The Sixth Circuit's split decision in Harris v. J.B. Robinson Jewelers raises thought-provoking questions about application of the Rule 56 summary judgment standard. The pro se plaintiff claimed that the defendant replaced a 2.35-carat pink diamond in her wedding ring with a smaller, colorless stone when she left the ring for resizing. The district court granted the defendant's motion for summary judgment, which relied principally on expert opinion explaining why the stone in the ring was likely the original. In doing so, the court disregarded the plaintiff's testimony, and her supporting affidavits regarding the color of the original stone, as inadmissible lay opinion.

The Sixth Circuit reversed. The majority held that the plaintiff's evidence was not inadmissible and that it was sufficient to withstand the motion for summary judgment. In fact, the majority held that three sentences from the plaintiff's deposition -- "It was not the same color. It was not the same size. It was nothing like the one I took into the store that I had for 29 years." -- were sufficient in themselves to create a genuine issue of material fact. Judge Guy dissented on the grounds that no rational jury, viewing the record as a whole, could find in the plaintiff's favor.

Although this case was decided on a motion for summary judgment rather than a motion to dismiss, Judge Guy invoked the concept of "plausibility" that informed the Supreme Court's recent Rule 12(b)(6) decisions in Twombly and Iqbal. His dissent raises the question whether summary judgment can be appropriate notwithstanding the existence of admissible evidence on both sides of a material factual dispute. Does the quality, or plausibility, of the evidence matter? Judge Guy's answer is yes: "If a plaintiff's complaint and a supporting witness's affidavit state that the moon is made of green cheese and an affidavit by Neil Armstrong says that it is not, there has not been a fact question created that would make it error to grant a summary judgment." It will be interesting to see if his view is vindicated in future cases.