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21. Based only on evidence in the record, which party is likely to prevail at this point in the lawsuit?
A painter filed a diversity action against a doctor in federal court in State A. The painter alleged that the doctor failed to pay $95,000 due on a valid service contract. The doctor does not dispute there was a contract, but testified in a deposition that he paid the debt. The painter stated in a deposition that the doctor never paid the debt due pursuant to the contract and that the $95,000 the doctor paid was for a rare sports car he sold the doctor. The trial is set to begin next week.
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A is incorrect. Because there is a genuine issue of material fact, summary judgment is not appropriate.
B is incorrect. As stated above, there is a genuine issue of material fact, which means summary judgment is not appropriate at this point.
C is incorrect. A motion to dismiss for failure to state a claim upon which relief can be granted is based exclusively on the pleadings, and any argument that the doctor might make is based on material outside the scope of the pleadings.