be careful to make sure no mention is made of any issue of disputed fact in this response... only that no facts were presented... to mention any disputed fact would be to negate my own summary motion watch for the trap Plaintiff's Response to Summary Judgment 'Motion' ]]] Preliminary Statement reference prior argument of illegal filing quote case law on continuing this fiasco ]]] Insufficiencies (Quote roseboro order attachments) 1: Motion filed after the cut off date for all motions expired 2: Affidavit is not referenced as included in the 'motion' and therefore inadmissable. Affidavit is hearsay and should be stricken from the record. File objection to the affidavit. 3: 'Evidence' is not referenced as included in the 'motion' and therefore inadmissable 4: Motion is not signed by counsel of record 5: Motion fails to demonstrate to the court the lack of evidence of the plaintiff 6: Not a properly supportede motion for summary judgment 7: No genuine issues of material fact are presented or offered or alleged 8: In Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court placed the following clarifying principles on the action of a summary judgment: · Summary judgment is not necessarily inappropriate in complex cases, nor is it inappropriate when dealing with state of mind issues; · The party moving for summary judgment must meet an initial burden of showing that no genuine issue of material fact exists, and this burden may be met by pointing to the absence of support for essential element of plaintiff’s case; · The substantive law governing the case will determine what issues are material; · If the moving party meets its burden, the party opposing the motion must present affirmative evidence and must produce more than a mere scintilla of evidence to overcome the motion; and · The court does not have to search entire record to establish whether a genuine issue exists requiring trial. Statements of Fact Evaluate each paragraph of 'motion' and referenced memorandum 1: Is it a statement of fact? 2: Is it supported with evidence? 3: Is it asking the court to make a conclusion of truth or to weigh the evidence? Conclusion: Unsupported motion. Improperly filed. "Summary judgment is appropriate when, after considering all evidence in the light most favorable to the party opposing the motion, the moving party is entitled to judgment as a matter of law." Defendants have attempted to convolute this case by introducing a false theory using the same evidence (out of context) provided by the Plaintiff (in context) in order to gain advantage for 'the light most favorable to the party opposing the motion". This attempt fails for three reasons: 1: Expecting the Court to impart meaning upon Plaintiff's evidence that is not possible in context expects the court to act as a jury and ignore the weight of the evidence versus the potential of fictional meaning versus reality. 2: Evidence cannot be taken piecemeal to concoct a new theory. 3: No 'new' (true or not) information may be entered into a summary judgment. The Court must weigh the evidence already in the case and cannot consider new theories, concoctions and conjucture. Defendants have only come forward with a statement of the grounds for opposition of the motion without evidentiary support. ---------------------- processes A party who receives a motion for summary judgment has a number of lines of defense. The nonmoving party may (1) attack the motion on its face by questioning the soundness of the evidence offered in support of the motion, challenging the admissibility of any affidavits included in the motion and questioning whether the moving party has met its burden of production, (2) may instead respond by carefully drafting its own affidavits in order to get its best case before the trier of fact, (3) may dispute the moving party’s characterization of the law,[i] or (4) may do all of the above. ------------------------ elements Remember that Rule 56(f) does not condone fishing expeditions. A motion for a continuance must affirmatively demonstrate why discovery will enable the nonmoving party to rebut the moving party’s showing of absence of genuine issue of fact. Such motions should be made early. Ashton-Tate Corp. v. Ross, 916 F.2d 516 (9th Cir. 1990) (motion seeking continuance to permit discovery must be made prior to hearing on motion). The most effective affidavits in support of a motion for continuance (1) assert that granting summary judgment without additional discovery would be premature, (2) focus on the precise issue raised in the moving party’s motion papers, (3) articulate a plausible basis for the belief that discoverable material exists which raises trialworthy issues, (4) demonstrate good cause for failure to have conducted the discovery earlier, (5) describe how the facts are to be obtained, and (6) tailor the discovery request accordingly. Affidavits Must Meet the Requirements of Rule 56(e). Despite the fact that Rule 56(a) does not require that the parties submit affidavits in support of a motion for summary judgment, the affidavit is perhaps the most common form of evidence used on summary judgment. Fed. R. Civ. P. 56(a). Rule 56(e) provides that, when affidavits are used to support a motion, the affidavit “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.” Fed. R. Civ. P. 56(e). Affidavits must be made on personal knowledge. The first of the requirements set forth in Rule 56(e) -- that the affidavit be made on personal knowledge -- provides an easy means of attacking an affidavit offered in support of a summary judgment motion. Statements made only on information and belief are insufficient.[ix] Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525 (9th Cir. 1991), cert. granted, 503 U.S. 958 (1991), aff’d, 113 S. Ct. 1920. However, personal knowledge may include inferences from sense. Palucki v. Sears, Roebuck & Co., 879 F.2d 1568 (7th Cir .1989); Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878 (7th Cir. 1998) (although personal knowledge may include inferences and opinions, those inferences must be substantiated by specific facts). Affidavits must set forth only facts. Rule 56(e) further provides that the affidavit is limited to setting forth “facts.” Fed. R. Civ. P. 56(e). Statements of belief, conclusions, and opinions are insufficient. Cleveland v. Porca Co., 38 F.3d 289 (7th Cir. 1994); Baxter v. Railway Express Agency, Inc., 455 F.2d 693 (6th Cir. 1972); see also Carter v. Three Springs Residential Treatment, 132 F.3d 635 (11th Cir. 1998) (holding statement in affidavit that affiant was subjected to a “racially hostile environment” and that management had racially biased attitudes toward black employees was conclusory and thus struck from consideration). Simple re-argument of the case or denial of an opponent’s allegations must also be disregarded. Goodloe v. Davis, 514 F.2d 1274 (5th Cir. 1975); see also McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89 (5th Cir. 1995) (stating affidavit setting forth ultimate or conclusory facts and conclusions are insufficient to support summary judgment); Tavery v. U.S., 32 F.3d 1423 (10th Cir. 1994) (holding affidavit’s statement “I do not believe that the Internal Revenue Service was the source of the information” regarding taxpayer’s income, occupation, and tax funds was mere statement of belief and therefore insufficient to support summary judgment on source of disclosure issue). Move to Strike the Affidavit. The proper method of challenging an insufficient or inappropriate affidavit is to move to strike the affidavit. See Fed. R. Evid. 104. The motion to strike should be specific -- it should cite specifically to the problem with the affidavit and the grounds for the objection. The motion should be filed no later than the time a response to the summary judgment motion is filed. Question Whether the Movant has Met its Burden. Summary judgment will not be granted unless the court finds that there is no genuine issue of material fact. Fed. R. Civ. P. 56; Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d 139 (3rd Cir. 1998); Scotto v. Almenas, 143 F.3d 105 (2nd Cir. 1998); Knowles v. Citicorp Mortgage, Inc., 142 F.3d 1082 (8th Cir. 1998). The standard is the same as that applied to a directed verdict -- summary judgment is appropriate when, after considering all evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Liberty Lobby, 477 U.S. at 250-51; Celotex, 477 U.S. at 323. To meet this standard, Rule 56(c) expressly requires that the party moving for summary judgment make an initial showing that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323. Only if the moving party produces information establishing that no factual dispute exists will the burden shift to the nonmoving party to show that there is indeed a genuine issue of material fact. Celotex, 477 U.S. at 323. Accordingly, the next step in responding to a motion for summary judgment is to challenge whether the moving party has sufficiently established the non-existence of any material fact so as to shift the burden to the nonmoving party to require a response. The nature of the required showing depends on who would bear the burden of persuasion at trial. If the moving party has the burden at trial (either because the moving party is the plaintiff or because the moving party is asserting an affirmative defense), the moving party must establish all essential elements of the claim or defense. Id. at 322. However, if the nonmoving party bears the burden at trial, the moving party may obtain summary judgment simply by establishing the nonexistence of any element essential to the nonmoving party’s claim. See, e.g., Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068 (6th Cir. 1993) (holding defendant without ultimate burden of persuasion on causation issue in product liability action need only point out lack of genuine issue regarding causation to meet its burden regarding summary judgment). In the latter situation, the moving party may either assert that there is no evidence to establish a required element of the nonmoving party’s claim by showing the absence of facts, usually by pointing to excerpts from discovery responses or through affidavit testimony, or the moving party may attempt to negate an element of the non-moving party’s case based upon a more elaborate factual showing. In any event, the movant must point to portions of record demonstrating the lack of any genuine issue of material fact.[xiii] Board of Trustees of Univ. of Illinois v. Insurance Corp. of Ireland, Ltd., 969 F.2d 329 (7th Cir. 1992). Challenge the Materiality of the Facts Identified by the Moving Party. Not every factual dispute precludes summary judgment. Instead, the fact in dispute must be “material.” Fed. R. Civ. P. 56. Irrelevant or unnecessary facts do not preclude summary judgment even when in dispute -- only facts central to a claim or defense will be considered material. A fact is material for summary judgment purposes only if its resolution will affect the outcome of the suit.[xiv] Liberty Lobby, 477 U.S. at 248; Witt v. Roadway Exp., 136 F.3d 1424 (10th Cir. 1998); Anheuser-Busch, Inc. v. Natural Beverage Distrib., 69 F.3d 337 (9th Cir. 1995); Tennessee Dep’t of Mental Health & Mental Retardation v. Paul B., 88 F.3d 1366 (6th Cir. 1996); Opryland USA Inc. v. Great Am. Music Show, Inc., 970 F.2d 847 (C.A. Fed. 1992). Materiality is a function of the applicable legal standard, therefore identification of the substantive law governing the dispute is crucial to the determination of which facts are material and which irrelevant. John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500 (10th Cir. 1994); Solomon v. Walgreen Co., 975 F.2d 1086 (5th Cir. 1992). Contest Whether the Dispute is Genuine. Similarly, in order to preclude summary judgment, the dispute must be “genuine.” Though Rule 56 itself does not define “genuine,” it is clear now that a dispute is genuine for summary judgment purposes only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Mitsubishi, 475 U.S. at 586-87; Liberty Lobby, 477 U.S. at 252; Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115 (1st Cir. 1995); Troy Chem. Corp. v. Teamsters Union Local No. 408, 37 F.3d 123 (3rd Cir. 1994); Newell v. Westinghouse Elec. Corp., 36 F.3d 576 (7th Cir. 1994); Marine Coatings of Alabama, Inc. v. U.S., 932 F.2d 1370 (11th Cir. 1991). In other words, the quality and quantity of evidence offered to create a question of fact must be adequate to support a jury verdict. The mere possibility of a factual dispute is not enough. Hartsel v. Keys, 87 F.3d 795 (6th Cir. 1996), cert. denied, 117 S. Ct. 693 (1996); Wilson v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 83 F.3d 747 (6th Cir. 1996), cert. denied, 117 S. Ct. 601 (1996) (stating mere existence of colorable dispute does not preclude summary judgment). Only if reasonable minds could not differ as to the conclusions drawn from the evidence will the motion be granted. Moreover, not only must the facts be in genuine issue, there must also be no genuine issue as to the inferences to be drawn from the facts. World-Wide Rights Ltd. Partnership v. Combe Inc., 955 F.2d 242 (4th Cir. 1992). Where reasonable minds could differ on inferences arising from undisputed facts, the court should deny summary judgment. Liberty Lobby, 477 U.S. at 248; Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997); Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737 (3rd Cir. 1996); M&M Med. Supplies, 981 F.2d at 160; Braxton-Secret v. A.H. Robins Co., 769 F.2d 528 (9th Cir. 1985). The challenge to a motion for summary judgment on these grounds, then, involves asserting that the evidence is not so one-sided that the moving party must prevail as a matter of law. If a reasonable jury could not return a verdict for the moving party, regardless of the evidence presented by the nonmoving party, the dispute is not “genuine,” the moving party has not met its burden, and the nonmoving party need not therefore respond. By the same token, where the moving party is relying on an inference drawn from the facts, challenge the plausibility of those inferences -- the court need not accept every possible inference, it must only accept “reasonable” inferences. Parillo v. Commercial Union Ins. Co., 85 F.3d 1245 (7th Cir. 1996). QUESTION WHETHER THE MOVANT HAS INCLUDED SPECIFIC CITATIONS TO THE RECORD. Finally, it is possible to challenge the contents of a motion for summary judgment on the ground that the moving party has failed to cite to the precise location in the record of the facts upon which the moving party has relied. Celotex, 477 U.S. at 323 (stating party seeking summary judgment bears burden of informing court of basis for motion and “identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact”); Friedel v. City of Madison, 832 F.2d 965 (7th Cir. 1987). For instance, if the moving party has simply filed a full deposition transcript without pointing out the pertinent portions of testimony, a nonmoving party may challenge the moving party’s evidence on those grounds. See, e.g., Uhl v. Zolk Josephs Fabricators, Inc., 121 F.3d 1133 (7th Cir. 1997) (stating party must bring specific deposition testimony to court’s attention); Tubacex, Inc. v. M/V Risan, 45 F.3d 951 (5th Cir. 1991) (stating that, if moving party fails to identify portions of pleadings and discovery on file together with affidavits which it believes demonstrates absence of genuine material issue of fact, motion must be denied regardless of nonmovant’s response); Blue Cross & Blue Shield of Alabama v. Weitz, 913 F.2d 1544 (11th Cir. 1990) (holding allegation that unspecified statute of limitations barred some unidentified portion of claims was insufficient). Perhaps most important is the manner in which an affidavit is drafted. Again, Rule 56(e) requires that the affidavit be made on personal knowledge setting forth facts admissible in evidence and signed by the party competent to testify to those facts. The affidavit cannot recite facts to which competent witnesses will testify at trial nor consist only of conjecture, conclusory allegations regarding ultimate facts, or conclusions of law. Nor may the affiant simply deny the moving party’s allegations. It is critical that the affidavit carefully and deliberately assert each factual allegation, including enough factual support to demonstrate that the affiant possesses personal knowledge regarding each matter. ------------------------ new case law # regarding rule 56f discovery See, e.g., Potter v. Delta Air Lines, Inc., 98 F.3d 881 (5th Cir. 1996) (holding plaintiff was foreclosed from arguing that because of protective order against certain interrogatories she did not have adequate time for discovery to opposing defendant’s motion where plaintiff failed to move for continuance); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954 (4th Cir. 1996) (holding party may not simply assert in its brief that discovery was necessary and thus overturn summary judgment when it failed to comply with the requirement that it set out reasons for the need for discovery in an affidavit); Int’l Surplus Lines Ins. Co. v. Wyoming Coal Ref. Sys, Inc., 52 F.3d 901 (10th Cir. 1995) (stating submission of only one affidavit from attorney asserting that material sought was of “critical importance” and that nonmoving party would be seriously prejudiced if it was not able to obtain and review the information was not sufficient to extent period of discovery prior to ruling on motion); Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078 (8th Cir. 1993) (holding plaintiff was not entitled to discovery before a ruling on summary judgment where plaintiff failed to file affidavit specifying to court what further discovery might unveil and its relevance to the issues pleaded); Klepper v. First Am. Bank, 916 F.2d 337 (6th Cir. 1990) (holding trial court did not abuse discretion in granting summary judgment even though nonmovant had not had opportunity to engage in discovery where nonmovant had not presented any affidavit to meet burden of showing why it was not able to oppose the motion due to lack of discovery); Hancock Indus. v. Schaeffer, 811 F.2d 225 (3rd Cir. 1987) (holding plaintiffs were not entitled to continuance of summary-judgment proceeding, though they alleged that they had to conduct additional discovery in order to respond, when they did not file required affidavit and failed to explain what material facts they hoped to uncover to support allegations in complaint); Weir v. Anaconda Co., 773 F.2d 1073 (10th Cir. 1985) (stating fact that party had not completed discovery did not preclude grant of summary judgment in favor of moving party where nonmoving party did not file affidavit under Rule 56(f) explaining why he could not present specific facts in response to motion). # regarding discovery deposition Scosche Ind., Inc. v. Visor Gear, Inc., 121 F.3d 675 (Fed. Cir. 1997) (holding nonmoving party had time to take the deposition sought but did not and therefore cannot forestall summary judgment by arguing that it has had no opportunity to complete discovery when it didn’t pursue discovery with vigor); Plott v. General Motors Corp., Packard Elec. Div., 71 F.3d 1190 (6th Cir. 1995), cert. denied, 517 U.S. 1157 (1995) (holding court did not abuse discretion in denying plaintiff additional discovery, despite evidence that defendant was not cooperative during discovery, where plaintiff was dilatory in efforts to secure information on which he based his claim); Caravan Mobile Home Sales, Inc. v. Lehman Bros. Kuhn Loeb, Inc., 769 F.2d 561 (9th Cir. 1985) (refusing additional discovery request where nonmoving party had been allowed ample discovery and had taken almost 400 pages of deposition testimony from witness whom party sought to depose). # regarding affidavit Jones v. Owens-Corning Fiberglass Corp. & Amchem Prods., Inc., 69 F.3d 712 (4th Cir. 1995) (stating that, unless party moves to strike affidavit under summary judgment rule, any objections are deemed waived and court may consider it); Lac De Flambeau Band of Lake Superior Chippeewa Indians v. Stop Treaty Abuse-Wisconsin, Inc., 991 F.2d 1249 (7th Cir. 1993) (holding protest organization waived admissibility of affidavits submitted by Indian tribe in support of summary judgment motion in action to enjoin protesters from interfering with treaty fishing rights by failing to object when responding to the motion); In re Teltronics Servs., Inc., 762 F.2d 185 (2nd Cir. 1985) (stating that, while affidavit of defense counsel may have provided insufficient grounds for granting summary judgment motion because relevant paragraphs were not made on personal knowledge, opposing party waived objection to affidavit by failing to move to strike it). See also Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994) (stating motion to strike affidavit must specify objectionable portions and specific grounds for objection); Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260 (7th Cir. 1986) (holding “Response” to affidavit to determine whether affidavit raised genuine issue of material fact could not be construed as “motion to strike” where it failed to alert court to alleged deficiencies in moving party’s affidavit). Only those portions of the affidavit deemed inadmissible will be disregarded -- the court may consider the remaining contents. Casas, 42 F.3d at 668; Akin v. Q-L Invs., Inc., 959 F.2d 521 (5th Cir. 1992) (stating court should disregard only those portions of the affidavit that are inadequate). # regarding affidavit See also Pfau v. Reed, 125 F.3d 927 (5th Cir. 1997) (holding portion of sexual harassment claimant’s affidavit in which she stated that other employees had told her that supervisor had harassed them was incompetent summary judgment evidence because it constituted inadmissible hearsay); Pritchard v. Southern Co. Servs., 92 F.3d 1130 (11th Cir. 1996) (stating employee could not use inadmissible hearsay testimony to defeat employer’s motion for summary judgment when hearsay could not be reducible to admissible form at trial); Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307 (8th Cir. 1993) (holding hearsay evidence admissible at trial solely for impeachment purposes is improper for summary judgment motion when offered to prove truth rather than merely to impeach); Newport Ltd. v. Sears, Roebuck & Co., 6 F.3d 1058 (5th Cir. 1993), cert. denied, 114 S. Ct. 2710 (1993) (holding privileged documents are inadmissible, thus may not be considered on summary judgment); Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1993) (holding copy of newspaper article concerning how police vehicles were positioned prior to motorcycle crash leading to suit was improper for summary judgment purposes in that it constituted inadmissible hearsay even if police chief of defendant town was sole source of article’s information such that statements may be regarded as admissions of party opponent because article itself constituted out-of-court statement by unidentified reporter); Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970 (4th Cir. 1990) (holding letter from treating physician to counsel for parents of vaccinated child who suffered repeated seizures and developmental retardation constituted unsworn hearsay that could not properly be considered on summary judgment motion); Garside v. Osco Drug, Inc., 895 F.2d 46 (1st Cir. 1990) (holding hearsay account of expert’s anticipated testimony insufficient because account of what party thought experts might testify to amounts to hearsay); Federal Deposit Ins. Corp. v. Roldan Fonseca, 795 F.2d 1102 (1st Cir. 1986) (stating failure to present statement of qualified witness that copies of receipts of three money orders constituted records of regularly conducted business activity precluded reliance on receipts as exceptions to hearsay rule when being asserted to prove the amount appearing on the face of the documents was paid on promissory note); but see Kehoe v. Anheuser-Busch, Inc., 995 F.2d 117 (8th Cir. 1993) (holding affidavit statement in age discrimination case that employees had treated claimant employee with “disdain” was admissible in opposition to employer’s summary judgment motion over objection that it was hearsay where statement represented affiant’s summary of impressions gained through first-hand knowledge); U.S. v. One Parcel of Property Located at 15 Black Ledge Drive, Marlborough, Conn., 897 F.2d 97 (2nd Cir. 1990) (relying on out-of-court statements attributed to unidentified confidential information where there was sufficient information from which court could conclude that hearsay information was reliable, particularly where independent police work corroborated details of informant’s information); Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486 (7th Cir. 1988) (holding consideration of video of city counsel meeting at which ordinance was passed under exception to hearsay rule for official public record on city’s summary judgment motion where tape was only record of proceedings and opposing party failed to establish need to cross persons recorded was proper; editing to remove extraneous material did not affect admissibility); Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1971) (concluding that letter offered in support of motion for summary judgment was not to be considered because, even if admissible, it was insufficient to raise a fact question). # regarding use of evidence Also relevant to whether the moving party has met the burden of establishing that there is no genuine issue of material fact is what standard of proof is required at trial. The determination of whether a factual dispute exists is governed by the substantive evidentiary standards that apply to the case. Liberty Lobby, 477 U.S. at 255-56; Frazier v. Garrison I.S.D., 980 F.2d 1514 (5th Cir. 1993); Nat’l Solid Wastes Management Ass’n v. Voinovich, 959 F.2d 590 (6th Cir. 1992). For instance, in Liberty Lobby, the nonmoving party’s heightened evidentiary standard was taken into consideration and the party was required to produce evidence that established malice by clear and convincing evidence rather than by a preponderance of the evidence. 477 U.S. at 257; see also Klepper v. First Am. Bank, 916 F.2d 337 (6th Cir. 1990) (holding limited partner’s conclusory assertion in complaint that bank’s actions were oppressive, and his deposition testimony that bank’s conduct was oppressive, were insufficient to create dispute as to oppressiveness under clear and convincing standard required for punitive damages in jurisdiction). Again, a careful examination of the substantive law applicable to the issues is necessary to a successful challenge to the motion. # See, e.g., Benavidez v. Albuquerque, 101 F.3d 620, 624 (10th Cir. 1996) (holding factual dispute regarding whether plaintiffs were attempting to buy drugs was immaterial to issue of whether city had reasonable suspicion to order urinalysis drug tests because only material facts at issue concern what information the city possessed at the time it ordered the tests and whether that information was reliable); Bowers v. Sears, Roebuck & Co., 91 F.3d 143 (table), 1996 WL 382249, at *2 (6th Cir. 1996) (unpublished) (holding that factual determinations regarding representations would not affect outcome of claim and thus were not material in light of fact that plaintiff would have been in the same predicament despite the alleged misrepresentations); Foy v. City of Bereau, 58 F.3d 227 (6th Cir. 1995) (holding dispute as to exact words of police was not “genuine issue of material fact” in context of civil rights action against policy where issues were whether constitutional right in question existed at all and, if so, whether such right was clearly established); Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994) (concluding that in age discrimination claim comments by non-decisionmakers are not material to the inquiry of discriminatory termination); Sheinkopf v. K.P. Stone III, 927 F.2d 1259, 1263-64 (1st Cir. 1991) (concluding request for admissions concerning existence and extent of bills rendered by law firm to limited pa # materials submitted The issues on summary judgment are not those set forth in the pleadings but are those presented by the materials submitted in support of the summary judgment motion. Yates v. Transamerica Ins. Co., 928 F.2d 199, 202 (6th Cir. 1991); Marsh v. Austin-Fort Worth Coca-Cola Bottling Co., 744 F.2d 1077, 1079 n.4 (5th Cir. 1984). Again, keep in mind that the same rules apply to the allegations proffered by the nonmovant -- the facts relied upon must be material and the dispute genuine. Fed. R. Civ. P. 56. In making its determination, however, the court must look to the evidence offered by the nonmoving party in the light most favorable to that party, must accept all justifiable inferences on the nonmoving party’s behalf, and must reject any contrary evidence and inferences. See Adickes, 398 U.S. at 158-59; Mitsubishi, 475 U.S. at 587; Liberty Lobby, 477 U.S. at 255.[xv] Even so, a nonmoving party may not merely rest on the pleadings but must come forward with specific facts showing there is genuine issue for trial. Mitsubishi, 475 U.S. at 587; Celotex, 477 U.S. at 324; Borschow Hosp. & Med. Supplies, Inc. v. Cesar Castillo Inc., 96 F.3d 10 (1st Cir. 1996); Wise v. E.I. DuPont de Nemours & Co., 58 F.3d 193 (5th Cir. 1995). Though a disputed issue need not be resolved conclusively in favor of the nonmoving party, the nonmovant is required to present some significant probative evidence making it necessary to resolve the differing versions of the dispute at trial. Ivy Street Corp. v. Alexander, 822 F.2d 1432 (6th Cir. 1987). Consequently, the promise to produce admissible evidence at trial is not sufficient to defeat a motion for summary judgment. Garside v. Osco Drug, Inc., 895 F.2d 46 (1st Cir. 1990); see also Crawford v. Lamantia, 34 F.3d 28 (1st Cir. 1994), cert. denied, 115 S. Ct. 1393 (neither conclusory allegations, improbable inferences, and unsupported speculation nor brash conjecture coupled with earnest hope that something concrete will materialize is sufficient to block summary judgment). The mere existence of a scintilla of evidence in support of the nonmoving party’s position is also insufficient -- there must be evidence upon which a jury could reasonably find for the nonmoving party. Liberty Lobby, 477 U.S. at 252; Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355 (4th Cir. 1994); Milton v. Van Dorn Co., 961 F.2d 965 (1st Cir. 1992); Martinez v. City of Los Angeles, 141 F.3d 1373 (9th Cir. 1998); Hall v. Tollett, 128 F.3d 418 (6th Cir. 1997). Evidence which is merely colorable or not significantly probative does not present a genuine issue of fact. Liberty Lobby, 477 U.S. at 249-50; see also National Amusements, Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995), cert. denied, 115 S. Ct. 2247 (1995) (evidence showing that there is some metaphysical doubt as to material facts is insufficient); Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233 (6th Cir. 1992) (nonmoving party must do more than raise metaphysical or conjectural doubt about issues requiring resolution at trial). Generally, the plaintiff’s own uncorroborated testimony is insufficient to defeat a motion for summary judgment. Bridgman by and through Bridgman v. New Trier High Sch. Dist. No. 203, 128 F.3d 1146 (7th Cir. 1997). However, where that testimony addresses facts personal to the plaintiff, the testimony may provide the basis of a successful opposition to the motion.[xvi] Keep in mind that if a witness for the nonmoving party contradicts earlier sworn testimony, the new testimony must be accompanied by a credible explanation of the contradiction. Though it is not the function of the trial court to make credibility determinations, weigh the evidence, or draw inferences,[xvii] see Liberty Lobby, 477 U.S. at 249; Hanover Ins. Co. v. American Eng’g Co., 33 F.3d 727 (6th Cir. 1994); Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220 (5th Cir. 1991); Zuchel v. Spinharney, 890 F.2d 273 (10th Cir. 1989), challenging the credibility of the movant’s affiants is not, alone, enough to avoid summary judgment.[xviii] Dugan v. Smerwick Sewerage Co., 142 F.3d 398 (7th Cir. 1998). Issues of credibility only defeat summary judgment where an issue of material fact cannot be resolved without observation of the demeanor of witnesses. Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120 (3rd Cir. 1998). Overall, the nonmoving party needs to show that the record contains sufficient specific facts -- either by demonstrating that the moving party ignored or mischaracterized relevant facts -- such that there exists a genuine dispute of material fact. Raising alternate inferences, on the other hand, might be sufficient to defeat a motion for summary judgment. Because the court must draw all reasonable inferences in a light favorable to the nonmoving party, a nonmoving party may be successful in pointing out what in the moving party’s position is based on inferences and establish equivalent inferences. If reasonable people could differ as to which of the possible inferences is the most plausible, the matter should not be decided on summary judgment. An inference based upon speculation or conjecture, however, does not create a material factual dispute. Robertson v. Allied Signal, Inc., 914 F.2d 360 (3rd Cir. 1990). Finally, it is important to keep in mind that legal memoranda and oral argument are not evidence and cannot, by themselves, create factual disputes sufficient to defeat summary judgment. Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358 (3rd Cir. 1996); see also Scherer v. Rockwell Int’l Corp., 975 F.2d 356 (7th Cir. 1992) (stating argument is not evidence upon which to base denial of summary judgment); Helmich v. Kennedy, 796 F.2d 1411 (11th Cir. 1986) (holding statements of fact in party’s brief cannot be considered in determining whether genuine dispute exists). Summary judgment may not be granted on the basis of statements of fact in the moving party’s brief even though uncontroverted by the opposing party, see Mosier v. Maynard, 937 F.2d 1521, 1525 (10th Cir. 1991), nor may it be defeated by factual assertions in brief of the nonmoving party.[xix] Nieves v. University of Puerto Rico, 7 F.3d 270, 276 n.9 (1st Cir. 1993). ------------------------------ Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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.” Fed. R. Civ. P. 56(c) (1995). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265 (1986). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327. “Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538 (1986); Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving party. King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). For plaintiff to prevail on her employment discrimination charge, she must prove four elements necessary to establish a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and its progeny. She must prove: (1) she is a member of a protected class; (2) she was qualified to manage the JFM store; (3) she was fired; and (4) after her discharge, JFM either hired a non-protected class member to replace her or retained a non-protected employee who had engaged in conduct similar to that for which plaintiff was terminated. Davin v. Delta Air Lines, Inc., 678 F.2d 567, 571 (5th Cir. 1982). ---------------------------- A motion for summary judgment cannot be granted unless there are no genuine issues of material fact for trial. Fed. R. Civ. P. 56(c); See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant must demonstrate the lack of a genuine issue of fact for trial, and if that burden is met, the party opposing the motion must "go beyond the pleadings" and come forward with evidence of a genuine factual dispute. Id. at 324 (1986). The Court must view the facts and the inferences drawn from the facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). [HN3] Conclusory [*7] allegations are not sufficient to defeat a motion for summary judgment. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court will address Plaintiffs' claims in the order in which they are presented in Plaintiffs' Amended Complaint. -------------------------------- If the evidence favoring the non--moving party is"merely colorable, or is not significantly probative, sum-mary judgment may be granted." Anderson v. LibertyLobby Inc., 477 U.S. 242, 249--50, [**9] 91 L. Ed. 2d 202,106 S. Ct. 2505 (1986) (citations omitted). Unsupportedspeculation is insufficient to defeat a motion for sum-mary judgment. Felty v. Graves--Humphreys Co., 818 F.2d1126, 1128 (4th Cir. 1987) (citing Ash v. United Parcel[*193] Serv., Inc., 800 F.2d 409, 411--12 (4th Cir. 1986)).Moreover, the mere existence of some factual dispute isinsufficient to defeat a motion for summary judgment;there must be a genuine issue of material fact. Anderson,477 U.S. at 247--48. Thus, only disputes over those factsthat might affect the outcome of the case under the gov-erning law are considered to be "material." Id.Finally, in assessing such a motion, the Court mustview the evidence and all justifiable inferences in the lightmost favorable to the party opposing the motion. UnitedStates v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d176, 82 S. Ct. 993 (1962) (per curiam). ---------------------------------