
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                                                                     _________________________                      No. 93-1295                               CHARLES STELLA, ET AL.,                               Plaintiffs, Appellants,                                          v.                      TOWN OF TEWKSBURY, MASSACHUSETTS, ET AL.,                                Defendants, Appellees.                                                                                     _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Jack E. Tanner,* Senior U.S. District Judge]                                         __________________________                                                                                     _________________________                                        Before                           Selya and Stahl, Circuit Judges                                            ______________                             and Fuste,** District Judge.                                          ______________                                                                                     _________________________               Harvey  A.  Schwartz,  with  whom  Siobhan  M.  Sweeney  and               ____________________               ____________________          Schwartz, Shaw & Griffith were on brief, for appellants.          _________________________               Kimberly M. Saillant,  with whom Morrison, Mahoney  & Miller               ____________________             ___________________________          was on brief, for appellees.                                                                                     _________________________                                  September 14, 1993                              _________________________                                             _________________________           *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.                           ______________          a Greek philosopher warned that "[h]aste in every business brings          failures."   VII  Herodotus,  Histories, ch.  10.    This  appeal                                        _________          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                                                                      _____          alia,  reinstatement and  money  damages.    The  case  proceeded          ____          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                           ___  ______          sure,  district courts  possess  the  power  to  trigger  summary          judgment on  their own  initiative, see,  e.g., Jardines  Bacata,                                              ___   ____  _________________          Ltd. v.  Diaz-Marquez, 878 F.2d  1555, 1560 (1st Cir.  1989), but          ____     ____________          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                      ___  ______________     _______                                        ____________________               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,                  ________________                     _______     _______          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                                                                 ___ ______          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                                                                   ________          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                   ___          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                                             ___          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.                    ___  ______          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,                                ________________          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                                                        ___          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                              _______                    ___  _________          Charles A. Wright  et al., Federal Practice and  Procedure   2720                                     _______________________________          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                                        ____________________               2In the summary judgment context as elsewhere, notice can be          waived.   See, e.g., Osbakken v.  Venable, 931 F.2d  36, 37 (10th                    ___  ____  ________     _______          Cir. 1991);  Morrison v. Washington  County, Ala., 700  F.2d 678,                       ________    ________________________          683  (11th Cir.),  cert. denied,  464 U.S.  864 (1983);  see also                             _____ ______                          ___ ____          United States v. Olano, 113  S. Ct. 1770, 1777 (1993) ("Deviation          _____________    _____          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,                            ___ _____________      ________          387 (1st  Cir. 1988).   Given this  benchmark, we think  that the          notice requirement for sua sponte summary judgment demands at the                                 ___ ______          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                                                                     ______          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,                                                 ____          needed to oppose a motion for summary judgment.                                        ____________________          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                                               ___  ______                                        ____________________               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                                              ___  ____   ______     ______          States, 849  F.2d 1576,  1582 (5th  Cir. 1988)  (holding improper          ______          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                                                                   ________          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.                    ______________________  ____________________                                        ____________________          judgment must be reversed.                                          8
