Summary Judgment Practice (how to show a fact issue)

Credibility Determinations Creating Triable Fact Issues:

  • In Vaughan v. Carlock Nissan of Tupelo, the plaintiff alleged that a car dealership unlawfully terminated her after she reported several irregularities there to Nissan. No. 12-60568 (Feb. 4, 2014, unpublished). The Fifth Circuit found a credibility issue about her manager’s “bad faith,” noting credibility questions about his claimed justifications for the firing, the ambiguity of his statement that Vaughn had “no right to report these things to Nissan,” and the timing of the termination.
  • A barge moored at a facility operated by Lafarge came loose during Hurricane Katrina and caused extensive damage.  The district court granted summary judgment to Lafarge, finding that the plaintiff’s damage theory was not scientifically credible in light of the observed weather conditions at the time.  The Fifth Circuit agreed that “[t]here is a great deal of testimony supporting Lafarge’s position, to be sure, and little to support the Parish’s, but we are mindful of the summary judgment standard,”  and reversed — noting eyewitness testimony inconsistent with the defendant’s expert analysis.  St. Bernard Parish v. Lafarge North America, Inc., No. 13-30030 (Dec. 19, 2013, unpublished).
  • Davis, a Louisiana prisoner, was attacked and injured by another inmate, Anderson. Davis sued under 42 U.S.C. § 1983, alleging that several prison officials and guards were “deliberately indifferent” to a “substantial risk of serious harm” to his safety. Davis offered a sworn declaration from another inmate who spoke to a guard defendant shortly before the attack, and was told by that guard that Anderson was going to “‘whip that [expletive] Davis in the cell next to him’ and ‘that [expletive] needs a good [expletive] whipping and it is worth the paperwork for him to get it.’” Summary judgment for that guard was reversed and the case was remanded for further proceedings.  Davis v. LeBlanc, No. 12-30756 (Sept. 12, 2013, unpublished).
  • Devon Enterprises was not re-approved as a charter bus operator for the Arlington schools after the 2010 bid process.  Devon argued that it was rejected solely because of its bankruptcy filing in violation of federal law; in response, the district cited safety issues and insurance problems.  An email by the superintendent said “[Alliance] was the company that [AISD] did not award a bid to for charter bus services because they are currently in bankruptcy.”  Calling this email “some, albeit weak, evidence” that the filing was the sole reason for the decision, the Fifth Circuit reversed a summary judgment for the school district.  Devon Enterprises v. Arlington ISD, No. 13-10028 (Oct. 8, 2013, unpublished).

Conclusory Affidavit Does Not:

  • In Vinewood Capital LLC v. Dar Al-Maal Al-Islami Trust, “[t]he only evidence offered by Vinewood in support of the alleged oral contract between Vinewood and DMI for DMI to invest $100 million in real estate [was] Conrad’s deposition testimony and affidavit.”  No. 12-11103 (Oct. 8, 2013, unpublished).  The Fifth Circuit reminded: “[A] party’s uncorroborated self-serving testimony cannot prevent summary judgment, particularly if the overwhelming documentary evidence supports the opposite scenario.” (citing Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004)).Therefore, “[a]s the district court concluded, Conrad’s self-serving testimony is belied by the parties’ contemporaneous written communications and written agreements and is therefore insufficient to create an issue of fact.”