Therefore, the undersigned has authority to render an opinion regarding this motion for summary judgment. Since defendant has included matters outside the pleadings in its first motion to dismiss, the court shall treat the motion as one for summary judgment. Because plaintiff successfully identifies issues of fact, the resolution of which may entitle it to judgment against defendant, the motions for summary judgment shall be denied. 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. After a proper motion for summary judgment is made, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial .
Substantive law determines what is material.
Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. 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. The facts are reviewed drawing all reasonable inferences in favor of the non-moving party.