Myrtle Nell Catrett, Administratrix of the Estate of Louis H. Catrett, Deceased v. Johns-Manville Sales Corporation , 756 F.2d 181 ( 1985 )

STARR, Circuit Judge.

Appellant Myrtle Nell Catrett filed this wrongful death action in United States District Court in September 1980. Her complaint, sounding in negligence, breach of warranty,' and strict liability, alleged that the death in 1979 of her husband, Louis H. Catrett, resulted from his exposure to products containing asbestos manufactured or distributed by fifteen named corporations. During the proceedings below, two manufacturer-defendants filed motions challenging the District Court’s in personam jurisdiction; the other thirteen corporate defendants filed motions for summary judgment. The District Court granted the various motions as to all defendants. Mrs. Catrett now appeals only from the District Court’s grant of summary judgment to Cel-otex Corporation.¹

After reviewing the record in this case, we are constrained to conclude that the District Court erred in granting summary judgment in favor of Celotex. Accordingly, we reverse and remand for further proceedings.

I

The version of Celotex’s moving papers on which summary judgment was granted was filed on December 23, 1981.² Celotex argued that summary judgment was proper because Mrs. Catrett had “failed to produce evidence that any [Celotex] product ... was the proximate cause of the injuries alleged within the jurisdictional limits of [the District] Court.”³ Celotex further contended that “[t]here is no evidence whatsoever that the defendant was ever exposed to any [Celotex] product containing asbestos ... or that any such product was in any way the proximate cause of the decedent’s death within the jurisdictional limits of [the District] Court.” Statement of Material Facts as to Which There Is No Genuine Issue, reprinted in S.R.E. at 3sa-4sa.

In opposing this motion, Mrs. Catrett relied primarily on three documents which, she claimed, “demonstrate that there is a genuine material factual dispute”⁴ as to whether Mr. Catrett had ever been exposed to Celotex asbestos products.⁵ The documents were a copy of the transcript of her husband’s July 17, 1979, deposition taken for use in proceedings in his earlier workman’s compensation claim and two letters: one from William O’Keefe, of Aetna Life & Casualty, to Mrs. Catrett’s attorney and one from the Assistant Secretary of a Chicago enterprise, Anning & Johnson Co., to Aetna, both stating that Mr. Catrett had used a Celotex product during his employment with Anning & Johnson in Chicago in 1970-71. Mrs. Catrett argued unsuccessfully to the District Court that these three documents “evinced the essential link between [Celotex’s] product and [Mr. Ca-trett], and it would be a question for the jury as to whether this was the proximate cause of the decedent’s injuries and ultimate death.”⁶

Celotex strenuously argues on appeal that plaintiff’s evidence is infirm in that the three documents are hearsay and are inadmissible under any exception to the hearsay rule. Such inadmissible evidence, Celo-tex argues, may not be considered in opposition to a motion for summary judgment.

We need not, however, reach the evidentiary issue,⁷ inasmuch as defendant’s moving papers were patently defective on their face, rendering inappropriate the grant of summary judgment on the record as it stood before the District Court. Celotex offered no affidavits, declarations or evidence of any sort whatever in support of its summary judgment motion. To the contrary, Celotex’s motion was based solely on the plaintiff’s purported failure to produce credible evidence to support her claim.⁸ While Celotex may have faced difficulty, to be sure, in “proving the negative”⁹ that plaintiff’s decedent had not been exposed to its products, appellee made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion. As we will now see, that undisputed failure renders its motion fatally defective.

II

Rule 56(e) of the Federal Rules of Civil Procedure, as amended in 1963, could not be clearer that summary judgment under the circumstances before us will not lie. It provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Fed.R.Civ.P. 56(e) (emphasis added). This rule unequivocally places a burden of coming forward with specific facts upon the party opposing a motion for summary judgment only when the proponent’s motion is “made and supported as provided in th[e] rule.” The Advisory Committee Note to Rule 56 explains that “[wjhere the evi-dentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.” Advisory Committee Note on 1963 Amendment to Fed.R.Civ.P. 56(e) (emphasis added). As the Supreme Court has clearly stated in this respect, “[b]oth the commentary on and the background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party ... to show initially the absence of a genuine issue concerning any material fact.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). It is firmly established that the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact.¹⁰

At trial, of course, Mrs. Catrett would have the burden of proving by admissible evidence that her husband’s exposure to Celotex’s products had proximately caused his death. If Mrs. Catrett failed to satisfy her burden, then her case would be vulnerable to a motion for directed verdict. However, as this court has repeatedly held, the party moving for summary judgment carries the burden of proving the absence of a material issue of fact “even on issues where the other party would have the burden of proof at trial.”¹¹

In this ease Celotex proffered nothing. It advanced only the naked allegation that the plaintiff had not come forward in discovery with evidence to support her allegations of the decedent’s exposure to the defendant’s product.¹² Under settled rules, that barebones approach will not do. Mrs. Catrett was simply not required, given this state of the record, to offer any evidence in response.¹³

Ill

Despite the clear state of the law relevant to the facts of this case, the dissent insists that the grant of summary judgment was proper. That position is based on both a misconception of the factual setting in ■ which summary judgment was granted here and, more generally, on an overly broad reading of a legal proposition.

The dissent insists throughout that the plaintiff lacks any evidence as to causation and that, even accepting the plaintiff’s factual allegations, judgment would have to be entered for the movant. Summary judgment was entered, the dissent emphasizes, because the trial judge found no showing of the plaintiff’s decedent’s exposure to Celotex in the District of Columbia or elsewhere.¹⁴ Yet, the plaintiff had of-féred evidence on that very point. True, the evidence was not in admissible form, but at least some of the evidentiary infirmity was plainly curable. The point is that the plaintiff did have evidence, and if her allegations were accepted by the jury as true, the plaintiff, rather than the defendant, would have been entitled to judgment.

We fully recognize the unique vantage point of the District Courts to evaluate evidence and the reasonable discretion that District Judges rightly enjoy in granting summary judgment. We have no desire to cabin unduly that sound discretion, and our opinion should not have that effect. Here, the bedrock fact is that the summary judgment motion was totally unsupported.¹⁵ The -issue on which we rule is therefore purely legal in nature, and our conclusion breaks no new ground whatever. The clear dictate of Rule 56¹⁶ and a long, unbroken line of precedent¹⁷ is that summary judgment is not proper absent a properly supported motion. This case is as simple as that.

The dissent, however, accuses us of failing to follow the law of this circuit, as expressed in United States v. General Motors, supra, and hornbook law that summary judgment and directed verdict are functionally equivalent. The charge is groundless. To be sure, General Motors states that a party seeking summary judgment “is entitled to the benefit of any relevant presumptions, and if the established facts and relevant presumptions would have entitled him to a directed verdict at trial, he is entitled to a summary judgment under Rule 56.” General Motors, supra, 518 F.2d at 441-42. However, in General Motors, the movant had established certain facts, namely a significant number of failures in performance not attributable to wear or age of the automobile parts in question, and was given the benefit of the presumption that the failures occurred under specified use or reasonably anticipated abuse. The equivalency of summary judgment and directed verdict was clearly premised in that case on the existence of this clear and sufficient support for the summary judgment motion.

This equivalency breaks down only when an unsupported summary judgment motion is made by the party not having the burden of proof at trial. If this case had gone to trial and Mrs. Catrett had offered no admissible evidence in presenting her case, Celotex would plainly have been entitled to a directed verdict even without offering any evidence of its own. In that event, the plaintiff would already have enjoyed the opportunity to present her evidence, and the defendant could appropriately ground a motion simply on her failure to prove her case. Before trial, however, rather than arguing that the plaintiff has not proven her case, the movant for summary judgment argues that the plaintiff cannot prove her case. While Mrs. Catrett has not offered admissible evidence, the movant, and the court, are entitled to conclude that she cannot offer admissible evidence if but only if the movant has supported its motion in accordance with Rule .56. Again, the pivotal difference between this case and General Motors is that in the latter case the motion for summary judgment was supported. To argue that the equivalence between summary judgment and directed verdict in such a situation applies to this case as well is to ignore the statement in General Motors that “[t]he party seeking summary judgment has the burden of showing there is no genuine issue of material fact ... even if the opponent presents no conflicting evidentiary matter.” ¹⁸

The dissent also argues that, since the court may under some circumstances grant summary judgment sua sponte, no requirement exists that the lack of a factual dispute be affirmatively demonstrated by the moving party. Support for this proposition is found in 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 at 28. However, this salutary principle applies to the propriety of a grant of summary judgment when there was no motion for summary judgment before the court, not when there was no support for a summary judgment motion.¹⁹

Lastly, we respectfully take exception to the dissent’s suggestion that we are creating a requirement that a plaintiff, having failed to support his or her case, should be allowed more time to produce admissible evidence. We are doing nothing of the sort. Had Celotex properly supported its summary judgment motion, we would agree that the inadmissibility of Mrs. Ca-trett’s evidence would be fatal to her opposition to the motion. However, we refuse to hold the plaintiff — and the case law is abundantly clear that she should not be so held, see supra note 10 — to a higher standard than the movant. Until Celotex properly supported its motion, Mrs. Catrett was not required to offer any evidence at all. We do not hold that she should have more time but simply that her time had not yet come.

IV

The District Court’s grant of summary judgment in favor of Celotex Corporation is therefore reversed and the case remanded to the District Court for further proceedings.

It is so ordered.

1 . Mrs. Catrett declined to challenge the dismissal of twelve of the other fourteen parties dismissed as defendants and, prior to oral argument in this court, discontinued her appeal from the dismissal of two parties, Armstrong World Industries and Turner & Newall, Ltd., pursuant to settlement agreements.

2 . Motion of Defendant Celotex Corp. for Summary Judgment (Motion for Summary Judgment), reprinted in Appellee’s Supplemental Record Excerpts (S.R.E.) at Isa. Celotex had filed, on September 28, 1981, an earlier motion for summary judgment, which it withdrew on November 9, 1981. See Docket Entries at 3-4, reprinted in Record Excerpts (R.E.) at 7a-8a.

3 . Motion for Summary Judgment at 1, reprinted in S.R.E. at Isa. While such an argument might be read as a basis for dismissal for lack of personal jurisdiction or for a change of venue, the motion was for summary judgment under Fed.R.Civ.P. 56(b). The District Court’s grant of summary judgment must therefore have been based on its conclusion that there was “no showing that the plaintiff was exposed to defendant Celotex’s product in the District of Columbia or elsewhere within the statutory period.” Transcript of July 21, 1982 Proceedings at 9, reprinted in R.E. at 595a (emphasis added). The District Court’s ruling was from the bench at the July 21, 1982 proceeding. No written opinion accompanied the ruling.

4 . Plaintiffs Memorandum of Points and Authorities in Opposition to Motion of Defendant Celo-tex Corporation for Summary Judgment (Plaintiff’s Memorandum), reprinted in R.E. at 361a, 362a.

5 . For ease of reference, we use the term "Celo-tex products” to refer to those products manufactured by Celotex's predecessors in interest and to which Mr. Catrett was allegedly exposed.

6 . Plaintiffs Memorandum, reprinted in R.E. at 361a, 362a.

7 . Under our treatment of the case, we need not rule on the admissibility of the documents in question.

8 . Celotex also complained that Mrs. Catrett failed to answer interrogatories and produce documents sought in discovery. Statement of Material Facts as to Which There Is No Genuine Issue, reprinted in S.R.E. at 3sa-4sa. However, Celotex did not seek sanctions, under Fed.R. Civ.P. 37, for failure to comply with discovery requests but instead sought summary judgment under Fed.R.Civ.P. 56(b). See Motion for Summary Judgment, reprinted in S.R.E. at Isa.

9 . We are not faced with, and thus do not address, the situation where a manufacturer, sued by a remote user of its product, seeks to comply with Rule 56 but simply cannot "prove the negative" of non-use or non-exposure without reference to evidence in the hands of the plaintiff. Here, no effort whatever was made by Celotex to comply with the requirements of Rule 56, as we shall see in the text that follows.

10 . See, e.g., Adickes v. S.H. Kress & Co., supra, 398 U.S. at 160, 90 S.Ct. at 1609; First National Bank v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968); Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 172 (D.C.Cir.1981) (“it is beyond cavil that a party opposing summary judgment is required to proffer rebuttal affidavits or other evidence ‘only if its omission enables the movant to satisfy his burden of showing that no issue of material fact persists”1); Weisberg v. United States Department of Justice, 627 F.2d 365, 368 (D.C. Cir.1980) (“It is equally settled in federal procedural law that '[t]he party seeking summary judgment has the burden of showing there is no genuine issue of material fact, even on issues where the other party would have the burden at trial, and even if the opponent presents no conflicting evidentiary matter.’ ”); Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 836 (D.C.Cir.1979) (same); National Association of Government Employees v. Campbell, 593 F.2d 1023, 1027 (D.C.Cir.1978) (“Facts not conclusively demonstrated, but essential to the movant’s claim, are not established merely by his opponent’s silence; rather, the movant must shoulder the burden of showing affirmatively the absence of any meaningful factual issue.”); United States v. General Motors Corp., 518 F.2d 420, 441 (D.C.Cir.1975) ("The party seeking summary judgment has the burden of showing there is no genuine issue of material fact ... even if the opponent presents no conflicting evidentiary matter.”) (footnotes omitted); Bloomgarden v. Coyer, 479 F.2d 201, 206-07 (D.C.Cir.1973) ("The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue as to any material fact, and even if his opponent comes forward with nothing, summary judgment must be denied if the facts supporting the motion do not establish the nonexistence of such an issue.”); see also Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1222 (7th Cir.1984) (defendant asbestos manufacturer did not meet its "burden of showing that no genuine issue of material fact exists in regard to plaintiff’s alleged exposure ...; therefore plaintiff should not be penalized for failure to attach an affidavit to his response”).

11 . United States v. General Motors Corp., supra, 518 F.2d at 441; see also Weisberg v. United States Department of Justice, supra, 627 F.2d at 368 (quoting Founding Church of Scientology v. National Security Agency, supra, 610 F.2d at 836); Founding Church of Scientology v. National Security Agency, supra, 610 F.2d at 836 (quoting United States v. General Motors Corp., supra, 518 F.2d at 441).

12 . That is not to say that Celotex was required to come forward with some specific form of submission. Indeed, Rule 56 is clear that there is no absolute requirement that the moving party furnish affidavits in support of its motion. But here, Celotex did not simply fail to submit affidavits or declarations in support of its motion; it came forward literally with nothing save for pointing to perceived shortfalls in the plaintiffs case.

It is in no wise unfair to Celotex to require it to support its case under Rule 56, even under the circumstances here. As we noted before, if a party has failed to comply with discovery requests, such as interrogatories and requests for production of documents, the Federal Rules provide an elaborately drawn system of sanctions for failures to comply, including the ultimate sanction of dismissal of one's case. Thus, our ruling in no manner leaves a party such as Celotex remediless in the face of unsuccessful efforts to effect discovery of the opposing side’s case.

13 . Since Celotex offered no evidence, we need not and do not speculate as to what showing would have been adequate to meet Celotex’s burden.

14 . See supra note 3 and accompanying text. We again note that the discussion at the time the motion was granted actually spoke to venue. It was only the phrase "or elsewhere,” appearing with no prior discussion, in the judge’s oral ruling at the close of argument that made the grant of summary judgment even conceivably proper.

15 . The dissent correctly notes that Rule 56 has no ironclad rule that a motion for summary judgment be supported in any particular manner. The motion does, however, require some support, and here support was totally lacking.

16 . See supra at 184.

17 . See supra note 10.

18 . General Motors, supra, 518 F.2d at 441 (footnotes omitted). The dissent's cite to Wright, Miller & Kane provides no better support for its position. The treatise does note the similarity in the theories underlying summary judgment and directed verdict but also notes the movant's burden to demonstrate that his opponent could not support a judgment in his favor at trial. See 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 at 130 (1983). Professor Moore’s treatise also supports the position that the summary judgment directed verdict equivalency breaks down in the case at hand. While agreeing that the two procedures are akin, Moore’s observes that their operations differ when the movant would not bear the burden at trial. 6 Moore’s Federal Practice j[ 56.15[3] at 479-80 (1983). Furthermore, Moore's notes that the movant’s papers “may in themselves be insufficient to discharge his burden; and in that event the opposing party need proffer no materials in oposition.” Id. at 488 (footnote omitted). Such would not, of course, be the case with a directed verdict.

19 . Furthermore, the party against whom the judgment is to be entered must have sufficient advance notice. 10A Wright, Miller & Kane, supra, § 2720 at 34. The last minute objection to the evidence proffered by plaintiff, see Transcript of July 21, 1982, Proceedings 3-4, reprinted in R.E. 587a, 589a-90a, and the apparent reliance by the District Judge on what were actually venue concerns, see supra note 3, speak powerfully against that notice here.