Opinion · Court of Appeals for the Ninth Circuit

Smith v. Mack Trucks, Inc.

505 F.2d 1248

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1974-11-08
Topic
litigation

How later courts describe this case

  • “Legal memoranda and oral 1 acquired property in Clear Lake, California and “obtained a provisional cultivation license from 2 the California Department of Food and Agriculture.” (Id. at 5, 7.
  • “[L]egal 3 memoranda and oral argument are not evidence, and they cannot by themselves create a factual 4 dispute sufficient to defeat a summary judgment motion where no dispute otherwise exists.”
  • “But legal memoranda and oral 4 argument are not evidence, and they cannot by themselves create a factual dispute sufficient to 5 defeat a summary judgment motion where no dispute otherwise exists.”
  • “Legal memoranda ..., in the summary- 22 judgment context, are not evidence.”

Citator

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Cited by
30 opinions
SMITH v. MACK TRUCKS, INC.,505 F.2d 1248(9th Cir. 1974)
CHARLES A. SMITH, DBA SMITH LANDSCAPING AND EXCAVATING, PLAINTIFF-APPELLANT,
v. MACK TRUCKS, INC., AND AUTOMOTIVE EQUIPMENT OF WASHINGTON, DEFENDANTS AND
THIRD PARTY PLAINTIFFS-APPELLEES, v. DETROIT DIESEL — ALLISON DIVISION OF
GENERAL MOTORS CORPORATION, THIRD PARTY DEFENDANT-APPELLEE.
No. 73-2234.
United States Court of Appeals, Ninth Circuit.
November 8, 1974.
Edward J. Reasor (argued), Anchorage, Alaska, for plaintiff-appellant.

Paul A. Williams (argued), of Burr, Pease Kurtz, Inc., Anchorage, Alaska, for defendants and third party plaintiffs-appellees.
Appeal from the United States District Court for the District of Alaska.
Before BROWNING, ELY and GOODWIN, Circuit Judges.
[1] OPINION
PER CURIAM:
[2] The disappointed purchaser of a new Mack Truck appeals from a summary judgment in favor of the seller in thisPage 1249diversity claim for consequential damages.

[3] In support of its motion for summary judgment under Fed.R.Civ.P. 56, the seller filed an affidavit and an exhibit setting forth its version of the facts. The purchaser failed to file a counteraffidavit, but orally asserted in the district court that unresolved questions of fact existed. (The only possible question of fact was whether or not a disclaimer of warranty appearing in the purchase order had been "bargained for" within the meaning of Washington law.) A legal memorandum handed to the court in opposition to the summary judgment also purported to tender factual questions, but did not constitute an affidavit or other evidence within the meaning of Rule 56(e).

[4] On this record, there was no error. Legal memoranda and oral argument, in the summary-judgment context, are not evidence, and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. James v. The H.M.S. Port Lyttleton Port Line Limited, 51 F.R.D. 216, 218 (E.D.Pa. 1971). Further, any allegations fact contained in appellant's complaint do not create an issue against a motion for summary judgment supported by affidavit. First National Bank v. Cities Service Co.,391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Chapman v. Rudd Paint Varnish Co.,409 F.2d 635, 643 (9th Cir. 1969); C. Wright, Federal Courts § 99, at 444 (1970).

[5] Affirmed.Page 65