FILED
                                                                        United States Court of
                     UNITED STATES COURT OF APPEALS                         Appeals
                                                                            Tenth Circuit
                            FOR THE TENTH CIRCUIT
                        _________________________________                  August 17, 2017

ARLIN GEOPHYSICAL; LAURA                                               Elisabeth A. Shumaker
OLSON,                                                                     Clerk of Court

      Plaintiffs,

v.                                                          No. 15-4166
                                                 (D.C. No. 2:08-CV-00414-DN-EJF)
UNITED STATES OF AMERICA,                                     (D. Utah)

      Defendant Counterclaimant -
      Appellee,

v.

JOHN E. WORTHEN; FUJILYTE
CORPORATION,

      Counterclaim Defendants -
      Appellants.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HOLMES, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

      Nearly one decade ago, the Internal Revenue Service filed a notice of federal

tax lien to recover over $12 million in unpaid taxes from John Worthen. In 2015, the

district court granted final judgment for the government on its action to enforce the

tax lien. To satisfy the judgment, the court also ordered the sale of two properties in

      *
        This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
Utah owned by Worthen’s company, Fujilyte Corporation (Fujilyte). Because the

district court granted final judgment without providing Worthen and Fujilyte an

adequate opportunity to respond to the government’s assertion that Fujilyte holds title

to those properties as Worthen’s alter ego or nominee, we vacate the judgment and

the order of sale and remand for further proceedings.

                                             I

       In February 2008, the IRS filed a notice of federal tax lien identifying Laura

Olson, Arlin Geophysical Company (Arlin), and Fujilyte as Worthen’s alter egos or

nominees.1 The lien encumbered 10 properties owned by Arlin, three properties

owned by Olson, and two properties (Properties 14 and 15) owned by Fujilyte. Olson

and Arlin filed the underlying quiet-title action to discharge the lien and quiet title in

their properties.

       The government filed an answer and counterclaim. In its Fifth Amended

Counterclaim, the government asserted two claims; only the second claim is at issue




       1
         The IRS may satisfy a tax deficiency by imposing a lien on the delinquent
taxpayer’s “property” or “rights to property.” Drye v. United States, 

, 55
(1999) (quoting 26 U.S.C. § 6321). The IRS may also impose a lien against “property
held by a third party if it is determined that the third party is holding the property as a
nominee or alter ego of the delinquent taxpayer.” Spotts v. United States, 

, 251 (6th Cir. 2005)); see also Holman v. United States, 

, 1065
(10th Cir. 2007) (“The nominee theory focuses upon the taxpayer’s relationship to a
particular piece of property.”). In determining whether a third party is a taxpayer’s
nominee, “[t]he ultimate inquiry is whether the taxpayer has engaged in a legal
fiction by placing legal title to property in the hands of a third party while actually
retaining some or all of the benefits of true ownership.” 

.

                                            2
in this appeal.2 In that claim, the government sought to enforce the lien as to all 15

properties and named over 30 counterclaim defendants with potential interests in

those properties. See 26 U.S.C. § 7403(b) (“All persons having liens upon or

claiming any interest in the property involved in [a lien enforcement] action shall be

made parties thereto.”). As relevant to this appeal, the government named Worthen,

Fujilyte, John F. Green, and Stephen Homer as counterclaim defendants holding

interests in Properties 14 and 15.

      The government alleged that (1) Fujilyte holds title to Properties 14 and 15,

(2) Fujilyte granted Green a trust deed with respect to both properties in 1996, and

(3) Homer was appointed as successor trustee under the trust deed in 1997. Worthen

and Fujilyte admitted the truth of these allegations. The government further alleged

that Fujilyte’s interests in Properties 14 and 15 arise from either (1) Fujilyte’s status

as a nominee or alter ego of Worthen, or (2) Worthen’s fraudulent transfer of the

subject properties to Fujilyte. Worthen and Fujilyte denied the truth of these

allegations.

      In 2011, Homer filed a motion for partial summary judgment (the Homer

motion) purportedly on behalf of himself and Green.3 Homer asserted that he and


      2
         In the first claim, the government sought to reduce the unpaid balance of the
tax assessments against Worthen to judgment. Worthen and the government jointly
stipulated that Worthen now owes $18 million in unpaid taxes, and the district court
entered judgment in the government’s favor. Worthen doesn’t challenge this
judgment on appeal.
      3
         Green died in March 2008. Homer, Green’s attorney, failed to mention that
fact in the Homer motion.
                                            3
Green had “‘trust deed mortgage’ interests” in Properties 14 and 15, and that those

interests had priority over any interests the government might have through its tax

lien. R. vol. 1, 134.

       In its response opposing the Homer motion, the government disputed or

partially disputed all but one of Homer’s asserted material facts, asserted several

additional material facts, and urged the court to deny the motion for several reasons.

As relevant to this appeal, the government argued that because the statute of

limitations for foreclosing on the trust deed expired in 2003, Homer and the Green

heirs4 had no enforceable interests in Properties 14 and 15. In contrast, the

government argued, it has an enforceable interest in those properties because

(1) Worthen owes unpaid taxes; (2) “the real estate transactions purportedly engaged

in by Fujilyte [to obtain title to those properties] created both a resulting and a

constructive trust in favor of Worthen” under Utah law, R. vol. 2, 27; (3) Fujilyte is

therefore Worthen’s nominee under federal law; and (4) the government’s “federal

tax lien [therefore] reaches the assets held by Fujilyte,” 

Thus, the

government argued, it could rely on its lienholder status to assert the statute-of-

limitations defense against Homer and Green on Worthen’s behalf.




       4
         The government urged the court to deny the Homer motion as to Green
because Green died before the government commenced its enforcement action—a
fact that the government was unaware of until July 2011. The court later granted the
government’s motion to substitute Debra Green Udy, Claudia Green Burton, John M.
Green, and Rebecca Green Eggers (the Green heirs) for Green.

                                            4
       In a series of three docket text orders, the district court sought further input

from Homer before resolving the Homer motion. First, on March 24, 2014, the

district court notified Homer that he had until April 7, 2014, to file a reply to the

government’s response. Homer didn’t file a reply. Next, on July 11, 2014, the court

notified Homer that it might grant summary judgment to the government based on the

statute-of-limitations defense. And it gave Homer until August 1, 2014, to file a

response. See Fed. R. Civ. P. 56(f)(1) (permitting court to grant summary judgment

for nonmovant “[a]fter giving notice and a reasonable time to respond”). Homer

didn’t file a response. Finally, on August 25, 2014, the court directed the government

to prepare a proposed order denying the Homer motion and granting summary

judgment for the government under Rule 56(f)(1). The court gave Homer seven days

from the filing of the proposed order to file objections. Again, Homer failed to file

any objections, while Worthen and Fujilyte did file objections.

      But Worthen and Fujilyte didn’t object to the denial of the Homer motion or

the grant of summary judgment for the government based on the statute of

limitations. Instead, they objected to the first 10 facts in the proposed order and the

portion of the proposed order’s legal analysis resolving that “Fujilyte’s property is

held by it under several theories of alter ego, constructive trust, nominee, etc. for the

benefit of John Worthen.” R. vol. 5, 26. In support, they argued that (1) the legal

analysis wasn’t necessary to resolve the statute-of-limitations issue; (2) the first 10

facts weren’t material to that issue; and (3) the government didn’t support those facts

with evidence as required by Fed. R. Civ. P. 56(c).

                                            5
      After receiving a response from the government, the district court overruled

Worthen and Fujilyte’s objections. The court then entered a separate order largely

adopting the government’s proposed order. In that order (the summary judgment

order), the court denied the Homer motion and granted summary judgment to the

government under Rule 56(f)(1). In adopting the government’s facts, the court noted

both that (1) the government supported those facts with evidence, and (2) Homer’s

failure to reply to the government’s response “le[ft] the [government’s] facts

undisputed.” R. vol. 5, 41 n.13. And in adopting the government’s legal analysis, the

court concluded that any claims Homer and the Green heirs may have had arising

from their interests in the subject properties were time-barred. Critically, for

purposes of this appeal, the court further concluded that Fujilyte holds title to

Properties 14 and 15 as Worthen’s nominee and that the government therefore has an

enforceable lien against those properties.

      In June 2015, the government moved for final judgment and an order of sale.

The government asserted that all issues relating to Properties 14 and 15 had been

resolved; that the summary judgment order resolved all claims against the properties

with respect to Homer, Green, and the Green heirs; and that “the [c]ourt’s summary

judgment order found that the [government] has a lien on Properties 14 and 15

because the properties were subject to constructive and resulting trusts in favor of

[Worthen], and [Fujilyte], the record title holder, was [Worthen]’s nominee.” R. vol.

5, 53. Finally, the government generally asserted that it was entitled to final judgment



                                             6
because “[b]ased on the procedural history, all issues with respect to Property 14 and

Property 15 ha[d] been fully litigated.” 

      In a docket text order entered on June 30, 2015, the court provided a 10-day

deadline for responses to the government’s motion and an additional six days for

filing a reply to any such response. Fujilyte timely responded, disagreeing with the

government’s assertion that all issues relating to the subject properties had been

“fully litigated.” R. vol. 5, 71 (emphasis omitted) (quoting 

And it argued

that because it wasn’t a party to the summary judgment proceeding, it lacked notice

and an opportunity to respond to the government’s position on the nominee issue.

Thus, Fujilyte asserted, the court couldn’t rely on its findings and conclusions from

the summary judgment order regarding Fujilyte’s status as Worthen’s nominee to

grant final judgment for the government against Fujilyte.

      The government disagreed. In its reply, the government argued that Fujilyte

(1) challenged the court’s factual findings in the summary judgment order when

Worthen and Fujilyte objected to the government’s proposed order; (2) Fujilyte is

bound by the court’s findings in the summary judgment order under the law-of-the-

case doctrine; and (3) Worthen and Fujilyte tried but failed to refute the

government’s facts in their response to the motion for final judgment.

      During a hearing on the government’s motion for final judgment, Worthen and

Fujilyte primarily argued that they weren’t bound by the findings and conclusions

from the court’s summary judgment order because they weren’t parties to the

summary judgment proceeding. At one point during the hearing, the court asked,

                                            7
“What evidence—how would it be different—what procedure would you propose be

required to be followed to adjudicate what you claim is unadjudicated?” R. vol. 5,

178. Counsel for Worthen and Fujilyte replied that the government should “file a

motion for summary judgment if [it] want[s] to proceed that way or [let] the matter

go to trial so [Worthen and Fujilyte] have an opportunity to defend [against the

government’s position].” 

2015, the court granted final judgment for the government. In

doing so, the court reasoned that Fujilyte (1) “contest[ed] the [c]ourt’s findings and

failed to refute the [c]ourt’s conclusions” in the summary judgment order by

objecting to the government’s proposed order; (2) failed to appeal from the order

overruling those objections or the summary judgment order; and (3) was barred by

the law-of-the-case doctrine from “re-litigat[ing] Fujilyte’s status as Worthen’s

nominee.” R. vol. 5, 150. That same day, in a separate order, the court ordered the

sale of Properties 14 and 15. Worthen and Fujilyte appeal.

                                           II

      Before considering the merits of this appeal, we must resolve two questions

implicating our jurisdiction: (1) whether the district court’s judgment is final, and

(2) if so, whether the notice of appeal is deficient. We review these questions de

novo. Montez v. Hickenlooper, 

, 1130 (10th Cir. 2011).

      After Worthen and Fujilyte submitted their docketing statement, we issued a

show-cause order directing the parties to address whether the district court’s

judgment was final as to all claims and all parties. See 28 U.S.C. § 1291 (conferring

                                            8
jurisdiction over final decisions); Utah v. Norton, 

, 1286 (10th Cir.

2005) (“A final judgment is one that terminates ‘all matters as to all parties and

causes of action.’” (quoting Dodge v. Cotter Corp., 

, 1221 (10th Cir.

2003))). In response, the parties assert that the district court resolved all claims

against all parties. Having independently reviewed the parties’ responses and the

district court record, we agree. Thus, we find no jurisdictional impediment with

respect to finality.

       But in its response to our show cause order, the government identifies a second

potential jurisdictional issue. Relying on United States v. Simons, the government

argues that the final, appealable order in this case is the order directing the sale of

Properties 14 and 15, not the order granting judgment for the government on its

action to enforce the lien. See 419 F. App’x 852, 855 (10th Cir. 2011) (unpublished)

(“It has long been established that ‘a decree of sale in a foreclosure suit, which settles

all the rights of the parties and leaves nothing to be done but to make the sale and pay

out the proceeds, is a final decree for the purposes of an appeal.’” (quoting Grant v.

Phoenix Mut. Life Ins. Co., 

, 431 (1882))). Thus, the government

reasons that the notice of appeal is jurisdictionally defective because it designates the

order granting judgment, not the order of sale. See Fed. R. App. P. 3(c)(1)(B)

(requiring notice of appeal to designate “judgment, order, or part thereof being

appealed”).

       “Rule 3(c)(1)(B)’s designation requirement is jurisdictional.” Williams v.

Akers, 

, 1078 (10th Cir. 2016). But we construe that designation

                                            9
requirement liberally. 

after pointing out this potential defect in the notice

of appeal, the government urges us to overlook it because the record demonstrates

Worthen and Fujilyte’s intent to appeal from the order of sale. See, e.g., Trotter v.

Regents of Univ. of N.M., 

, 1184 (10th Cir. 2000) (rejecting challenge

to adequacy of notice of appeal when docketing statement clearly set forth issues on

appeal, appellees had notice of issues, and appellees suffered no prejudice from

appellant’s failure to reference specific order).

       We agree that the notice of appeal is sufficient to confer jurisdiction. As the

government points out, (1) the district court issued the judgment enforcing the tax

lien and the order of sale on the same day; (2) the judgment expressly provides for

the sale of the subject properties and references the separate order of sale; and (3) the

docketing statement indicates that the judgment permits the sale of the properties to

satisfy the judgment. Having confirmed our jurisdiction, we turn to the merits.

                                            III

       Worthen and Fujilyte argue that the district court erred in granting the

government’s motion for final judgment and ordering the sale of Properties 14 and

15. Specifically, they contend that the court committed reversible error when it relied

on its findings and conclusions from the summary judgment order regarding

Fujilyte’s purported status as Worthen’s nominee. They argue that those findings and

conclusions cannot bind them because they weren’t parties to the summary judgment

proceeding; thus, they assert that they never had a meaningful opportunity to defend

against the government’s position on the nominee issue.

                                            10
      The government urges us to affirm the final judgment. It asks us to treat the

final judgment as a sua sponte grant of summary judgment under Rule 56(f)(3). And

it argues that the court, as required by Rule 56(f), gave Worthen and Fujilyte notice

and reasonable opportunities to respond to the government’s position on the nominee

issue before entering final judgment.

      Both parties suggest that the appropriate standard of review is the de novo

standard we apply in reviewing summary judgment rulings. But as the procedural

history demonstrates, and as we discuss below, the district court issued only one

summary judgment order: the order denying the Homer motion and granting

summary judgment to the government under Rule 56(f)(1). And Worthen and Fujilyte

don’t challenge that order on appeal.

      Instead, they argue the district court erred in relying on the findings and

conclusions it made in that order when it subsequently granted final judgment to the

government. Specifically, they argue that the district court deprived them of notice

and a meaningful opportunity to be heard. This argument sounds in due process, see

Mathews v. Eldridge, 

, 333 (1976) (“The fundamental requirement of

due process is the opportunity to be heard ‘at a meaningful time and in a meaningful

manner.’” (quoting Armstrong v. Manzo, 

, 552 (1965))), and presents a

legal question that we review de novo, In re C.W. Mining Co., 

, 1244

(10th Cir. 2010).




                                          11
                                             A

       While Worthen and Fujilyte don’t challenge the summary judgment order, a

brief review of the summary judgment proceeding is helpful in understanding their

challenge to the final judgment. As we’ve discussed, Homer moved for partial

summary judgment against the government, asserting that Homer’s and the Green

heirs’ interests in Properties 14 and 15 were superior to the government’s interests in

those properties. The government opposed the Homer motion. In its response, the

government disputed Homer’s asserted facts, asserted its own facts, and asserted a

statute-of-limitations defense. But Homer didn’t reply to the government’s response

even after the court thrice invited him to do so. Thus, the court deemed the

government’s facts undisputed for purposes of the Homer motion. See Fed. R. Civ. P.

56(e)(2) (“If a party . . . fails to properly address another party’s assertion of fact as

required by Rule 56(c), the court may . . . consider the fact undisputed for purposes

of the motion.”). And the court denied the Homer motion.

       The court then applied Rule 56(f)(1) to grant summary judgment to the

government—i.e., the nonmovant—based on the statute-of-limitations defense. Rule

56(f)(1) permits a district court to grant summary judgment for a nonmovant “[a]fter

giving notice and a reasonable time to respond.” There’s no question that the court

gave Homer notice and a reasonable time to respond. And in granting summary

judgment to the government, the court didn’t just rely on Rule 56(e)(2) to deem the

government’s facts undisputed based on Homer’s failure to reply. Rather, the court



                                            12
additionally determined that the government supported those facts with documentary

evidence. See Fed. R. Civ. P. 56(c).

      Worthen and Fujilyte concede on appeal that it “was appropriate” for the

district court to deny the Homer motion and grant summary judgment for the

government and against Homer and the Green heirs under Rule 56(f)(1). Rep. Br. 1.

And we find nothing objectionable about the district court’s application of Rule 56

during the summary judgment proceeding. But as we next discuss, we agree with

Worthen and Fujilyte that the district court erroneously relied on its findings and

conclusions from the summary judgment order—specifically, it’s conclusion that

Fujilyte is Worthen’s nominee—to grant final judgment to the government.

                                           B

      Several months after the court granted summary judgment for the government

and against Homer and Green under Rule 56(f)(1), the government moved for final

judgment. It asserted that it was entitled to final judgment because “all issues with

respect to Property 14 and Property 15 ha[d] been fully litigated.” R. vol. 5, 54.

Specifically, regarding any property interests held by Fujilyte, the government

pointed to the court’s finding from the summary judgment order that “the

[government] has a lien on Properties 14 and 15 because the properties were subject

to constructive and resulting trusts in favor of [Worthen], and [Fujilyte], the record

title holder, was [Worthen]’s nominee.” 

      Four days after the government filed its motion for judgment, the district court

issued a docket text entry, imposing a 10-day deadline for responses. Worthen and

                                           13
Fujilyte timely filed a response opposing the motion; the government filed a reply;

and the court held a hearing on the motion. In granting final judgment for the

government, the court accepted the government’s position that Worthen and Fujilyte

were bound by the court’s findings and conclusions on the nominee issue from the

summary judgment order. In doing so, the court specifically reasoned that Worthen

and Fujilyte (1) objected to the government’s facts in the proposed summary

judgment order, but failed to refute the court’s conclusions on the nominee issue;

(2) failed to appeal the order overruling their objections or the summary judgment

order; and (3) couldn’t relitigate the nominee issue because the law-of-the-case

doctrine barred them from doing so.

      To its credit, the government concedes that Worthen and Fujilyte weren’t

actually parties to the summary judgment proceeding. But it defends the court’s first

reason for granting final judgment by asserting that Worthen and Fujilyte

nevertheless “participated in th[at] proceeding[] when they objected to the

[g]overnment’s proposed order, which addressed the nominee issue.” Aplee. Br. 25.

We reject the government’s position.

      As Worthen and Fujilyte have consistently argued, they weren’t parties to the

summary judgment proceeding. And as they argue on appeal, lodging an objection—

as nonparties—to a proposed order resolving a motion involving other parties doesn’t

have the same procedural impact as responding—as parties—to a motion seeking

summary judgment against them on the nominee issue.



                                          14
       Worthen and Fujilyte’s status as nonparties to the summary judgment

proceeding also requires us to reject the district court’s second stated reason for

concluding they were bound by the summary judgment order. The court faulted

Fujilyte for failing to appeal (1) the order overruling their objections to the proposed

summary judgment order and (2) the summary judgment order itself. But we can

hardly blame Worthen and Fujilyte for not appealing from a summary judgment order

that wasn’t entered against them. And in any event, neither order was final or

certified as final for purposes of an appeal. See Fed. R. Civ. P. 54(b) (“[W]hen

multiple parties are involved, the court may direct entry of a final judgment as to one

or more, but fewer than all, claims or parties only if the court expressly determines

that there is no just reason for delay.”).

       Finally, and for similar reasons, we reject the district court’s third stated

reason for granting final judgment to the government—namely, its application of the

law-of-the-case doctrine. See Gage v. Gen. Motors Corp., 

, 349 (10th

Cir. 1986) (“The law of the case rule applies only when there has been a final

decision.”); see also Fed. R. Civ. P. 54(b) (“[A]ny order . . . , however designated,

that adjudicates fewer than all the claims or the rights and liabilities of fewer than all

the parties . . . may be revised at any time before the entry of a judgment adjudicating

all the claims and all the parties’ rights and liabilities.”); Rimbert v. Eli Lilly & Co.,

, 1251 (10th Cir. 2011) (explaining that “district courts generally

remain free to reconsider their earlier interlocutory orders” until they enter final

judgment (quoting Been v. O.K. Indus., 

, 1225 (10th Cir. 2007))).

                                             15
Consequently, none of the court’s proffered justifications support its conclusion that

Worthen and Fujilyte are bound by the findings and conclusions in the summary

judgment order.

      Perhaps sensing the fragile underpinnings of the final judgment, the

government invites us to treat it as a summary judgment order appropriately issued

under Rule 56(f)(3). Rule 56(f)(3) permits a court to “consider summary judgment on

its own after identifying for the parties material facts that may not be genuinely in

dispute.” Before granting sua sponte summary judgment, the court must give the

losing party “notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f); see

A.M. v. Holmes, 

, 1136-37 (10th Cir. 2016) (“‘While the practice of

granting summary judgment sua sponte is not favored,’ we will affirm the judgment

when the losing party has received adequate notice of the need to marshal evidence.”

(quoting Scull v. New Mexico, 

, 600 (10th Cir. 2000))).

      Relying on A.M., Scull, and other cases involving sua sponte grants of

summary judgment, the government urges us to affirm the final judgment because,

the government argues, Worthen and Fujilyte had notice and three opportunities to

respond to the government’s position on the nominee issue before the court entered

final judgment against them. First, the government points out that Worthen and

Fujilyte “lodged an objection to the [g]overnment’s proposed order granting

summary judgment.” Aplee. Br. 34. But we’ve already rejected the government’s

attempt to equate these nonparty objections with an opportunity to defend against the

government’s position on the nominee issue.

                                           16
      Second, the government argues that its motion for final judgment, and the

court’s order for a response to that motion, put Worthen and Fujilyte on notice that

the court might enter judgment against them on the nominee issue “based upon the

facts as stated in the court’s order granting summary judgment.” Aplee. Br. 35. And,

it argues, the court gave them reasonable time to respond to that motion. Finally, the

government argues that the court gave Worthen and Fujilyte a third opportunity to

address the nominee issue at the motion hearing when the court asked them what

issues they believed were left to be adjudicated.

      But we aren’t persuaded that we should treat the final judgment as a Rule

56(f)(3) summary judgment order. The government’s argument ignores the fact that it

moved for final judgment. See R. vol. 5, 56 (“Upon motion of Defendant and

Counterclaim Plaintiff the United States of America, and for good cause shown, the

Court hereby GRANTS the motion for judgment.” (emphases added)). The existence

of a pending motion necessarily precludes the district court from “consider[ing]

summary judgment on its own.” Fed. R. Civ. P. 56(f)(3). Thus, we decline the

government’s invitation to treat the final judgment as a Rule 56(f)(3) sua sponte

summary judgment order.5


      5
         Even if we were to accept the government’s characterization of the final
judgment as a grant of summary judgment under Rule 56(f)(3), we would conclude
that neither the district court’s 10-day deadline for filing a response to the motion for
final judgment nor the court’s inquiries at the motion hearing provided Worthen and
Fujilyte a meaningful opportunity to respond to the government’s facts and defend
against the government’s legal arguments on the nominee issue.
        Moreover, the government’s reliance on cases discussing the level of notice
that must be given to the losing party before a court sua sponte enters summary
                                           17
      Rather, we will treat the final judgment as it presents itself: as a final judgment

entered for the government and against Worthen and Fujilyte on the basis of findings

and conclusions that the court reached in resolving a dispute between different

parties—i.e., the lien-priority dispute between the government and Homer and Green.

And we conclude that because Worthen and Fujilyte lacked a meaningful opportunity

to defend against the position the government advanced in that dispute, they can’t be

bound by those findings and conclusions.

                                    *      *      *

      The district court erred in adopting the government’s position that all issues

relating to Fujilyte’s purported status as Worthen’s nominee had been fully litigated.

By relying on its findings and conclusions from the summary judgment order, the

district court effectively (1) treated the government’s response in opposition to the

Homer motion as a de facto motion for summary judgment against Worthen and

judgment under Rule 56(f)(3) is misplaced. Critically, none of the cases the
government cites address the peculiar procedural posture presented here—i.e., the
district court denied summary judgment for the movant, granted summary judgment
in favor of a nonmovant under Rule 56(f)(1), and later relied on its findings and
conclusions from the summary judgment order to grant final judgment against two
parties who weren’t parties to the summary judgment proceeding. See, e.g., 

(rejecting plaintiff’s argument that district court erred in granting
summary judgment to nonmovant defendant because court failed to give plaintiff
notice and opportunity to respond to qualified immunity defense asserted by
defendant in response to plaintiff’s summary judgment motion; reasoning plaintiff
anticipated that defense in her motion and filed a reply addressing defendant’s
response); 

(affirming grant of summary judgment to
moving defendants and sua sponte grant of summary judgment to additional
nonmoving defendants; reasoning plaintiff suffered no prejudice because she
responded to moving defendants’ motion and all of the defendants were entitled to
qualified immunity for mainly the same reasons addressed in plaintiff’s response).

                                           18
Fujilyte on the nominee issue, and (2) granted final judgment for the government on

that issue without providing Worthen and Fujilyte a meaningful opportunity to

defend against the government’s position on that issue. Thus, we vacate the judgment

and the order of sale and remand for further proceedings.




                                          Entered for the Court


                                          Nancy L. Moritz
                                          Circuit Judge




                                         19