                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 09-1188


NATASHA SINCLAIR,

                Plaintiff – Appellant,

           v.

MOBILE 360, INCORPORATED;       AUTO   ADVANTAGE;   KEVIN    GEAGAN;
GERALD ELDRIDGE,

                Defendants – Appellees.



                               No. 09-1189


MICHAEL A. KITCHEN,

                Plaintiff – Appellant,

           v.

MOBILE 360, INCORPORATED;       AUTO   ADVANTAGE;   KEVIN    GEAGAN;
GERALD ELDRIDGE,

                Defendants – Appellees.



Appeals from the United States District Court for the Western
District of North Carolina, at Asheville.   Dennis L. Howell,
Magistrate Judge. (1:07-cv-00117-DLH)


Argued:   September 22, 2010                  Decided:      March 3, 2011


Before WILKINSON, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge King wrote
the majority opinion, in which Judge Gregory joined.    Judge
Wilkinson wrote a dissenting opinion.


ARGUED:    Philip J. Roth, Jr., MILLER MARSHALL ROTH, PC,
Asheville, North Carolina, for Appellants.   Kevin Patrick Kopp,
Jacqueline Denise Grant, ROBERTS & STEVENS, PA, Asheville, North
Carolina, for Appellees.   ON BRIEF: Joel Shelton, Arden, North
Carolina, for Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
KING, Circuit Judge:

        Natasha     Sinclair    and   Michael   Kitchen    (collectively,       the

“Appellants”) seek relief from the summary judgment award made

against them in this civil action in the Western District of

North Carolina. 1        Sinclair sued Mobile 360, Incorporated; Auto

Advantage; Kevin Geagan; and Gerald Eldridge (collectively, the

“Defendants”), alleging state and federal wage claims as well as

a state law claim for breach of contract.                    In response, the

Defendants lodged a third-party claim against Kitchen, who, in

turn,       filed   a   counterclaim    against    the    Defendants.      After

discovery      proceedings,     two    separate   summary    judgment    motions

were pursued, the first by Auto Advantage alone and the second

by all of the Defendants.              The second summary judgment motion

was granted by the magistrate judge on January 16, 2009, and

gives rise to this appeal.             See Sinclair v. Mobile 360, Inc.,

No. 1:07-cv-00117 (W.D.N.C. Jan. 16, 2009) (the “Opinion”). 2                   As

explained      herein,    the   magistrate      judge    erred   in   failing   to




        1
       Pursuant to Local Rule 73.1 of the Western District of
North Carolina, the parties stipulated to jurisdiction by a
United States Magistrate Judge, who made the summary judgment
rulings.
        2
       The Opinion can be found at J.A. 835-55.      (Citations
herein to “J.A. __” refer to the contents of the Joint Appendix
filed by the parties in this appeal.)



                                         3
consider pertinent materials in the record when awarding summary

judgment to the Defendants.             We therefore vacate and remand.



                                            I.

       In her amended complaint of June 4, 2008, Sinclair alleged

that       “Defendants   Mobile       360    and    Auto    Advantage    served      as

[Sinclair’s] joint employers,” Geagan was an “officer and owner

of both Mobile 360 and Auto Advantage,” and Eldridge was “an

officer      and/or    owner     of    Mobile      360.”     J.A.    98-99. 3        The

Defendants denied employing Sinclair and, without conceding that

Sinclair      had    performed    work      for    them,   alleged   that,      if   she

performed any such work, it “was solely at the direction of,

 . . .       and    completely       controlled      by,   Michael    Kitchen,       an

independent contractor for Mobile 360.”                    J.A. 131.      Thus, the

Defendants instituted their third-party claim against Kitchen.

In     reply,      Kitchen   denied      being     an   independent     contractor,

alleging instead that “Defendants Mobile 360 and Auto Advantage

served as Kitchen’s joint employers.”                   J.A. 111.     Kitchen also

denied hiring Sinclair, alleging that the Defendants had done

so.         Kitchen    filed     a     separate      counterclaim     against        the

       3
       Sinclair’s initial complaint was filed in March 2007. Her
amended complaint of June 2008 is the operative complaint in
this appeal. It was prepared and filed by Sinclair’s counsel of
record at the time, Michael Wimer, Esq., of Asheville, North
Carolina.



                                            4
Defendants, realleging all (save one) of the claims pursued by

Sinclair.        Kitchen also alleged that he had been recruited by

Geagan to work for both Auto Advantage and Mobile 360, that he

had been trained at Auto Advantage, and that his paychecks were

written by Auto Advantage. 4

      On    May    12,   2008,    after     discovery     was   conducted,    Auto

Advantage filed the initial Federal Rule of Civil Procedure 56

motion     for    summary     judgment   (the   “First    Motion”),   contending

that, under the evidence, there was no relationship between it

and   Mobile      360,   no    employment     relationships     had   been   shown

between it and either of the Appellants, and, as a matter of

law, the Appellants’ breach of contract claims were preempted by

the Fair Labor Standards Act.             On June 16, 2008, the Appellants,

by counsel, responded to the First Motion by filing a joint

response thereto (the “Counseled Response”).

      The Counseled Response contended that Sinclair and Kitchen

both worked for Auto Advantage and that all factual assertions

to the contrary were genuinely disputed.                 The Counseled Response

included the affidavits of Sinclair and Kitchen, a deposition of


      4
       Kitchen first filed his counterclaim on June 21, 2007.
His amended counterclaim of June 4, 2008, is the operative
counterclaim in this appeal.    In defending against the third-
party   claim  and   pursuing   his   counterclaim  against  the
Defendants, Kitchen was represented by lawyer Michael Wimer, who
was then representing Sinclair as well.



                                          5
Eldridge, and nine other exhibits (“Ex. A” through “Ex. I”).

The Appellants’ affidavits specified that they had each been

recruited by Geagan and Eldridge to work for Auto Advantage and

Mobile 360, that they had been trained by and performed work at

Auto Advantage, and that they worked at the direction of both

Geagan and Eldridge.       In his affidavit, Kitchen averred that he

was paid by Auto Advantage, specifying checks issued by that

business. 5

      On June 30, 2008, Auto Advantage replied to the Counseled

Response, contending, inter alia, that the invoices in “Ex. C”

of the Response had been fabricated, that any payments by Auto

Advantage to Mobile 360 were made on behalf of Geagan, and that

the Appellants could not show that any of their work at issue

had   been     performed   for   Auto   Advantage   (“Auto   Advantage’s

Reply”).      Oral argument on the First Motion was twice continued,

once at the request of the Defendants and once again at the


      5
       The affidavits that were part of the Counseled Response
also explained the relevance of the nine other exhibits, which
were: “Ex. A” — a record of Sinclair’s hours worked; “Ex. B” —
a record of Kitchen’s hours worked; “Ex. C” — invoices of Mobile
360 for work performed on customers’ vehicles; “Ex. D” — checks
from Auto Advantage to Mobile 360; “Ex. E” — checks from Auto
Advantage to Kitchen; “Ex. F” — checks from Auto Advantage to
other Mobile 360 employees; “Ex. G” — a check from Mobile 360 to
Sinclair; “Ex. H” — a proposed release terminating Kitchen’s
independent contractor status (which Kitchen had declined to
sign); and “Ex. I” — Mobile 360’s amended interrogatory
responses.



                                    6
request of the Appellants.              On August 8, 2008, three months

after    filing     the   First   Motion,     Auto     Advantage     withdrew      such

motion without explanation. 6

     Three months later, on November 21, 2008, the Defendants

filed    the    second    Rule    56   motion    for    summary      judgment      (the

“Renewed Motion”), which was materially identical to the First

Motion. 7      Along with the Renewed Motion, the Defendants filed a

motion to dismiss under Federal Rule of Civil Procedure 41(b)

(the “Rule 41(b) Motion”), asserting that the Appellants had

“engaged       in   conduct   utterly     inconsistent        with    the    orderly

administration       of   justice,”    J.A.     351,    and   claiming      that    the

Appellants had “presented falsified evidence as well as provided

incredulous and incredible testimony in what appears to be an

effort to deceive the Court,” J.A. 485. 8




     6
       Neither the Counseled Response nor Auto Advantage’s Reply
were ever withdrawn, and they remain of record in these
proceedings.
     7
       The only distinction between the First Motion and the
Renewed Motion was that the Renewed Motion was made on behalf of
all Defendants and included as exhibits Mobile 360’s responses
to the Appellants’ separate interrogatories.
     8
       Rule 41(b) provides, in pertinent part, that “[i]f the
plaintiff fails . . . to comply with these rules . . . , a
defendant may move to dismiss the action or any claim against
it.”    The basis of the Defendants’ Rule 41(b) Motion was
apparently that the Appellants had failed to comply with the
rules by presenting false evidence and “incredible testimony.”


                                         7
        On     December     5,    2008,      the    Appellants’      lawyer     in    the

underlying proceedings (Mr. Wimer) sought to withdraw from his

representation, because the Appellants were demanding that he

cease    working       on   their    behalf.        On   December     16,    2008,    the

magistrate       judge      conducted     a    hearing    on    Wimer’s      motion    to

withdraw, questioned him about the Renewed Motion and the Rule

41(b)        Motion    (which     were    pending),      and    observed      that    the

Appellants’ responses to those motions were due a week later.

In that hearing, Wimer advised the magistrate judge — in terms

that are important here — that

       after reviewing the motions[,] I think that a
       substantial amount of the work that needs to be done
       to file those [responses] was already performed in
       connection with the withdraw[n First Motion].

J.A.    504.          Indeed,    Wimer    also     advised     the   court    that    the

Appellants were “aware of that.”                   Id.   At the conclusion of the

hearing,        the     magistrate       judge     granted     Wimer’s       motion    to

withdraw.        The order granting withdrawal included a notice to

the Appellants, pursuant to Roseboro v. Garrison, 528 F.2d 309

(4th Cir. 1975), that in response to the Renewed Motion they

“could file affidavits or unsworn declarations made under the

penalty of perjury.”             J.A. 519.

        A week later, on December 23, 2008, the Appellants, then

proceeding pro se, responded separately to the pending motions

(the “Pro Se Responses”).                 The Appellants submitted numerous


                                              8
exhibits with their Pro Se Responses, most of which were copies

of emails, written estimates, and checks.                       The Appellants did

not, however, submit any additional affidavits or declarations

seeking to explain the evidence.                Rather, the Pro Se Responses

asserted    that     the    evidence    “show[ed]     a    very    clear       Employee-

Employer relationship and that Auto Advantage was indeed the

Parent Company of Mobile 360.”                 J.A. 522, 586.               The Pro Se

Responses     did     not     reference       the    affidavits         and     exhibits

contained    in     the     Counseled    Response,        and    made    several     new

accusations, e.g., that the Defendants had threatened to stalk

and poison the Appellants, and that lawyer Wimer had attempted

to intimidate them into accepting a minuscule settlement.                             In

her separate submission opposing the Rule 41(b) Motion, Sinclair

accused    the    magistrate     judge    of    being     part    of    a     conspiracy

against     the     Appellants.         None    of    these       accusations      were

supported by any evidence. 9

     In reply to the Pro Se Responses to the Renewed Motion, the

Defendants argued that the Appellants had failed to satisfy the

provisions of Rule 56, in that they did not specify any material


     9
        We note our disapproval of the various unsupported
allegations made by the Appellants, which appear to be entirely
inappropriate and perhaps sanctionable.    Nonetheless, we are
mindful that such conduct, even by pro se parties, does not
preclude us from applying the controlling legal principles to
the issues presented.



                                          9
facts    that    were    genuinely      in    dispute.   The    Defendants       also

asserted that the Appellants had failed to refute the evidence

submitted       with    the   Renewed    Motion,    which,    according     to    the

Defendants, demonstrated that no employer-employee relationship

ever existed between any of the Defendants and either Sinclair

or Kitchen.

      The January 16, 2009 Opinion granting summary judgment to

the Defendants on the Renewed Motion made no mention of either

the Counseled Response or Auto Advantage’s Reply (papers filed

with respect to the First Motion).                 Furthermore, the magistrate

judge    struck    the    various    exhibits     submitted    with   the   Pro    Se

Responses, ruling that they had not been properly filed by the

pro se Appellants and could not be considered because they were

not supported by explanatory affidavits or declarations.                          See

Opinion 9-10.          The Opinion concluded that, even if the exhibits

had been properly submitted, there was no explanation of how

they demonstrated any genuine issue of material fact.                       Id. at

10.     The Opinion also observed that,

      [i]n search of admissible evidence favorable to
      Sinclair and Kitchen, the court has . . . reviewed the
      Amended Complaint and the Amended Counterclaim to
      determine    whether   those   could   be   considered
      evidentiary.   Close review of such pleadings reveals
      that such were not verified and cannot be considered
      as evidence in this case.

Id. at 10-11.          The Opinion then adopted the facts spelled out in

the Renewed Motion, to the extent the magistrate judge deemed

                                             10
such     facts     corroborated          by     the       Defendants’        uncontroverted

evidence.         On    those    facts,       the    judge    ruled      —   fatal     to   the

Appellants’ state and federal wage claims — that Mobile 360 and

Auto Advantage “were entirely independent of each other,” id. at

17, and that Kitchen was merely an independent contractor of

Mobile 360 who had hired and supervised Sinclair, id. at 18-19.

Additionally, the judge ruled that the Appellants’ state law

breach      of   contract       claims    were       preempted      by   the    Fair    Labor

Standards        Act.     Id.    at   20.           The   Opinion     therefore      awarded

summary judgment to the Defendants on all of the Appellants’

claims, and dismissed the Defendants’ third-party claim against

Kitchen without prejudice.               Id. at 21. 10




       10
       In addressing the Rule 41(b) Motion, the magistrate judge
showed commendable restraint and explained that such motion

       involves allegations that the pro se litigants have
       falsified evidence and committed fraud upon the court.
       These allegations, if true, are troubling and could
       expose the pro se litigants to criminal prosecution.
       Rather than consider such troubling allegations, the
       court has concentrated on the merits in considering
       the summary judgment motion and whether genuine issues
       of material fact mandate trial.

Opinion 3 n.1.       Additionally, after observing that the
Appellants had made allegations in their Pro Se Responses
impugning the integrity of the Defendants and their counsel,
lawyer Wimer, and the magistrate judge himself, the judge struck
“[s]uch unsupported and spurious contentions . . . from the
pleadings as both impertinent and scandalous.”       Id. at 6-7
(citing Fed. R. Civ. P. 12(f)).



                                               11
        The    Appellants         have       timely      appealed           from    the        adverse

judgment.           We     have    consolidated           their        appeals          and    possess

jurisdiction pursuant to 28 U.S.C. § 1291.



                                                  II.

       We     review     de     novo     a   district         court’s       award        of    summary

judgment.          See S.C. Green Party v. S.C. State Election Comm’n,

612 F.3d 752, 755 (4th Cir. 2010).



                                               III.

                                                  A.

       As a threshold matter, we recognize that Federal Rule of

Civil    Procedure         56     has    twice         been    amended       —      effective       on

December 1, 2009, and December 1, 2010 — since the magistrate

judge issued the Opinion of January 16, 2009, awarding summary

judgment to the Defendants.                    Because the Supreme Court has not

“specifie[d]           otherwise,”           we        must         apply     the        amendments

retroactively          unless      we    determine            that    doing        so    “would     be

infeasible or work an injustice.”                             Fed. R. Civ. P. 86(a)(2).

Significantly,           the      2010       amendments         engendered           considerable

changes in relevant summary judgment procedures, including (as

more    fully       explained       below)        changes        that       could       affect     the

outcome       of   this     appeal.          See       Fed.    R.     Civ.    P.        56    advisory

committee’s         note      (clarifying         that        the    2010     amendments          were

                                                  12
intended “to improve the procedures for presenting and deciding

summary-judgment       motions         and       to    make     the    procedures          more

consistent     with    those      already         used     in   many    courts,”         while

leaving   “[t]he      standard       for     granting      summary     judgment      .     .    .

unchanged”).          In     these     circumstances,           it     would       “work       an

injustice” to decide this matter under the 2010 version of Rule

56, and we thus decline to do so.                          Rather, because the 2009

amendments have no substantive effect on the issues before us,

we   appropriately         rely   on       the    2009     version     of    Rule     56       in

rendering our decision.

     As    written     in     2009,        Rule       56   instructed       that     summary

judgment should only be awarded “if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.”                                 Fed. R.

Civ. P. 56(c)(2) (emphasis added).                         In contrast, subdivision

(e)(2)    of   Rule     56    provided           that,     in   opposing       a    properly

supported summary judgment motion, the response to the motion

“must — by affidavits or as otherwise provided in this rule —

set out specific facts showing a genuine issue for trial.” 11                               The


     11
        The version of Rule 56 in effect at the time of the
January 16, 2009 Opinion contained the same subdivision (e)(2)
and included, in its subdivision (c), the above-quoted language
from the 2009 version’s subdivision (c)(2).



                                             13
federal courts have been in some disagreement as to whether,

under Rule 56, a court is obliged to consider the materials “on

file” in deciding whether a “genuine issue as to any material

fact” is shown (as Rule 56(c)(2) indicates).                   Indeed, a majority

of our sister circuits appear to have taken the view that a

court, in assessing a summary judgment motion, may confine its

consideration      to     materials      submitted    with     and       relied    on   in

response    to    the   motion     (as   Rule     56(e)(2)    may     contemplate). 12

Consistent with the majority view, subdivision (c)(3) of the

2010    version    of     Rule   56    now    specifies      that    a    “court    need

consider    only    the    cited      materials,”    though     “it      may   consider

other materials in the record.”               See Fed. R. Civ. P. 56 advisory


       12
       At least seven of our sister circuits have weighed in on
the apparent tension between the language in subdivisions (c)(2)
and (e)(2) of Rule 56. The First Circuit has concluded that the
materials “on file” should be considered by the district court
in ruling on a summary judgment motion.    See Stephanischen v.
Merchs. Despatch Transp. Corp., 722 F.2d 922, 930 (1st Cir.
1983).   The Second Circuit has decided that summary judgment
cannot be awarded “on the ground that the nonmovant’s papers
failed to cite to the record unless the parties are given actual
notice of the requirement.”     See Amnesty Am. v. Town of W.
Hartford, 288 F.3d 467, 471 (2d Cir. 2002).    Five other courts
of appeals have taken the view that requiring a district court
to review materials not relied on by the parties is unduly
burdensome to the judiciary.    See Carmen v. S.F. Unified Sch.
Dist., 237 F.3d 1026, 1029 (9th Cir. 2001); Adler v. Wal-Mart
Stores Inc., 144 F.3d 664, 672 (10th Cir. 1998); Forsyth v.
Barr, 19 F.3d 1527, 1537 (5th Cir. 1994); L.S. Heath & Sons,
Inc. v. AT&T Info. Sys., Inc., 9 F.3d 561, 567 (7th Cir. 1993);
Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 405 (6th Cir.
1992).



                                             14
committee’s         note     (explaining         that       the        2010    version’s

“[s]ubdivision (c)(3) reflects judicial opinions and local rules

provisions        stating   that   the    court       may   decide       a    motion   for

summary judgment without undertaking an independent search of

the record”). 13

      On appeal, the Appellants contend that the district court

erred      when    it   awarded    summary      judgment      to       the    Defendants,

because      it     did     not    consider       their       Counseled         Response.

Specifically, the Appellants contend that, under the plain terms

of Rule 56(c)(2) as it existed in 2009, a court assessing a

summary judgment motion must consider the materials “on file,”

and   the    Counseled      Response     was    “on   file”       in   this    case    when

summary judgment was awarded.                  The Defendants respond that it

was the Appellants’ burden, under Rule 56(e)(2), to bring the

Counseled Response to the court’s attention, and that there was

      13
        It bears mentioning that, although subdivision (c)(3) of
the 2010 version of Rule 56 seems unfavorable to the Appellants,
other provisions could well be helpful to them.     For example,
where a party has failed to properly support or address an
assertion of fact, “subdivision (e)(1) recognizes that the court
may afford [the party] an opportunity to [do so,]” and
“[s]ubdivision (e)(4) recognizes that [orders other than an
award of summary judgment to the opposing party] may be
appropriate.”   Fed. R. Civ. P. 56 advisory committee’s note.
Significantly, the Advisory Committee recognized that “[t]he
choice among possible orders should be designed to encourage
proper presentation of the record” and, of particular relevance
here, that “the court may seek to reassure itself by some
examination of the record before granting summary judgment
against a pro se litigant.” Id.



                                          15
nothing preventing the Appellants from resubmitting, in response

to the Renewed Motion, any exhibits that had been filed as part

of the Counseled Response. 14

                                     B.

     One of our precedents on those aspects of a court record

that should be considered in connection with a summary judgment

motion was authored by our late and distinguished colleague,

Judge Emory Widener.        That 1994 decision, Campbell v. Hewitt,

Coleman   &   Associates,    Inc.,   recognized   that,   in   assessing   a

summary judgment motion, a district court is obliged to consider

its “entire record.”        21 F.3d 52, 55 (4th Cir. 1994) (internal

quotation marks omitted).        The essential facts of the Campbell

case were these:     Mrs. Campbell, who was seriously injured in an

automobile accident, sued in South Carolina state court to have

medical bills paid under her employer-provided health plan.            Id.

at 54.    Because the health plan qualified as an employee welfare

plan within the meaning of ERISA, the action was removed to

federal court.     Id.   The two defendants denied any liability and

filed interrogatories, to which Campbell responded.             Id. at 54-

     14
       The Appellants make two additional contentions on appeal:
first, that their Fifth Amendment rights were violated when
their counsel was permitted to withdraw shortly before their
responses to the Renewed Motion were due; and, second, that the
district court’s Roseboro instruction was legally incorrect and
confusing.   In disposing of this appeal, we need not address
either of those contentions.



                                     16
55.   The defendants then filed motions for summary judgment, to

which Campbell did not respond.             Id. at 55.     The district court

summarily      awarded   such     judgment    to   the     defendants,    simply

stamping their motions “GRANTED WITHOUT OPPOSITION FILED.”                 Id.

      On appeal, we ruled that the district court had erred in

failing   to    consider   Mrs.    Campbell’s      interrogatory     answers     —

which were “on file” in the court record — in conjunction with

its disposition of the summary judgment motion.                    See Campbell,

21 F.3d at 56.       Judge Widener’s opinion was predicated on and

emphasized three principles:

      •     First, in    terms important to this appeal, “[w]hen
            ruling on     a summary judgment motion, a court is
            obligated    to search the record and independently
            determine    whether or not a genuine issue of fact
            exists,”     id. at 55 (internal quotation marks
            omitted);

      •     Second,   “a  court   should not   grant  summary
            judgment ‘unless the entire record shows a right
            to judgment with such clarity as to leave no room
            for controversy and establishes affirmatively
            that the adverse party cannot prevail under any
            circumstances,’” id. (quoting Phx. Sav. & Loan,
            Inc., v. Aetna Cas. & Sur. Co., 381 F.2d 245, 249
            (4th Cir. 1967)); and

      •     Third, “[t]he court should also determine if the
            record   of   filed    depositions,  answers   to
            interrogatories,   admissions,   and  affidavits,
            demonstrates that a genuine issue exists as to
            any material fact,” id. at 55-56.

Applying these principles, we emphasized in Campbell that “the

record before the district court consisted of more than Mrs.

Campbell’s     pleadings   because    she    had   filed    both    answers    and
                                       17
supplemental answers in response to interrogatories.”                            Id. at

56.     As    a      result,     the        Campbell     opinion    concluded      that,

“[a]lthough       Mrs.   Campbell       did     not     file    these     [interrogatory

answers] in response to the motions for summary judgment, the

district     court    should     have        considered     them    when    determining

whether a genuine issue existed as to any material fact.”                        Id.

      Mrs. Campbell’s interrogatory responses are — assessed in

context — strikingly similar to the Counseled Response that the

district court did not consider in this case.                             Of additional

significance in this appeal, the Appellants were proceeding pro

se when the Renewed Motion was litigated and granted by the

magistrate     judge.          Their        appellate    position       concerning     the

court’s failure to consider the Counseled Response is therefore

substantially stronger than the position espoused by Campbell

concerning her interrogatory responses.                        That is, going beyond

the   Campbell       precedent,        we    are   always       obliged    to   construe

liberally the contentions being pursued by pro se parties.                             See

Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).                                  Put

succinctly, we impose on pro se litigants — even those who may

be cantankerous or make extraneous and inappropriate assertions

against their opponents or the court — “less stringent standards

than formal pleadings drafted by lawyers.”                       Erickson v. Pardus,




                                              18
551 U.S. 89, 94 (2007). 15        As such, where “the context . . .

makes clear a litigant’s essential grievance, the complainant’s

additional    invocation   of    general       legal      principles    need   not

detour the district court from resolving that which the litigant

himself has shown to be his real concern.”                 Beaudett v. City of

Hampton,   775   F.2d   1274,    1278       (4th   Cir.    1985).      Here,    the

Appellants’   claims    were    made    clear      not    only   by   the   amended

complaint, amended counterclaim, and Pro Se Responses, but also,

and more importantly, by the Counseled Response.

                                       C.

     In candor, a majority of the other circuits might prefer a

view contrary to our Campbell decision, and that view may have

since been ensconced in Rule 56 by way of the 2010 amendments.

In any event, a careful assessment of the Counseled Response

would not impose an unwarranted burden on the magistrate judge,

for several reasons.       First and foremost, the Appellants were

proceeding pro se, and they are entitled to the “less stringent

standards” applicable to such litigants.                 Second, the magistrate

judge, prior to his Opinion awarding summary judgment to the

Defendants, was on notice of the Counseled Response.                        Indeed,

     15
        Although we apply less stringent standards to pro se
submissions, the principles applicable to our handling of pro se
pleadings are not without limits.      See Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (observing that
“[d]istrict judges are not mind readers”).



                                       19
the Counseled Response was specifically discussed at the hearing

on the motion to withdraw.         See J.A. 504 (lawyer Wimer advising

court “I think that a substantial amount of the work that needs

to be done to file those [responses] was already performed in

connection with the withdraw[n First Motion],” and stating his

clients were “aware of that”).              Third, the Renewed Motion was

materially identical to the First Motion.                  Fourth, the Counseled

Response   may   address    the   contentions        pursued    in    the   Renewed

Motion and place material factual questions genuinely at issue.

Indeed,    the     Counseled      Response         directly      addressed       the

relationship between Auto Advantage and Mobile 360, on the one

hand, and the Appellants, on the other.                     Fifth, and finally,

even   though    the    First   Motion      was    withdrawn,       the   Counseled

Response   and   Auto    Advantage’s     Reply      were    never    withdrawn    or

stricken from the record.         As a result, the Counseled Response

remained   “on   file”     in   this   case       when   summary     judgment    was

awarded to the Defendants.         In such circumstances, the award of

summary judgment to the Defendants must be vacated under the

applicable 2009 version of Rule 56.




                                       20
                              IV.

     Pursuant to the foregoing, we vacate the judgment of the

district court and remand for such other and further proceedings

as may be appropriate.

                                            VACATED AND REMANDED




                               21
WILKINSON, Circuit Judge, dissenting:

     Because I believe the current version of Federal Rule of

Civil Procedure 56 applies to this case, I respectfully dissent

from the majority’s opinion.



                                          I.

     The    previous   version       of   Rule    56   stated   that   a   summary

judgment motion should be granted only if “the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

The “on file” language led to a circuit split as to whether a

district court needed to look beyond the materials cited by the

parties when ruling on summary judgment.                This court adopted the

minority view, placing an affirmative duty on courts to conduct

an independent search of the record.                   See Campbell v. Hewitt,

Coleman & Assocs., Inc., 21 F.3d 52, 55-56 (4th Cir. 1994).

     However, the Federal Rules of Civil Procedure were amended

in 2010, and these amendments eliminated the “on file” language

from Rule 56.        Fed. R. Civ. P. 56.               Rule 56 now explicitly

states     that   district   courts       “need    consider     only   the    cited

materials” when ruling on summary judgment.                     Fed. R. Civ. P.

56(c)(3).     And the current Rule 56 makes clear that parties are

obligated    to   support    their    assertions       with   citations      to   the

                                          22
record.      Fed. R. Civ. P. 56(c)(1).                 If a party neglects this

obligation and “fails to properly support an assertion of fact

or fails to properly address another party’s assertion of fact

. . . the court may: . . . (2) consider the fact undisputed for

purposes of the motion; [and] (3) grant summary judgment if the

motion      and     supporting          materials     --     including          the      facts

considered undisputed -- show that the movant is entitled to it

. . . .”      Fed. R. Civ. P. 56(e).

      As    the    Advisory       Committee      Notes      explain,       these      changes

“reflect[] judicial opinions and local rules provisions stating

that the court may decide a motion for summary judgment without

undertaking an independent search of the record.”                              Fed. R. Civ.

P.   56    advisory    committee’s        note.       Thus,    the     2010      amendments

rejected     our    minority      position       in   Campbell       in    favor      of    the

approach     followed      by     the    majority     of    the     circuits         that   had

considered the issue.             Accordingly, under the current Rule 56,

district courts need consult only those materials cited by the

parties when ruling on summary judgment.

      The      district         court      here       certainly           satisfied         the

requirements of the current version of Rule 56.                           It had no duty

to   consider       the    uncited       Counseled       Response.             Neither      the

majority     nor    the    appellants       dispute      this.        Accordingly,          the

central     issue     in   this    case     --    whether     the     magistrate         judge

should      have    reviewed      the     Counseled        Response       --    is    clearly

                                            23
resolved in favor of the appellees under the current Rule 56.

The critical question, therefore, is whether the 2010 amendments

apply to this action.



                                           II.

      Rule 86(a) explains that amendments to the Federal Rules of

Civil Procedure govern:

      (1) proceedings in             an   action     commenced       after      their
      effective date; and

      (2) proceedings         after       that    date   in    an    action      then
      pending unless:

              (A) the Supreme Court specifies otherwise; or

              (B) the court determines that applying them in a
              particular action would be infeasible or work an
              injustice.

The   2010    amendments      took    effect      during      the    pendency     of    this

appeal,      on   December    1,     2010.        Accordingly,        as   the   majority

properly concludes, they apply to this case unless they “would

be    infeasible     or      work    an    injustice.”              Fed.   R.    Civ.    P.

86(a)(2)(B).        In other words, the presumptive position is that

the new rules apply.

      The relevant question then is whether the exception to this

presumption       applies     --    whether       applying     the    2010      amendments

“would be infeasible or work an injustice.”                           Fed. R. Civ. P.

86(a)(2)(B).        The majority’s interpretation of this exception

swallows the general rule.                It argues that an injustice would

                                             24
occur because the 2010 amendments might change the outcome of

this    case.        If    the    test     for    “injustice”      is    whether       the

amendments could be outcome-determinative, then the amendments

would never apply to any case to which they are relevant.                              But

if the general rule that the amendments apply to pending cases

is to have any force, then the amendments must apply to at least

some cases where they would have an effect.                   After all, it makes

no difference whether the 2010 amendments apply to situations

where they would effect no change.                      Thus, the majority’s view

transforms Rule 86’s presumption that the amendments apply to

pending cases into a guarantee that they will not.

       I respectfully offer a different interpretation of the Rule

86 exception, one consistent with its text and faithful to its

purpose.      This exception is equitable in nature, as evidenced by

its use of the term “injustice.”                   But a litigant with unclean

hands    is   generally      the     last    one     to    receive      such    generous

treatment       as    that       granted     by    this     equitable          exception.

Precision       Instrument        Mfg.     Co.     v.     Automotive       Maintenance

Machinery, 324 U.S. 806, 814 (1945).                      And the appellants here

are    anything      but   deserving.         They      delayed    the    lower    court

proceedings at every turn.                 In fact, the case dragged on for

almost two years, in substantial part due to the appellants’

repeated requests for extensions and late amendments to their

pleadings.        Appellants       then     terminated     their     counsel      at   the

                                            25
eleventh      hour,      a     mere    week     before          their    summary          judgment

responses were due.

       And, finally, the appellants made a litany of unsupported

allegations        in    their   responses          to    the    motion       to     dismiss        and

motion      for    summary     judgment,       including         the     utterly          unfounded

assertions        that    “the   Defendants          had    threatened          to    stalk         and

poison    the      Appellants,”        Majority      Opinion       at     9,    and       that      the

magistrate judge was engaged in a vast conspiracy against them.

My   fine    colleagues        are     right    to       note    that    “[n]one          of    these

accusations were supported by any evidence.”                            Id.

       Throughout the course of this misconduct, the magistrate

judge    exhibited           commendable       patience,         even        though,       as       the

majority observes, appellants’ conduct “appear[s] to be entirely

inappropriate and perhaps sanctionable.”                          Majority Opinion at 9

n.9.     In fact, this may be the first time that this court has

suggested         that   sanctions       may    be       appropriate           for    a    party’s

behavior      and    then      given    that    same       party       the     benefit         of   an

equitable exception.

       Additionally, the notions of injustice and equity embodied

in Rule 86 seem to presume some reliance interest.                                 But there is

no professed reliance interest here.                       Appellants never discussed

which version of Rule 56 applies to their case.                                      Surely they

were aware that the 2010 amendments would be going into effect

just a few short months from oral argument.                                   Indeed, in its

                                               26
order of April 28, 2010, the Supreme Court publicly announced

that the 2010 amendments “shall take effect on December 1, 2010,

and    shall    govern    . . .    insofar      as    just    and    practicable,       all

proceedings then pending.”               Order of April 28, 2010.                And yet

appellants, though represented by counsel on appeal, apparently

attached       no    importance    to    the    question      of    whether     the    2010

amendments would apply to their case and never once mentioned

the matter.

       Beyond the substantive legal arguments, the majority also

seeks to excuse appellants’ behavior because of their pro se

status.    But that frankly is unfair to pro se litigants.                            It is

the unusual pro se litigant who makes baseless accusations of

conspiracy and questions the integrity of the court.                           Moreover,

appellants brought about their pro se status.                         They voluntarily

terminated their attorney at the last minute with full knowledge

that they would have to prepare the summary judgment responses

on their own.

       In any event, the appellants could not truly be said to be

without assistance of counsel when they submitted their Pro Se

Responses.          Quite the contrary.         They had at their disposal the

Counseled Response -- the very same document they now seek to

have    considered        on    remand.         And    this        Counseled    Response

contained their former attorney’s legal arguments regarding the

summary        judgment        motion.          Therefore,          while      appellants

                                           27
technically   may    have     been    pro   se      they    were     not    without    the

assistance of counsel.          All the appellants had to do was attach

the    Counseled    Response     to     their       Pro    Se    Responses,     a     task

certainly within the competency of pro se litigants.                           But they

failed to do so, and they now seek to blame the court for their

oversight.



                                        III.

       I am mystified as to why the equitable exception to the

general rule should be invoked here.                 This exception is reserved

for    extraordinary     circumstances         --    when       it   is    necessary    to

prevent “injustice.”          I submit respectfully that it is wrong for

many    reasons    not   to    follow    the     presumptive         counsel    of     the

Federal Rules in this case.             The injustice arises from applying

the exception, and I regret that appellees and the trial court

must suffer it.          I would affirm the judgment of the district

court.




                                         28
