USCA1 Opinion
May 21, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2134
A.G. EDWARDS, JR.,
Plaintiff, Appellant,
v.
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
AND NYNEX CORPORATION,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy J. Gertner, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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A.G. Edwards, Jr. on brief pro se.
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Julie J. Bernard on brief for appellees.
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Per Curiam. Plaintiff A.G. Edwards, Jr. appeals
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from the district court's grant of summary judgment in favor
of defendants New England Telephone and Telegraph Co. and
NYNEX Corp. We affirm the judgment of the district court for
the reasons stated in the court's Memorandum and Decision.
We add only the following comments:
1. It is plain that the district court liberally
construed plaintiff's pleadings as required by cases such as
Haines v. Kerner, 404 U.S. 519 (1972). Indeed, for purposes
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of its analysis on the merits, it gave plaintiff the benefit
of the doubt and accepted as true his assertion that
defendants owned the telephones in question. The court
nonetheless determined that, aside from speculation and
conjecture, plaintiff had provided no facts tending to show
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that the telephones were defectively designed or that the
sounds the telephones emitted caused his hearing loss.
Despite his pro se status, plaintiff still was obligated to
comply with what the substantive law required. See Eagle Eye
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Fishing Corp. v. United States Dep't of Commerce, 20 F.3d
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503, 506 (1st Cir. 1994) ("[t]he Constitution does not
require judges . . . to take up the slack when a party elects
to represent himself").
2. We also see nothing amiss with the process the
district court employed in deciding defendants' motion for
summary judgment. While the record must be construed in the
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non-movant's favor, that party still must submit specific
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facts sufficient to show a real dispute. Griggs-Ryan v.
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Smith, 904 F.2d 112, 115 (1st Cir. 1990). "[C]onclusory
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responses unsupported by evidence . . . will [not] serve to
defeat a properly focused Rule 56 motion." Id. (citation
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omitted) (non-movant may not simply rest upon his or her
pleadings). As the district court found, plaintiff only
offered his conclusions without specifying any corroborative
facts. Based on this state of affairs, a hearing was not
mandated. Cf. Posadas de Puerto Rico, Inc. v. Radin, 856
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F.2d 399, 400-01 (1st Cir. 1988) (where the facts are
undisputed, a hearing is not necessary). As for plaintiff's
request for more time to substantiate his claims, he does not
indicate exactly what facts additional discovery would
reveal. Thus, the district court did not abuse its
discretion when it implicitly denied this entreaty. See Bank
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One Texas, N.A. v. A. J. Warehouse, Inc., 968 F.2d 94, 100
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(1st Cir. 1992) (a district court may grant summary judgment
despite an opposing party's assertion that discovery would
lead to more facts where the opposing party does not specify
the facts that discovery would reveal).
3. The district court refused to enter a default
judgment against defendants or summarily deny their motion
for summary judgment for failing to confer with plaintiff
prior to filing their motion for summary judgment. See L.R.,
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D.Mass. 7.1(A)(2). The parties had attended a non-productive
settlement conference about a year and a half after plaintiff
began the action. The defendants filed the motion for
summary judgment just six weeks after the settlement
conference. Because plaintiff was not likely to change a
position he had held for over a year in the six-week period
after the abortive conference, the district court did not
abuse its discretion in not imposing such severe sanctions
against defendants. See Gerakaris v. Champagne, 913 F. Supp.
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646, 651 (D. Mass. 1996) (neglecting to confer prior to
filing a motion to dismiss, which was certain to be opposed,
does not warrant the summary denial of the motion).
Affirmed.
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