green
Positive treatment
Quoted verbatim 3×
28.6 score
“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.”
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974
2000
2026
Top citers, strongest first. 23 distinct citers.
How cited ↗
discussed
Cited as authority (verbatim quote)
Ligeri v. Parker
legal memoranda ..., in the summary- 22 judgment context, are not evidence.
discussed
Cited as authority (verbatim quote)
Collett v. Mason County
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.
discussed
Cited as authority (verbatim quote)
Taie v. Ten Bridges LLC
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.
discussed
Cited as authority (rule)
Lawrence Lieberman, et al. v. Target Corporation, et al.
But 15 “oral argument, in the summary-judgment context, [is] not evidence, and do[es] not create 16 issues of fact capable of defeating an otherwise valid motion for summary judgment.” 17 Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974).
discussed
Cited as authority (rule)
Corbin v. Arizona City Fire District
In response, 15 Defendants’ counsel stated that “the Board and Chief Heaton determined that it was 16 necessary to reduce [Plaintiff]’s hours to offset the addition [sic] expenditures caused by 17 her performance issues.” (Doc. 67-15 at 4). 18 Even if Defendants did concede to the Board’s involvement in this letter, 19 “arguments and statements of counsel ‘are not evidence and do not create issues of material 20 fact capable of defeating an otherwise valid motion for summary judgment.’” Barcamerica 21 Int'l USA Tr. v. Tyfield Importers, Inc., 289 F.3d 589 , 593 n.4 (9th Cir. …
discussed
Cited as authority (rule)
Barnes v. Sea Hawaii Rafting, LLC
Kress & Co., 398 U.S. 144, 159-60 , 90 S. Ct. 1598, 1609-10 (1970))). 16/ The only evidence Plaintiff Barnes cites for this point is argument of counsel from a hearing before this Court. “[T]he arguments and statements of counsel ‘are not evidence and do not create issues of material fact.” Barcamerica Int’l USA Tr. v. Tyfield Importers, Inc., 289 F.3d 89 , 593 n.4 (9th Cir. 2002) (quoting Smith v. Mack Trucks, 505 F.2d 1248, 1249 (9th Cir. 1974))). documents to back up his claims is not enough at this late stage in the litigation.
discussed
Cited as authority (rule)
Mann Ex Rel. Estate of LeapSource, Inc. v. GTCR Golder Rauner, LLC
Indeed, the Ninth Circuit in Mack Trucks explicitly recognized that “[Ijegal memo-randa ..., 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.” 505 F.2d at 1249 (citation omitted).
cited
Cited as authority (rule)
Turner Construction Co. v. United States
Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir.1974); see also Laningham v. United States, 2 Cl.Ct. 535 , 554 n. 22 (1983).
cited
Cited as authority (rule)
Farm Credit Bank of Spokane v. Parsons
Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir.1974), citing, James v. The H.M.S.
cited
Cited as authority (rule)
Dreisbach v. Murphy
Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974); William J.
cited
Cited as authority (rule)
Ronald T. Dreisbach, Individually and Dba Dreisbach Enterprises, Inc. v. John Murphy
Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974); William J.
cited
Cited as authority (rule)
Catton v. McDonnell Douglas Corp.
Federal Rule of Civil Procedure, Rule 56(e); Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974). 12.
cited
Cited as authority (rule)
19 Fair empl.prac.cas. 439, 19 Empl. Prac. Dec. P 9136 Joan Abramson v. University of Hawaii, a Body Corporate, Board of Regents, University of Hawaii, Harriet Miziguchi, Wallace S. Fujiyama, Sandra A. Ebesu, Roger C. Evans, John A. Hoag, Ruth Oshiro, Herbert M. Richards, Jr., Kiyoshi Sasaki, Thomas S. Shibano, in Their Respective Capacities as Members of the Board of Regents, University of Hawaii, Fujio Matsuda, President, University of Hawaii, in His Capacity as President of the University of Hawaii
Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974).
cited
Cited as authority (rule)
Abramson v. University of Hawaii
Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974).
cited
Cited as authority (rule)
British Airways Board, 1 v. The Boeing Company
Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9 Cir. 1974).
cited
Cited as authority (rule)
United States v. Lincoln Albert Allen, AKA Bud Allen, Helen Carter Allen, and Lincoln Albert Allen, Jr.
Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974).
discussed
Cited "see"
Paulette Smith v. Edward Agdeppa
See Barcamerica Int’l USA Tr. v. Tyfield Importers, Inc., 289 F.3d 589 , 593 n.4 (9th Cir. 2002) (“[T]he arguments and statements of counsel ‘are not evidence and do not create issues of material fact capable of defeating an otherwise valid motion for summary judgment.’” (quoting Smith v. Mack Trucks, 505 F.2d 1248, 1249 (9th Cir. 1974) (per curiam))).
discussed
Cited "see"
Federal Home Loan Mortgage Corp. v. Margaret A. Butcher
See Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974) (per curiam) (“Legal memoranda and oral argument, in the summary-judgment context, are not evidence, and do not create issues of 4 fact capable of defeating an otherwise valid motion for summary judgment.”).
discussed
Cited "see"
Federal Home Loan Mortgage Corp. v. Butcher
See Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir.1974) (per curiam) (“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.”).
discussed
Cited "see"
Rothe Development Corp. v. U.S. Department of Defense
USA Trust v. Tyfield Importerers, Inc., 289 F.3d 589 , 593 n. 4 (9th Cir.2002); see Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir.1974) (“Legal memoranda ... 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.”); see Truswal Systems Corp. v. Hydro-Air Engineering, Inc., 813 F.2d 1207, 1211 (Fed.Cir.1987) (“We reject the unsupported statements of counsel ....
discussed
Cited "see"
Mann Ex Rel. Estate of LeapSource, Inc. v. GTCR Golder Rauner, LLC
See Smith v. Mack Trucks, 505 F.2d 1248 , 1249 (9th Cir.1974) (citation omitted) (“[A][l] egal memorand[um] ..., in the summary-judgment context, [is] not evidence, and do[es] not create issues of fact capable of defeating an otherwise valid motion for summary judgment.”) That is so in part because “the arguments and statements of counsel are not evidence and do not create issues of material fact capable of defeating an otherwise valid motion for summary judgment.” Barcamerica Intern. v. Tyfield Importers, Inc., 289 F.3d 589 , 593 n. 4 (9th Cir.2002) (internal quotation marks and citat…
discussed
Cited "see, e.g."
Sinsukthaworn v. County of Napa
L.R. 7-5(a); see also 27 Smith v. Mack Trucks, Inc., 505 F.2d 1248, 1249 (9th Cir. 1974) (“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.) The cultivation license, valid 3 from October 2020 to October 2021, “included a CalCannabis Cultivation Licensing Waste 4 Management Plan,” stating Plaintiffs could compost cannabis waste on-site or self-haul the waste 5 to designated locations.
discussed
Cited "see, e.g."
Marceau v. International Brotherhood of Electrical Workers, Local 1269
Compare U.S. v. One Heckler-Koch Rifle, 629 F.2d 1250, 1253 (1980) (treating representations in briefs to the Court as admissions) with Barcamerica Int’l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589 , 593 n. 4 (9th Cir.2002) ("[T]he arguments and statements of counsel ‘are not evidence and do not create issues of material fact capable of defeating an otherwise valid motion for summary judgment.' ”) (quoting Smith v. Mack Trucks, 505 F.2d 1248 , 1249 (9th Cir.1974) (per curiam)). 14 .
Retrieving the full opinion text from the archive…
Charles A. Smith, Dba Smith Landscaping and Excavating
v.
Mack Trucks, Inc., and Automotive Equipment of Washington, and Third Party v. Detroit Diesel-- Allison Division of General Motors Corporation, Third Party
v.
Mack Trucks, Inc., and Automotive Equipment of Washington, and Third Party v. Detroit Diesel-- Allison Division of General Motors Corporation, Third Party
73-2234.
Court of Appeals for the Third Circuit.
Nov 8, 1974.
Published
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.
Nov. 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.
Before BROWNING, ELY and GOODWIN, Circuit Judges.
OPINION
PER CURIAM:
[*~1248]1
The disappointed purchaser of a new Mack Truck appeals from a summary judgment in favor of the seller in this diversity claim for consequential damages.
2
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).
3
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).
[*~1249]4
Affirmed.