USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-2335
DONALD M. BERKOVITZ, ET AL.,
Plaintiffs, Appellants,
v.
HOME BOX OFFICE, INC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Joseph L. Kociubes, with whom Peter J. Mancusi and Bingham,
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Dana & Gould were on brief, for appellants.
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Kim J. Landsman, with whom Carin G. Reynolds, Patterson,
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Belknap, Webb & Tyler LLP, Andrea J. Pollack, Cornelius J.
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Moynihan, Jr., and Peabody & Brown were on brief, for appellee
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Home Box Office, Inc.
Cornelius J. Moynihan, Jr., with whom Peabody & Brown,
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Joseph J. Santora, Leonard F. Lesser, and Schneck Weltman
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Hashmall & Mischel LLP, were on brief, for appellees Viacom
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International, Inc. and MTV Networks.
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July 22, 1996
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SELYA, Circuit Judge. In this appeal, plaintiff-
SELYA, Circuit Judge.
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appellant Donald M. Berkovitz challenges the district court's
spontaneous entry of judgment in favor of the defendants Home Box
Office, Inc. (HBO) and Viacom International, Inc. (Viacom).1
Although we applaud the district court's innovative case
management and its Briarean efforts to refine the issues for
trial, we believe that in one crucial respect the court went
awry. Consequently, we vacate the judgment and remand for
further proceedings.
I. FACTUAL PREDICATE
I. FACTUAL PREDICATE
We frame the facts in the aspect most beneficial to the
party against whom the district court entered judgment,
consistent with record support. See, e.g., Quaker State Oil
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Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1513 (1st Cir.
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1989).
In early 1984, Berkovitz hit upon an idea for a cable
television channel. He dubbed this concept "The Entertainment
Network" (or, for short, "the TEN plan"). The concept envisioned
a round-the-clock commercial television channel highlighting
lesser-known musical and comedic acts supplemented by talk shows,
movies, and other staples. The concept embodied interactive
features through which the viewing audience could participate in
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1We omit particularized reference to two parties who
necessarily stand or fall with parties whom we have already
mentioned. The omitted parties are plaintiff KDK, Inc. (an
inactive corporation controlled by Berkovitz) and defendant MTV
Networks (a wholly-owned subsidiary of Viacom). Notwithstanding
this exercise of literary license, our opinion is binding upon
all the litigants.
2
contests and offer programming suggestions telephonically.
In February 1985, Berkovitz offered a copy of the TEN
plan to an HBO vice president, Larry Carlson, who accepted the
offer. He then sent the document (which, like all other copies
of the TEN plan mentioned herein, bore the legend "confidential"
on its cover page) to Carlson. Approximately three months later,
HBO disclaimed any interest and returned the submission (although
Berkovitz intimates that HBO retained a copy). In July 1987,
Berkovitz attempted to interest Viacom in the TEN plan. The
chairman's secretary suggested that he forward a copy to Viacom.
He claims to have done so (on the express condition that the
submission was "for [the chairman's] eyes only." He also claims
to have furnished extra copies at Viacom's request and to have
met with an MTV vice-president, Lee Masters, anent the proposal.
Although Masters "raved" about certain aspects of the plan, the
meeting came to naught.
Little daunted, Berkovitz resumed his courtship of HBO.
During the fall of 1987 he met with Carlson, who, Berkovitz
maintains, perused the TEN plan, praised it, agreed to keep its
contents in confidence, and led him to believe that HBO would
help launch the new enterprise and share the fruits with him.
Despite these encomia, and several subsequent telephone
conversations in the same vein, HBO never followed through.2
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2Not surprisingly, Carlson disputes this account. He
testified during a deposition that he found both Berkovitz and
the TEN plan lacking in focus; hence, he refrained from making
any commitments.
3
HBO inaugurated "The Comedy Channel" in November of
1989. Viacom shortly followed suit with "Ha! The Comedy
Network." Late in 1990 the two merged to become "Comedy
Central." Berkovitz insists that these offerings all drew their
inspiration from the TEN plan, and that they did so in blatant
disregard of his proprietary rights.
II. TRAVEL OF THE CASE
II. TRAVEL OF THE CASE
The procedural aspects of this litigation are of
decretory significance. We divide our account into two parts.
A. Initial Proceedings.
A. Initial Proceedings.
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Invoking diversity jurisdiction, 28 U.S.C. 1332,
Berkovitz filed suit in federal district court on January 28,
1991. Judge Skinner drew the case. In the complaint, the
plaintiff alleged that HBO and Viacom pirated his concept without
compensating him, unjustly enriched themselves at his expense,
breached implied-in-fact contracts to pay him if they used the
TEN plan to productive ends, and committed unfair trade
practices. The defendants denied these allegations.
The novelty (or lack thereof) of the TEN plan and its
constituent elements soon became a protuberant bone of
contention. The defendants, positing that New York's substantive
law governed, maintained that Berkovitz had to prove the novelty
of his idea in order to recover under any actionable theory of
the case. Berkovitz, positing that the substantive law of
Massachusetts governed, attempted to parry this thrust on two
levels: he asserted both that his idea was in fact novel, and
4
that in all events a plaintiff whose idea was misappropriated in
contravention of an implied-in-fact contract need not prove
novelty in order to recover.
In time, the defendants moved for summary judgment.
Judge Skinner considered the parties' arguments and reserved
decision. In a rescript dated May 18, 1994, he held (1) that
Massachusetts law supplies the rule of decision, (2) that
Massachusetts does not require a showing of novelty when the
plaintiff alleges the existence of a contractual relationship,
and (3) that the defendants' motions for summary judgment should
therefore be denied on all but the unfair trade practices claim.
The court entered an appropriate order.
B. The Pretrial Conferences.
B. The Pretrial Conferences.
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After Judge Skinner elected senior status, many of his
cases were redrawn. Judge Keeton assumed responsibility for this
case in mid-1994. Although the defendants moved for
reconsideration of the earlier denial of brevis disposition,
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Judge Keeton did not act upon these motions. He instead convened
a series of pretrial conferences in a commendable effort to bring
matters to a head. During the last four conferences (all of
which took place in 1995), the judge concentrated on clarifying
and delimiting the issues to be tried. Because the events that
transpired at these conferences shed considerable light on this
appeal, we set out a brief chronology.
1. The March 21 Conference. The first of the four
1. The March 21 Conference.
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conferences focused primarily on the parties' agreement to
5
bifurcate the trial, separating the issues of liability and
damages. But Judge Keeton also seized this opportunity to
instruct the parties to spell out their legal theories (avoiding
forensic jargon), and directed them to develop a verdict form
suitable for submission to a jury.3
2. The April 27 Conference. At the next conference
2. The April 27 Conference.
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the parties wrangled over a proposed verdict form. The debate
led Judge Keeton to remark that "we're going to have to get
specific" about what elements of the TEN plan were "substantially
used" by the defendants. The judge explained that this degree of
particularization would assist in "structuring the claims and
defenses so that I can understand them, so the jury can
understand them, [and] so that [the litigants] can understand
each other."
3. The June 1 Conference. At the third conference the
3. The June 1 Conference.
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judge cautioned that he would not allow the jury to consider "a
fuzzy claim" and urged the plaintiff's lawyer to "communicat[e]
to me clearly . . . your legal and factual theory." After some
additional discourse (during which the defendants unsuccessfully
sought leave to file fresh motions for summary judgment),
plaintiff's counsel reformulated his position. He pledged that
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3In the course of this conference, plaintiff's lead counsel
made his first attempt to spell out his implied contract theory.
He suggested that there are several elements: "one is, did Mr.
Berkovitz come up with the idea? . . . Two, did he submit it to
the defendants? Three is, did they use it? . . . Four is, did
he submit it . . . to them in a context in which one can imply a
promise to pay for it if they use it? . . . And then if [the
jurors] answer all of those correctly, I would say under that one
theory of the case, then you go to damages . . . ."
6
he would prove (1) an implied agreement between Berkovitz and
each of the defendants for confidential disclosure of the TEN
plan, and (2) the defendants' appropriation of the plan in
derogation of this agreement. The court reiterated its concern
that this reformulation did not enumerate which elements of the
plan were novel and which were used by the defendants. In
addition, the court asked the plaintiff to list the legal
elements of his implied-in-fact contract claim, and plaintiff's
counsel agreed to try again.
4. The July 18 Conference. The plaintiff's outright
4. The July 18 Conference.
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abandonment of any cause of action based on the putative novelty
of any of the elements contained in the TEN plan dominated the
early stages of the final conference. Novelty aside, the defense
maintained that the plaintiff still had not specified the
elements of his remaining implied contract claim.4 The court
reaffirmed its desire that Berkovitz state his cause of action
with particularity. Noting that Berkovitz's proposed jury
instructions, if given, would require the jury to find that HBO
and/or Viacom made "substantial use" of the TEN plan, the court
asked Berkovitz to specify what this portended.
More discussion ensued, but the judge remained
dissatisfied; he reminded Berkovitz's counsel that he had the
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4Following the parties' lead, we use "implied contract" and
words of like import as a rubric to cover not only plaintiff's
implied contract claim but also his embedded claim for breach of
fiduciary duty. Both claims have a common denominator: they
require proof of an agreement or duty to hold Berkovitz's idea in
confidence, and to compensate him for its unauthorized use.
7
authority to require a plaintiff to state with particularity the
theory underpinning his claim, and warned that he might dismiss
the case because Berkovitz had failed to comply with the
particularization orders. The defendants moved orally for
summary judgment on the ground that all the elements of the TEN
plan were in the public domain. The court expressed no interest
in strolling down this road, and the oral motions languished.
In a last-ditch effort to satisfy the court's demands,
Berkovitz's attorney again attempted to articulate his theory of
the case. The lawyer delineated what he termed Berkovitz's
position "from day one": Berkovitz gave the defendants copies of
the TEN plan under circumstances in which a reasonable person
would expect compensation if they (or either of them) used his
work product. Thus, if a defendant had made some beneficial use
of some part of that document, Berkovitz would be entitled to
relief. The court described this iteration of Berkovitz's theory
as postulating an "all factors" approach because it did not
differentiate among the elements of the TEN plan (e.g., it did
not single out which elements the plaintiff claimed had been
misappropriated and used). After expressing its belief that the
approach probably was "incorrect as a matter of law," the court
entered an interlocutory judgment for the defendants but gave
Berkovitz "time for filing something more."
5. The Court's Final Order. Berkovitz who
5. The Court's Final Order.
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apparently believed that the court had entered the interlocutory
judgment either as a sanction for failure adequately to
8
particularize his claim or because it found the "all factors"
approach legally infirm moved for reconsideration. The court
denied the motion and entered final judgment. See Berkovitz v.
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HBO, 1995 WL 791939, at *10 (D. Mass. Oct. 23, 1995). In this
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order the court clarified the basis on which the judgment rested;
in its view, Berkovitz's claim lacked factual grounding. See id.
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at *5. Consequently, the court terminated the case on
substantive grounds. See id. at *9.
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III. DISCUSSION
III. DISCUSSION
Our analysis proceeds in three steps. First, we
examine the lower court's final order and explain why we deem
that order to be a species of sua sponte summary judgment. Next,
we delineate the legal standards that pertain to such judgments.
Finally, we dispose of the appeal.
A. Characterizing the District Court's Final Order.
A. Characterizing the District Court's Final Order.
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We find no fault with the judge's decision to convene a
series of pretrial conferences devoted largely to refining the
issues and ascertaining which issues were fit for the jury's
consumption. Federal district courts enjoy wide discretion in
their crafting of the pretrial process, see, e.g., Cleveland v.
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Piper Aircraft Corp., 985 F.2d 1438, 1450 (10th Cir.), cert.
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denied, 114 S. Ct. 291 (1993); Jensen v. Frank, 912 F.2d 517, 524
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(1st Cir. 1990), and requiring parties to particularize claims or
defenses falls well within the compass of that discretion. In a
related vein, courts may use case management tools to advance the
important purpose of affording "the opposing party fair notice of
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the claims asserted against him and the grounds on which those
claims rest." Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168,
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1171 (1st Cir. 1995).
In this instance, the court made adroit use of its
powers and succeeded in winnowing the plaintiff's claims until
only one claim remained the implied contract claim premised on
the "all factors" approach. There are three possibilities that
might explain why the court entered judgment in the defendants'
favor on this last claim: (1) the claim may have depended upon a
flawed legal theory, or (2) it may have been stated too loosely
(in defiance of the court's particularization orders), or (3) it
may have lacked a sufficient evidentiary predicate. Though the
court criticized the "all factors" approach in various respects
at various times, careful perscrutation of the final order rules
out two of these possibilities. As to legal insufficiency, the
court stated that it had "[a]ssum[ed], without deciding, that
[the "all factors" approach upon which Berkovitz's implied
contract claim depends] is indeed a correct interpretation of the
law in Massachusetts." Berkovitz, supra, at *5. As to the
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particularization orders, the court vouchsafed that the plaintiff
did not violate these orders by failing to furnish a more precise
statement of his implied contract claim. See id. at *9.
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This leaves the third possibility: evidentiary
insufficiency. Unlike the other possibilities, that explanation
is strengthened by the language of the final order. The court
wrote "that the plaintiff has provided no evidence from which a
10
jury could decide . . . that in this case factual circumstances
supporting . . . a duty [of confidentiality] arose at some point
during the negotiations of the parties." Id. at *5. Along the
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same lines, the court added that "[a] jury could not reasonably
find, on this evidence, that factual conditions prerequisite to a
contractual or fiduciary duty existed in this case." Id.
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Consequently, Berkovitz's implied contract claim did not
"survive[] examination on the merits." Id. at *9.
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We will not paint the lily. Since "the district
court speaks to us primarily through its decrees," Advanced Fin.
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Corp. v. Isla Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir. 1984),
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the final order itself is the most likely source of enlightenment
in our quest to understand its nature. Here, the order, fairly
read, discounts the other possibilities and disposes of the
plaintiff's implied contract claim on a substantive ground: lack
of evidence. Accordingly, we are constrained to characterize the
court's action as a spontaneous grant of summary judgment rather
than as a dismissal for either legal insufficiency or want of
compliance with case management orders.
B. Elucidating the Applicable Legal Standards.
B. Elucidating the Applicable Legal Standards.
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It is apodictic that district courts have the power to
grant summary judgment sua sponte. See Celotex Corp. v. Catrett,
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477 U.S. 317, 326 (1986); Stella v. Tewksbury, 4 F.3d 53, 55 (1st
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Cir. 1993); Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555,
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1560 (1st Cir. 1989). Properly deployed, that power can
complement the courts' case management authority. After all,
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pretrial conferences aid district courts in "the formulation and
simplification of the issues, including the elimination of
frivolous claims or defenses." Fed. R. Civ. P. 16(c)(1). Since
this process is designed to promote efficiency and conserve
judicial resources, see In re Two Appeals, 994 F.2d 956, 965 (1st
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Cir. 1993), "[t]here is no reason to require that [the
elimination of non-trialworthy claims] await a formal motion for
summary judgment." Fed. R. Civ. P. 16(c)(1) advisory committee's
note to 1983 amendment; accord Aetna Cas. & Sur. Co. v. P & B
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Autobody, 43 F.3d 1546, 1568 (1st Cir. 1994). Thus, when "the
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pretrial conference discloses that no material facts are in
dispute and that the undisputed facts entitle one of the parties
to judgment as a matter of law," Portsmouth Square, Inc. v.
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Shareholders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985),
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the court may dispose of the entire case by granting summary
judgment sua sponte.5 See Capuano v. United States, 955 F.2d
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1427, 1432 (11th Cir. 1992); Portsmouth Square, 770 F.2d at 869.
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Though a district court may enter summary judgment sua
sponte at, or in consequence of, a pretrial conference, the court
must ensure that the targeted party has an adequate opportunity
to dodge the bullet. To this end, we have placed two conditions
on unbesought summary judgments. First, a district court
ordinarily may order summary judgment on its own initiative only
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5A district court also may grant partial summary judgment
sua sponte, removing some (but fewer than all) of the parties'
claims or defenses from the case. See, e.g., Hubbard v. Parker,
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994 F.2d 529, 530 (8th Cir. 1993); National Expo., Inc. v.
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Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir. 1987).
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12
when discovery is sufficiently advanced that the parties have
enjoyed a reasonable opportunity to glean the material facts.
See Stella, 4 F.3d at 55; Jardines Bacata, 878 F.2d at 1561.
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Second, the court may enter summary judgment sua sponte only if
it first gives the targeted party appropriate notice and a chance
to present its evidence on the essential elements of the claim or
defense. See Celotex, 477 U.S. at 326; see also Jardines Bacata,
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878 F.2d at 1561 ("`Notice' in this context means that the losing
party . . . received a fair opportunity to put its best foot
forward.").
These strictures are not peculiar to sua sponte summary
judgments, but, rather, mirror the general principles that govern
all motions for summary judgment. See Stella, 4 F.3d at 56
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(noting that "it is well settled in this circuit that all summary
judgment proceedings, including those initiated by the district
judge, will be held to the standards enunciated in Rule 56
itself"); Quaker State, 884 F.2d at 1513 (explaining that the
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district court's power to order summary judgment on its own
initiative must be exercised "according to the rigorous protocol
of Rule 56"). This means, of course, that a nisi prius court
must give the targeted party at least ten days within which to
proffer affidavits or other evidence in response to the court's
specific concerns. See Stella, 4 F.3d at 56.
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Appellate review is equally unaffected by the
spontaneous nature of the trial court's action. As with any
other grant of summary judgment, the court of appeals affords
13
plenary review to a decision granting sua sponte summary
judgment, and reads the record in the light most hospitable to
the targeted party. See Quaker State, 884 F.2d at 1513.
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C. Applying the Standards.
C. Applying the Standards.
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These standards inform the disposition of this appeal.
Having scoured the record, we believe that the district court
failed to give the plaintiff adequate notice of the basis for the
action that the court ultimately took, and that, therefore, the
judgment cannot stand. We explain briefly.
When a court charts a procedural route, lawyers and
litigants are entitled to rely on it. A court cannot alter its
bearings mid-course without signalling the impending change to
the parties. See Foster-Miller, Inc. v. Babcock & Wilcox, 46
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F.3d 138, 148-49 (1st Cir. 1995) (pointing out that this
principle is especially pertinent "[w]hen judges elect on their
own initiative to use innovative methods in an effort to
accelerate the progress of a case"); Stella, 4 F.3d at 55-56
______
(applying this principle to a sua sponte summary judgment).
Here, the judge obviously understood the rule, see Berkovitz,
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supra, at *2 (acknowledging the court's obligation to afford "an
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opportunity for counsel opposing the judgment to proffer all
relevant and admissible evidence"), and apparently thought that
he had honored it. See id. at *1 (describing the particularity-
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of-claim orders as requiring Berkovitz "to proffer admissible
evidence sufficient to support the findings necessary to satisfy
the elements of [his] legal theory"); id. at *5 (stating that
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14
Berkovitz was "given an opportunity to proffer any additional
evidence that might be material"). Yet the record simply does
not bear out the court's recollection.
One part of the problem relates to the particularity-
of-claim orders. The court did not reduce those orders to
writing, but delivered them ora sponte at the pretrial
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conferences that we have chronicled. Nonetheless, the
conferences took place in the presence of a court reporter and
transcripts now have been prepared.6 Whatever the court's
intentions, its transcribed words do not require the plaintiff to
proffer evidence of the existence of the implied contracts.
Another part of the problem is that the district court
appears to have changed course without giving the targeted party
sufficient forewarning. When the court informed the plaintiff at
the penultimate (June 1) conference that it might enter an
adverse judgment, it linked this possibility not to evidentiary
insufficiency but to the plaintiff's failure satisfactorily to
comply with the particularity-of-claim orders. See id. at *3.
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At the last conference (July 18) the court reinforced this
linkage by discussing its entry of an interlocutory judgment in
tandem with its comments on the plaintiff's inability to
articulate avenues of legal relief beyond the "all factors"
approach. See, e.g., id. In its written opinion, however, the
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6While the four conferences listed in our chronology were on
the record, the court convened at least one other conference
(November 21, 1994) for which no transcript has been supplied.
The clerk's notes on the docket sheet regarding this conference
are unilluminating.
15
court veered in a different direction. It explained that the
claim predicated on the "all factors" approach would not fly
because "the plaintiff has provided no evidence from which a jury
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could decide, under any plausible interpretation of Massachusetts
cases, that in this case factual circumstances supporting such a
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duty [of confidentiality] arose at some point during the
negotiations of the parties." Id. at *5 (emphasis supplied).
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Prior to making this ruling, the court had neither informed
Berkovitz that it was considering a judgment based on evidentiary
insufficiency nor invited him to marshal and present his proof in
respect to the existence vel non of an implied contract.7 To
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the contrary, the court's pre-ruling statements pointed in the
opposite direction. We cite two examples. At the June 1
conference plaintiff's counsel strove to embellish the elements
of his client's implied contract claim. The court interrupted
him, stating: "I don't want to talk about the proof at this
point. I just want to talk about the legal elements. . . ." The
second example is drawn from the July 18 semble; the court's
declaration on this occasion that the plaintiff's claim was
"incorrect as a matter of law" tended to render any proffer of
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7We note that all parties initially seem to have assumed
that the trial court did not premise the sua sponte judgment on a
dearth of evidence. The plaintiff's motion for reconsideration
makes manifest Berkovitz's belief that the court defenestrated
the case either as a sanction or because the "all factors"
approach failed as a matter of law. By the same token, the
defendants' oppositions to that motion did not attempt to justify
the judgment on the ground that there were evidentiary
deficiencies related to the plaintiff's proof of one or more
contractual relationships.
16
evidence supporting that claim nugatory.
The question that confronts us is not whether the "all
factors" approach is (or is not) legally sound. Similarly, the
question is not whether there is (or is not) adequate evidence in
the record to defeat summary judgment on the "all factors"
approach. The question, rather, is whether the court gave the
plaintiff a meaningful opportunity to cull the best evidence
supporting his position, and to present that evidence, together
with developed legal argumentation, in opposition to the entry of
summary judgment. See Stella, 4 F.3d at 55; Bonilla v. Nazaro,
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843 F.2d 34, 37 (1st Cir. 1988). On this record, we think that
the opportunity if one existed was too poorly defined.8
Nor are we comfortable shifting the blame for the
apparent miscommunication to the plaintiff. To be sure, this
court from time to time has refused to permit appellants to take
advantage of supposed oversights that had not been called to the
district court's attention by way of a timeous motion to
reconsider. See, e.g., United States v. Schaefer, ___ F.3d ___,
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8There are four reasons why it is not a satisfactory answer
to suggest that the plaintiff had an opportunity to proffer this
evidence in connection with the defendants' original Rule 56
motions. First, the defendants forswore any reliance on the
insufficiency of such evidence when they filed those motions.
Second, Judge Skinner neither focused on nor purported to decide
whether the plaintiff could prove the existence of one or more
implied contracts, but, rather, assumed that the defendants had
entered into such contracts. Third, the contours of the case
thereafter changed dramatically, and Judge Keeton explicitly
declined to rule on the defendants' pending motions to reconsider
Judge Skinner's order. See Berkovitz, supra, at *3. Finally,
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the defendants' reconsideration motions (like their original Rule
56 motions) also assumed the existence of the requisite
contractual relationship.
17
___ n.9 (1st Cir. 1996) [No.95-2342, slip op. at 19 n.9]; Grenier
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v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995);
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VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 4-5 (1st
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Cir. 1993). But here, the plaintiff filed a motion to
reconsider, raising all the grounds that were apparent at the
time. It was not until the district court ruled on the
reconsideration motion that the spotlight suddenly swung to
evidentiary insufficiency. While the plaintiff theoretically
might have filed a second motion for reconsideration at that
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time, the appeal period was running; and, moreover, we are
reluctant to fault a suitor who, like Berkovitz, chooses not to
ask a trial court more than once to reconsider an adverse
decision. Discretion, after all, is often the better part of
valor.
We need go no further. It may be that, in the final
analysis, the plaintiff cannot muster enough evidence to ward off
a properly advertised summary judgment but he is entitled to
make the attempt. Since the record fails to show that Berkovitz
had a meaningful opportunity to do so, the district court's sua
sponte entry of summary judgment cannot stand.
The judgment is vacated, and the case is remanded to
The judgment is vacated, and the case is remanded to
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the district court for further proceedings consistent with this
the district court for further proceedings consistent with this
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opinion. Costs in favor of the plaintiff.
opinion. Costs in favor of the plaintiff.
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