Sinclair v. Mobile 360, Inc. , 417 F. App'x 235 ( 2011 )

UNPUBLISHED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Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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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
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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
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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.
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