3d DCA Watch -- Court Holds Nose, Reverses SJ.

".....we are constrained...."

Anytime you see that in a opinion, you know the judge is just seething at having to do something she really doesn't want to do and thinks is probably wrong.

So let's see whose nose is pinched in an uncomfortable manner this week in our world-famous, completely affectionate and surprisingly snark-free 3d DCA Watch:

The hardest working future judge I know, the Big Man himself, Miguel de la O, scores an impressive SJ reversal using that pesky thing known as the "laughably loosey-gooesy state court summary judgment standard":
On this state of the record, the trial court granted Defendants’ Motion to Prohibit Phillips’ Testimony, describing it as “a matter of bold face, on the record, lies.” We are hard-pressed to disagree with the trial court’s assessment of Phillips’ testimony. However, unaided as we are by the laudably less exacting federal summary judgment standard to which we might like to have access in this case, see e.g., Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-1480 (6th Cir. 1989) (discussing the “new era” in federal summary judgment jurisprudence where a trial court may summarily dispose of an action “[w]here the record taken as a whole could not lead a rational trier of fact to find” for the respondent) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)), we are constrained2 to reverse and remand this case for further proceedings.
I also like footnote two, which basically warns plaintiff's counsel on remand not to suborn perjury.

Special appellate advocacy award to whomever can correctly guess the author of this one.


  1. Shepherd. What's my prize a spin in the van?

  2. Oh please! They have been applying a stricter standard on summary judgment than the federal courts for at least three years, and avoiding the applicable standard with pcas. This just gave Shepherd a double dip--the opportunity to call for formal application of the federal standard and to threaten a plaintiff's lawyer with Bar issues. I'm sure he's kvelling.

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