USCA1 Opinion
United States Court of Appeals
For the First Circuit
_________________________
No. 93-1295
CHARLES STELLA, ET AL.,
Plaintiffs, Appellants,
v.
TOWN OF TEWKSBURY, MASSACHUSETTS, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Jack E. Tanner,* Senior U.S. District Judge]
__________________________
_________________________
Before
Selya and Stahl, Circuit Judges
______________
and Fuste,** District Judge.
______________
_________________________
Harvey A. Schwartz, with whom Siobhan M. Sweeney and
____________________ ____________________
Schwartz, Shaw & Griffith were on brief, for appellants.
_________________________
Kimberly M. Saillant, with whom Morrison, Mahoney & Miller
____________________ ___________________________
was on brief, for appellees.
_________________________
September 14, 1993
_________________________
_________________________
*Of the Western District of Washington, sitting by designation.
**Of the District of Puerto Rico, sitting by designation.
SELYA, Circuit Judge. Over twenty-four centuries ago,
SELYA, Circuit Judge.
______________
a Greek philosopher warned that "[h]aste in every business brings
failures." VII Herodotus, Histories, ch. 10. This appeal
_________
illustrates that courts are no exception to the rule. The tale
follows.
I
I
Plaintiffs, former members of the Zoning Board of
Appeals of Tewksbury, Massachusetts, claimed that defendants (the
town and various municipal officials) had ousted them in
derogation of their First Amendment guarantees. They brought
this civil rights action in federal district court seeking, inter
_____
alia, reinstatement and money damages. The case proceeded
____
uneventfully through the discovery phase. The day of trial found
the parties ready for a full-dress courtroom confrontation. But
even as the attorneys surveyed prospective jurors, a visiting
judge, new to the case, directed defendants to move then and
there for summary judgment. The judge accepted a perfunctory
oral motion and gave the parties thirty minutes in which to
prepare for argument. Plaintiffs objected to this procedure
without avail. Following a hearing that consisted mainly of
counsels' haranguing, the judge again brushed aside plaintiffs'
protest anent the procedure and informed the parties that he
would issue a bench decision three days later. When the
litigants appeared as ordered, a further exchange occurred,
culminating in the entry of summary judgment for defendants.
This appeal ensued.
2
Although we understand defendants' entreaties that we
turn a blind eye to procedural irregularities and focus instead
on whether the presence of genuine issues of material fact can be
discerned, we decline to delve into the substantive aspects of
plaintiffs' cause of action. Given the case's posture,
leapfrogging to the merits would display much the same disregard
for established protocol that marred the district court's
performance. Courts cannot make up new rules as they go along,
whether to promote notions of judicial economy or to suit a
judge's fancy. Because the lower court employed a flawed
procedural regime, we reverse its ruling, vacate the judgment,
and reinstate the case for trial.1
II
II
Although defendants moved orally for summary judgment,
their motion was made at the direction of the court. Placing
substance over form, we regard what transpired as the functional
equivalent of a sua sponte grant of summary judgment. To be
___ ______
sure, district courts possess the power to trigger summary
judgment on their own initiative, see, e.g., Jardines Bacata,
___ ____ _________________
Ltd. v. Diaz-Marquez, 878 F.2d 1555, 1560 (1st Cir. 1989), but
____ ____________
the power is invariably tempered by the need to ensure that the
parties are given adequate notice to bring forward their
evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 326
___ ______________ _______
____________________
1We express no opinion as to whether defendants should be
allowed, at this late date, to file a properly authenticated
motion for summary judgment in the court below. That matter as
well as the related matter of the viability of such a motion, if
filed is for the district court.
3
(1986); Jardines Bacata, 878 F.2d at 1561; Bonilla v. Nazario,
________________ _______ _______
843 F.2d 34, 37 (1st Cir. 1988). In this connection, we have
warned that a court's power to grant summary judgment sua sponte
___ ______
should be used with great circumspection. As the case before us
illustrates, "[c]ourts that yearn for the blossom when only the
bud is ready act at their peril; proceeding with unnecessary
haste frequently results in more leisurely repentance." Jardines
________
Bacata, 878 F.2d at 1560-61.
______
Although summary judgment is a useful shortcut leading
to final adjudication on the merits in a relatively small class
of cases, its proper province is to weed out claims that do not
warrant trial rather than simply to clear a court's docket. To
allow summary judgment, a court must find, after studying the
parties' evidentiary proffers and giving the benefit of
reasonable doubt to those against whom the motion is directed,
that there is no genuine issue of material fact in dispute and
that the motion's proponent is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c). Since Rule 56 provides in
___
part that motions for summary judgment "shall be served at least
10 days before the time fixed for the hearing," and expressly
allows nonmovants to "serve opposing affidavits" at any time
prior to the day of the hearing, id., summary judgment targets
___
should be secure in the knowledge that they will have at least
ten days in which to formulate and prepare their best opposition
to an impending motion. In our view, this notice requirement is
not mere window dressing.
4
Sua sponte summary judgments are a special subset.
___ ______
There are two particular conditions precedent that attach when
the subset is deployed. First, the discovery phase must be
sufficiently advanced that the court can make an accurate
determination of "whether a genuine issue of material fact does
or does not exist," Jardines Bacata, 878 F.2d at 1561, and,
________________
relatedly, for the litigants to know what material evidence
likely can be adduced. Second, the target "must have been on
notice to bring forth all of its evidence on the essential
elements of the critical claim or defense." Id. Proper notice
___
affords parties opposing summary judgment the opportunity to
inform the "court precisely what they intend to prove and how,
before [the court] can say there are no `genuine' and `material'
issues of fact." Bonilla, 843 F.2d at 37; see generally 10A
_______ ___ _________
Charles A. Wright et al., Federal Practice and Procedure 2720
_______________________________
at 34 (1983) (explaining why "great care must be exercised to
assure that the [unsuccessful party] has had an adequate
opportunity to show that there is a genuine issue and that his
opponent is not entitled to summary judgment as a matter of
law").
Waiver aside,2 it is well settled in this circuit that
____________________
2In the summary judgment context as elsewhere, notice can be
waived. See, e.g., Osbakken v. Venable, 931 F.2d 36, 37 (10th
___ ____ ________ _______
Cir. 1991); Morrison v. Washington County, Ala., 700 F.2d 678,
________ ________________________
683 (11th Cir.), cert. denied, 464 U.S. 864 (1983); see also
_____ ______ ___ ____
United States v. Olano, 113 S. Ct. 1770, 1777 (1993) ("Deviation
_____________ _____
from a legal rule is `error' unless the rule has been waived.").
We need not explore the implications of waiver in this instance,
however, as plaintiffs objected in a timely manner to the
unorthodox procedure imposed by the lower court and, thus, fully
5
all summary judgment proceedings, including those initiated by
the district judge, will be held to the standards enunciated in
Rule 56 itself. See Donate-Romero v. Colorado, 856 F.2d 384,
___ _____________ ________
387 (1st Cir. 1988). Given this benchmark, we think that the
notice requirement for sua sponte summary judgment demands at the
___ ______
very least that the parties (1) be made aware of the court's
intention to mull such an approach, and (2) be afforded the
benefit of the minimum 10-day period mandated by Rule 56.
III
III
Against this backdrop, it is painfully apparent that
the case at bar comprises an especially egregious example of a
court, obviously well intentioned, nonetheless unfairly
sandbagging litigants. When plaintiffs appeared for trial, they
had no inkling that the judge might entertain, let alone
initiate, a hearing on summary judgment.3 By like token,
plaintiffs were afforded thirty minutes, rather than the minimum
period of ten days allotted by Rule 56, in order to prepare for
the hearing and marshal their evidence in opposition to brevis
______
disposition. It is, moreover, no sufficient answer to say that
plaintiffs were on notice to be prepared for trial; trial
preparation is neither the same as, nor an acceptable substitute
for, the special sort of preparation, e.g., securing affidavits,
____
needed to oppose a motion for summary judgment.
____________________
preserved their rights.
3Defendants had not previously filed any dispositive motions
despite the fact that the suit had been pending for over two
years.
6
In addition to the flaws already discussed, the
procedure employed below contained a further vice. The "motion"
for summary judgment was never reduced to writing and, in point
of fact, was never fully articulated either by defendants'
counsel or by the district judge. It is a bedrock rule of civil
litigation that a party who has exercised due diligence is
entitled to be apprised of his opponent's theory of the case, and
that rule has particular force in the summary judgment milieu.
See, e.g., D. Mass. Loc. R. 56.1 (stipulating that motions for
___ ____
summary judgment must "include a concise statement of the
material facts of record as to which the moving party contends
there is no genuine issue to be tried," together with paginated
references to deposition transcripts and other relevant
documentation). The rule was flouted in this instance.
IV
IV
We need go no further.4 Sua sponte summary judgment
___ ______
____________________
4We recognize that, in some jurisdictions, improper notice
anent a summary judgment initiative may be considered harmless
error, circumstances permitting. See, e.g., Powell v. United
___ ____ ______ ______
States, 849 F.2d 1576, 1582 (5th Cir. 1988) (holding improper
______
notice to be harmless where "the nonmoving party admits that he
has no additional evidence anyway or . . . the appellate court
evaluates all of the nonmoving party's additional evidence and
finds no genuine issue of material fact"). Assuming arguendo
________
that we would apply the jurisprudence of harmless error in a
concinnous case, the doctrine would not salvage the ruling below.
Here, it is virtually impossible to say with any degree of
confidence that the structural defects in the summary judgment
proceeding produced an entirely benign effect. In combination,
the amorphous character of the motion, the lack of notice, and
the shortness of time for gathering evidentiary materials
resulted in unprepared attorneys attempting hastily to summarize
evidence and arguing at length with the judge about issues which
may have been only tangentially relevant. Consequently, the
absence of harm cannot be gleaned from the record and the
7
is a remedy which, although available, must be handled with care.
In this tricky area of the law, an undue emphasis on speed is a
surefire way to court reversal. So it is here: having
determined that the proceedings below were undertaken too hastily
and without a proper prophylaxis, we sustain the appeal.
Reversed and remanded. Costs to appellants.
Reversed and remanded. Costs to appellants.
______________________ ____________________
____________________
judgment must be reversed.
8
