5. What would be the worker's best response to the motion for summary judgment?

The worker's attorney deposed the manufacturer's president, and the manufacturer's attorney deposed the worker. Immediately thereafter, the manufacturer moved for summary judgment on the ground that the worker had no evidence showing that the insulation had ever been used by the worker's employer.

A construction worker sued an insulation manufacturer in federal court, claiming that he had developed a chronic health condition as a result of 20 years of exposure to the manufacturer's insulation at his work sites. The manufacturer answered, denying all liability and stating that it had never supplied its insulation to the worker's employer.

Argue that more time is needed for additional discovery to show the manufacturer’s liability, and attach a declaration describing the desired discovery
Argue that the motion should be denied, because a central issue in the case will be the manufacturer’s credibility on the question of its distribution of the insulation, and only a jury can decide questions of credibility
Argue that the motion should be denied, because the manufacturer failed to attach any evidence to its motion to show that the insulation was not used by the worker’s employer
Make a cross-motion for summary judgment arguing that the manufacturer has introduced no evidence to show that its insulation did not harm the worker

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If the case reaches a jury, either party may move for a judgment as a matter of law, also referred to as a directed verdict, which has the effect of taking the case away from the jury and determining the outcome as a matter of law. Federal Rule of Civil Procedure (FRCP) 50(a) states the standard for granting a motion for a judgment as a matter of law: If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may (i) resolve the issue against the party; and (ii) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

The movant (the person seeking summary judgment) can show the lack of a genuine issue of fact by submitting affidavits. They must: (i) only contain matters as to which the affiant has personal knowledge; (ii) state only matters which would be admissible at trial; and (iii) show the affiant is competent to testify at trial. The movant may also submit the fruits of discovery no matter which side they were obtained from.

FRCP 50 also permits a judge to reserve judgment on a motion for a judgment as a matter of law, and submits the case to the jury. If the jury decides against the party who moved for judgment as a matter of law, the judge can then evaluate the legal sufficiency on the evidence on a renewed motion for judgment as a matter of law (previously known as a judgment notwithstanding the verdict). The most important aspect of making this kind of motion is that the movant must make a motion for judgment as a matter of law before the case is submitted to the jury.

A is correct. If a motion for summary judgment is premature, the court may defer ruling on it. When the party opposing the motion shows by affidavit or declaration that he cannot yet present the facts, he may state the reasons for their unavailability. The court may deny the motion for summary judgment, order a continuance to permit affidavits to be obtained or depositions to be taken, or make such other orders as is just. In this case, both sides had only taken one deposition each before the defendant moved for summary judgment. Under the FRCP, in these circumstances, the plaintiff may make a declaration as to why he does not yet have all the facts necessary in the record for the court to make a decision. The court may then deny or defer the motion until more facts can be collected. Therefore, the best course of action for the plaintiff to take against the defendant's motion is to make a declaration to the court asking for greater discovery and describing the desired discovery.

B is incorrect. An opposition to a motion for summary judgment should be supported by affidavits, declarations made under oath, and other materials in the record. If a party fails to support an assertion of fact or fails to address another party's assertion, the court may grant summary judgment. Here, the worker should seek further discovery in order to obtain the proper evidence in the record to counter the motion for summary judgment.

C is incorrect. In this case, the worker is the plaintiff with the burden of proof. The manufacturer, the defendant, moved for summary judgment. A defendant may move for summary judgment, alleging that the plaintiff cannot meet an essential element of its case. However, here the plaintiff cannot switch the burden of proof onto the defendant to prove that the employer did not use the insulation.

D is incorrect. A motion on those grounds would be improper because the burden of proof at trial is on the plaintiff.

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5. What would be the worker's best response to the motion for summary judgment?

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