Edwards v. N.E.Telephone ( 1996 )

USCA1 Opinion

          May 21, 1996



                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 95-2134



                                  A.G. EDWARDS, JR.,



                                Plaintiff, Appellant,



                                          v.



                     NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

                                AND NYNEX CORPORATION,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Nancy J. Gertner, U.S. District Judge]
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                                        Before



                                 Cyr, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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            A.G. Edwards, Jr. on brief pro se.
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            Julie J. Bernard on brief for appellees.
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                      Per Curiam.   Plaintiff A.G.  Edwards, Jr.  appeals
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            from  the district court's grant of summary judgment in favor



            of  defendants New  England Telephone  and Telegraph  Co. and



            NYNEX Corp.  We affirm the judgment of the district court for



            the reasons  stated in  the court's Memorandum  and Decision.



            We add only the following comments:



                      1.   It is plain  that the district court liberally



            construed plaintiff's pleadings as  required by cases such as



            Haines  v. Kerner, 404 U.S. 519 (1972).  Indeed, for purposes
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            of  its analysis on the merits, it gave plaintiff the benefit



            of  the  doubt  and  accepted  as  true  his  assertion  that



            defendants  owned  the telephones  in  question.   The  court



            nonetheless  determined  that,  aside  from  speculation  and



            conjecture, plaintiff  had provided no facts  tending to show
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            that  the telephones  were defectively  designed or  that the



            sounds  the  telephones  emitted  caused  his  hearing  loss.



            Despite his pro se status,  plaintiff still was obligated  to



            comply with what the substantive law required.  See Eagle Eye
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            Fishing Corp. v.  United States  Dep't of  Commerce, 20  F.3d
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            503,  506  (1st  Cir.  1994) ("[t]he  Constitution  does  not



            require judges . . . to take up the slack when a party elects



            to represent himself").



                      2.   We also see nothing amiss with the process the



            district court  employed in deciding  defendants' motion  for



            summary  judgment.  While the record must be construed in the







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            non-movant's  favor,  that party  still must  submit specific
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            facts  sufficient to  show a  real  dispute.   Griggs-Ryan v.
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            Smith,  904 F.2d  112, 115  (1st Cir.  1990).   "[C]onclusory
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            responses unsupported by evidence  . . . will [not]  serve to



            defeat a  properly focused  Rule 56  motion."   Id. (citation
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            omitted)  (non-movant may  not  simply rest  upon his  or her



            pleadings).   As  the  district court  found, plaintiff  only



            offered his conclusions without specifying  any corroborative



            facts.   Based on  this state of  affairs, a  hearing was not



            mandated.  Cf.  Posadas de  Puerto Rico, Inc.  v. Radin,  856
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            F.2d 399,  400-01  (1st  Cir.  1988)  (where  the  facts  are



            undisputed, a hearing is not  necessary).  As for plaintiff's



            request for more time to substantiate his claims, he does not



            indicate  exactly  what  facts  additional   discovery  would



            reveal.    Thus,  the  district  court  did  not   abuse  its



            discretion when it implicitly denied this entreaty.  See Bank
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            One Texas, N.A.  v. A. J. Warehouse,  Inc., 968 F.2d 94,  100
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            (1st Cir.  1992) (a district court may grant summary judgment



            despite an  opposing party's  assertion that discovery  would



            lead  to more facts where the opposing party does not specify



            the facts that discovery would reveal).



                      3.   The district court refused to  enter a default



            judgment  against defendants or  summarily deny  their motion



            for  summary judgment  for failing  to confer  with plaintiff



            prior to filing their motion for summary judgment.  See L.R.,
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            D.Mass. 7.1(A)(2).  The parties had attended a non-productive



            settlement conference about a year and a half after plaintiff



            began  the  action.   The  defendants  filed the  motion  for



            summary  judgment  just   six  weeks  after   the  settlement



            conference.   Because plaintiff  was not  likely to  change a



            position he had held  for over a year in the  six-week period



            after  the abortive  conference, the  district court  did not



            abuse its  discretion in  not imposing such  severe sanctions



            against defendants.  See Gerakaris v. Champagne, 913 F. Supp.
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            646,  651  (D. Mass.  1996)  (neglecting to  confer  prior to



            filing  a motion to dismiss, which was certain to be opposed,



            does not warrant the summary denial of the motion).



                      Affirmed.
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