                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 6, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-20274
                         Summary Calendar



MARILYN FORD-EVANS

                     Plaintiff - Appellant

     v.

DANIEL SMITH, Individually; UNITED SPACE ALLIANCE LLC

                     Defendants - Appellees



          Appeal from the United States District Court
           for the Southern District of Texas, Houston
                         No. 4:04-CV-3344


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     In this case, we decide whether the district court properly

granted defendant-appellant United Space Alliance, LLC summary

judgment on plaintiff-appellant Marilyn Ford-Evans’s interference

claim under the Family and Medical Leave Act.   For the reasons

stated, we AFFIRM in part, VACATE in part and REMAND for further

proceedings.




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                        I. PROCEDURAL HISTORY

     Plaintiff-appellant Marilyn Ford-Evans brought this action

against her former employer, defendant-appellee United Space

Alliance, LLC (“USA”), and against her former supervisor at USA,

Daniel Smith.1    In her February 7, 2005 amended complaint

(“complaint”), Ford-Evans brought claims under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et. seq., and the

Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et. seq.,

and she also brought a state-law claim for slander.      USA moved

for summary judgment, and Ford-Evans did not respond.      The

district court granted USA summary judgment, dismissing all of

Ford-Evans’s claims against it.

     Ford-Evans subsequently filed a motion to alter or amend

judgment.    In her motion, she did not contest the district

court’s granting of summary judgment as to her ADA claim, her

FMLA retaliation claim, and her slander claim; instead, she

asserted that the granting of summary judgment as to her FMLA

interference claim was improper because USA had not moved for

summary judgment as to this claim.      The district court denied

Ford-Evans’s motion on the basis that her complaint did not

adequately allege FMLA interference.      Ford-Evans timely appealed.

She appeals only the district court’s grant of summary judgment

as to her FMLA interference claim.


     1
         Smith is not a party to this appeal.

                                  -2-
                          II. DISCUSSION

A. Standard of Review

     We review a grant of summary judgment de novo, applying the

same standards as the district court.     Riverwood Int’l Corp. v.

Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir. 2005)

(citing Burch v. City of Nacogdoches, 174 F.3d 615, 618 (5th Cir.

1999)).   The “party seeking summary judgment always bears the

initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.”   Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994) (en banc) (per curiam).    “If the moving party

fails to meet this initial burden, the motion must be denied,

regardless of the nonmovant’s response.”    Little, 37 F.3d at

1075.   Only “[i]f the movant . . . meet[s] this burden [must] the

nonmovant . . . go beyond the pleadings and designate specific

facts showing that there is a genuine issue for trial.”     Id.

(emphasis added) (citing Celotex, 477 U.S. at 325).    “[E]ven when

the non-movant bears the burden of proof at trial, ‘simply filing

a summary judgment motion does not immediately compel the party

opposing the motion to come forward with evidence demonstrating


                                -3-
material issues of fact as to every element of [her] case.’”

Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993) (quoting Russ

v. Int’l Paper Co., 943 F.2d 589, 591 (5th Cir. 1991) (per

curiam)).   Moreover, “[a] motion for summary judgment cannot be

granted simply because there is no opposition, even if the

failure to oppose violated a local rule.”   United States v.

Wilson, 113 F. App’x 17, 18 (5th Cir. 2004) (per curiam)

(unpublished opinion) (quoting Hibernia Nat’l Bank v.

Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th

Cir. 1985)); see also John v. Louisiana, 757 F.2d 698, 709 (5th

Cir. 1985).

B. Analysis

     USA contends that Ford-Evans did not adequately plead an

FMLA interference claim.   But it is clear that in her complaint

Ford-Evans put USA on notice that she intended to pursue an FMLA

claim not only for retaliation but also for interference.    FMLA’s

interference provision makes it “unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt

to exercise,” any substantive FMLA right.   29 U.S.C.

§ 2615(a)(1); see also Haley v. Alliance Compressor LLC, 391 F.3d

644, 649 (5th Cir. 2004); Kauffman v. Fed. Express Corp., 426

F.3d 880, 884 (7th Cir. 2005).   In a section of the complaint

titled “VIOLATIONS OF FAMILY MEDICAL LEAVE ACT,” Ford-Evans

alleged that USA “unlawfully interferes, restrains and/or denies



                                 -4-
its employees [sic] exercise and/or attempts to exercise rights

provided under the [FMLA].”   R. 65, Am. Compl. ¶ 14.   This

language tracks § 2615(a)(1), FMLA’s interference provision.     The

same section of the complaint states that Ford-Evans seeks

restoration to the position that she held when her FMLA leave

commenced; the right to reinstatement upon return from leave is a

right protected by FMLA’s interference provision.   Haley, 391

F.3d at 649; Kauffman, 426 F.3d at 884.

     It is true that the complaint contained a dearth of factual

details supporting Ford-Evans’s FMLA interference claim.    But USA

chose not to challenge the sufficiency of her pleadings either in

a Rule 12(b)(6) motion to dismiss or in a Rule 12(e) motion for a

more definite statement.   Instead, USA ignored any pleading

inadequacy, even though it knew that Ford-Evans intended to rely

upon an FMLA interference theory of recovery.2

     Although USA moved for summary judgment on all of Ford-

Evans’s claims, in its motion and brief it addressed only the ADA

claims, the FMLA retaliation claim, and the state-law slander

claim; it did not attempt to address the FMLA interference claim.

With respect to this claim, USA did not discharge its initial

burden of informing the court of the basis for its motion and



     2
       USA’s knowledge that Ford-Evans brought an interference
claim is evident in the parties’ Joint Discovery/Case Management
Plan, wherein USA repeatedly acknowledged Ford-Evans’s claim for
“wrongful denial of medical leave.”

                                -5-
pointing to the absence of a genuine issue of material fact;3

consequently, to survive summary judgment on her interference

claim, Ford-Evans was not obligated to respond.

                          III. CONCLUSION

     For the foregoing reasons, the judgment of the district

court is VACATED to the extent that it dismisses the FMLA

interference claim.   In all other respects, the judgment of the

district court is AFFIRMED.   The case is REMANDED for further

proceedings.   Costs shall be borne by USA.




     3
       Moreover, the arguments USA made with regard to Ford-
Evans’s FMLA retaliation claim would not apply to her
interference claim.

                                -6-
