Stella v. Tewksbury, Town of

• Court: Court of Appeals for the First Circuit
• Decided: September 14, 1993
• Docket: 93-1295
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                                For the First Circuit

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No. 93-1295

CHARLES STELLA, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                      TOWN OF TEWKSBURY, MASSACHUSETTS, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                  [Hon. Jack E. Tanner,* Senior U.S. District Judge]
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                                        Before

                           Selya and Stahl, Circuit Judges
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                             and Fuste,** District Judge.
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               Harvey  A.  Schwartz,  with  whom  Siobhan  M.  Sweeney  and
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          Schwartz, Shaw & Griffith were on brief, for appellants.
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               Kimberly M. Saillant,  with whom Morrison, Mahoney  & Miller
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          was on brief, for appellees.
                                                       
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                                  September 14, 1993
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           *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.
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          a Greek philosopher warned that "[h]aste in every business brings

          failures."   VII  Herodotus,  Histories, ch.  10.    This  appeal
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          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
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          alia,  reinstatement and  money  damages.    The  case  proceeded
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          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
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          sure,  district courts  possess  the  power  to  trigger  summary

          judgment on  their own  initiative, see,  e.g., Jardines  Bacata,
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          Ltd. v.  Diaz-Marquez, 878 F.2d  1555, 1560 (1st Cir.  1989), but
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          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
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               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,
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          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
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          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
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          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
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          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
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          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.
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          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,
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          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
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          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
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          Charles A. Wright  et al., Federal Practice and  Procedure   2720
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          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
                              
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               2In the summary judgment context as elsewhere, notice can be
          waived.   See, e.g., Osbakken v.  Venable, 931 F.2d  36, 37 (10th
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          Cir. 1991);  Morrison v. Washington  County, Ala., 700  F.2d 678,
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          683  (11th Cir.),  cert. denied,  464 U.S.  864 (1983);  see also
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          United States v. Olano, 113  S. Ct. 1770, 1777 (1993) ("Deviation
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          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,
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          387 (1st  Cir. 1988).   Given this  benchmark, we think  that the

          notice requirement for sua sponte summary judgment demands at the
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          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
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          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,
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          needed to oppose a motion for summary judgment.
                              
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          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
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               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
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          States, 849  F.2d 1576,  1582 (5th  Cir. 1988)  (holding improper
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          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
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          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.
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          judgment must be reversed.

                                          8