in the 1980s, I did what many other young lawyers in Pittsburgh had put on their plate by the senior partners: all the aspects of asbestos litigation. This allowed me to go to the motions judge every Friday morning to argue the same motion for summary judgment.?Essentially, my motion should be granted because the plaintiff had not identified any asbestos containing products of my client.?And every week, the Judge denied the motion.?It became humorous after a while because the Judge reminded me every week that he always had denied my motions for summary judgment, and wanted to know why the particular motion in front of him was any different.?While it did not make a difference, I always came up with something different, and it provided a weekly source of humor for the Judge.?Unfortunately, stand-up comedy and creativity may win you points, but it was never the legal points needed with a judge.

Despite this perfect losing record that I achieved, I have learned a thing or two over the years and I do see common mistakes other than the points made by Judge Diamond.?It starts with the standard of review. As we all know, summary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear.

The focus thus is on the material facts of the case, and the attorney writing the brief makes the valiant attempt to spin the facts to suggest that there are room for dispute, and no competing interests can arise.

The problem with this approach is that it focuses solely on the facts of the case itself.?I call this the “micro approach”.?The entire universe are inhabited solely by the deposition testimony and documentation that is the record of the case, and there can be nothing else that can be considered in making the determination. If we do not bring anything else into focus, it allows opposing counsel to provide their own spin of the facts, and start punching holes in your argument.?All that it takes is one hole to be punched through, and all the air will be let out of the motion.

However, while the “micro approach” is necessary when presenting such a motion, it needs to be caste in a light that shines on the bigger picture or what I would call utilizing the “macro approach” as well.?It sets up the facts of this case within a bigger universe, and makes the facts of this case essentially the facts of many cases just like it.?What we have today is not something we have never seen before.?It happens all the time.?It is a common occurrence.

By doing this, we are not looking solely whether there is a material question fact in this case, but we ask the question whether this common occurrence is one that should ever get to a jury.

While this article does not present case examples of a winning summary judgment motion, the macro approach that needs to be utilized can be distilled by studying a handful of opinions that granted or affirmed a motion for summary judgment. The cases discussed below are a random sample of opinions, and while they come from different areas of the law, they are consistent in the Judges’ approach in being concerned with more than the factual issues of the case presented.

In researching this article, I read dozens of opinions granting summary judgment, and for the sake of some brevity, I have only included two below. However, this is something you can do yourself.?Before you start to prepare any summary judgment, it is a worthwhile exercise to read a number of opinions that a party was successful in its summary judgment motion. They should be cases that have nothing to do with the case you are handling. Rather, you are reading them to understand how different judges came to similar conclusions.?You will then be able to write a better brief, and make a more compelling argument when you present your motion.

Let’s start with a simple example. Recently, in a first-of-its-kind ruling, New York’s Appellate Division, First Department granted summary judgment in favor of a defendant on the issue of a plaintiff’s comparative, Leathers v. Approved Oil Co. of Brooklyn, 2023 N.Y. Slip Op. 180 (N.Y. App. Div. 2023) decided on January 17, 2023, wherein the plaintiff’s decedent was struck and killed by the defendant’s fuel truck at a Bronx intersection.

?The lower court denied both parties’ motions for summary judgment on liability. The Appellate Division modified and held: “defendants should have been granted partial summary judgment on the issue of decedent’s negligence, given the uncontroverted fact that she was crossing against the light while defendant driver had a green light in his favor.” Further, “the issues of whether decedent was solely at fault or whether the parties were comparatively negligent will be determined at trial,” citing Rodriguez v. City of New York , 31 N.Y.3d 312 (2018). The court also refused to grant summary judgment to the plaintiff.

?Here, we have a relatively simple fact pattern, but it is clear that the Court was faced with a common scenario that a general principle was able to be determined by the Court. Comparative negligence will need to be considered by a jury when any person, fast or slow, crosses the street against a Don’t Walk Red Light sign.?It was an easy decision for the Court when looking at the case from the macro-lens.

Using a more complex example, in Snyder v. LVNV Funding LLC, et al., (7:21-CV-07794, U.S. District Court, S.D. New York) the plaintiff filed a putative class action lawsuit against LVNV Funding LLC (LVNV) and Sequium Asset Solutions, LLC (SAS), alleging a letter from SAS offering a settlement of her debt violated sections 1692e(2)(A) and 1692g(a)(1) of the Federal Debt Collection Practices Act (FDCPA). The court held that the plaintiff could not establish a concrete injury and granted the defendants’ motion for summary judgment.

As background, the plaintiff filed suit after receiving a collection letter from SAS, stating the total due on her debt was $2,017.83 and offering to settle for 65% of the balance. The debt stemmed from a 2014 judgment on a credit card debt for $1,015.20, which included pre-judgment interest of 9% and certain fees and costs. Under New York law, post-judgment interest accrues at 9%.

The plaintiff argued that because interest accrued automatically, SAS’s failure to state whether interest was continuing to accrue created confusion and falsely stated the amount due. She further argued the failure to put an end date on the settlement offer was misleading. According to the plaintiff, she could not make an informed financial decision whether to try to borrow money or to accelerate her search for employment to obtain funding to take advantage of the settlement offer. LVNV and SAS presented evidence that no interest was accruing on the debt while placed with SAS and the settlement offer was still open at the time the plaintiff filed suit.

The court found the plaintiff failed to show any concrete injury. There was no evidence the amount due had changed between the time when the plaintiff received the letter and when she filed suit, so she did not suffer pecuniary harm. The fact that she may have attempted to seek a loan to take advantage of the settlement offer did not prove that she could have received a loan and accepted the settlement offer. She also did not obtain a new job until after she had filed the lawsuit, making the possibility of paying the loan off with her new income also irrelevant. The court found, “[p]laintiff, then, was not faced with an increased payment obligation, but only the risk that in the future Defendants or some other entity would seek more money from her than what she was offered in the Letter. That hypothetical set of circumstances represents only the risk of future harm, and is thus not concrete.”

The court held the plaintiff could not establish concrete harm and had no standing, depriving the court of subject matter jurisdiction and requiring dismissal without prejudice. By footnote the judge added that had she been able to rule on the merits, summary judgment would have been granted and the dismissal would be with prejudice because prior cases had rejected the plaintiff’s argument that not informing the debtor interest was accruing or providing a deadline to accept the settlement offer is misleading or fails to represent the true amount of the debt.

While this opinion did get into a factual analysis of the case itself, the facts established could have easily been restated in a generic macro perspective. A second important takeaway from this opinion was the Court noted that other courts had previously rejected the plaintiff’s position. Too often, attorneys, when writing a summary judgment brief, cite all the law that supports the position taken, but the cases are silent on the issue of whether a summary judgment was granted in that cited opinion. If you can tell a judge that there were five other judges who granted a summary judgment provided with a similar fact pattern, it is a much easier lift for the Judge in your case to grant the motion as well. It is also a much easier lift because it is your brief that makes the lifting easier. Never underestimate the power and benefit of making the Judge’s job easier. That effort is the effort that is more likely to be rewarded.

Here is a hypothetical illustration. Company A’s board of directors are dissatisfied with the CEO and set up a meeting to remove him.?Because it was during the height of the Covid pandemic, it was done via Zoom. After the CEO is removed, he brings an action for defamation.?

In this hypothetical, I want to put before the judge not only whether there is a question of fact in this case, but rather, I want to make this case so common that I am suggesting that the Court should grant the motion for the thousands and thousands of times this very same scenario is presented.

Here, we have all the facts of the Zoom call.?We have a transcript. There is no dispute that the claim does not involve anything other than the call itself.?There are the many defenses to defamation that go into the review such as whether the statements were true, or were simply opinions, were protected by privilege, and that they were stated without malice.

However, if we caste a “macro approach” light on this, this case is about a situation that occurs in boardrooms and offices across the country on a daily basis. The case is about nothing than a performance review.?Everyone who has ever been employed has been subject to a performance review and a bad performance review does not create a defamation claim.

Putting the facts of the case into the macro box, the only thing left is to place the bright light of the law on how the facts would be judged. Courts have regularly held that statements made by employees during workplace investigations are covered by the qualified privilege. See Katial v?Mass. Mut. Life Ins. Co. ?2002 WL 1632556, at *10 (N.D. Ill. July 22, 2002); Naeemullah v. Citicorp Services, Inc. , 78 F.Supp.2d 783, 792-93 (N.D. Ill. 1999); Vickers v. Abbott Laboratories, 719 N.E.2d 1101, 1108-1110 (Ill. App. Ct. 1999). This approach gives effect to policy reasons for the privilege, namely "facilitating a free flow of information so that correct information may ultimately be attained." Vickers, 719 N.E.2d at 1108 (citing Kuwik, 619 N.E.2d at 133.

The ultimate power of utilizing the “macro approach” is that it takes away the argument from your argument.?While attorneys always like to explain what arguments they will make, the truth is in fact that argument takes away the attorney’s power.?The reason is that it is always something anticipated, and a well thought out counter argument will be ready to shoot it down.

With the “macro approach”, we are presenting logical conclusions. If I have a common set of facts that we are all familiar with and that we may even have experienced, and we have previous decisions upholding a summary judgment, we are no longer presenting an argument, but rather, the only logical conclusion.?

If you can present the one logical conclusion, you then can be able to actually have it seen in the first page of your brief.?If you can do that, Judge Diamond would have looked very favorably in granting that motion way back in the 1985.

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Steven Joseph currently serves as Second Vice President for Western World Insurance, an AIG Company.?Steven has served as the Chair of the Dispute Resolution Committee of the TIPS Section of the ABA from 2010-2011as well as the Co- Chair of the Litigation Section’s Professional Liability Committee from 1999 to 2002.

?Steve has spoken and written both on managing professional liability actions and negotiation techniques for the Professional Liability Underwriting Society, Practicing Law Institute, Corporate Counsel of America, and the American Bar Association.?He is a 1986 graduate of the University of Pittsburgh School of Law.??