Michael R. Ray v. Equifax Information Svcs

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 5, 2007
No. 06-11644 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00482-CV-JOF-1
MICHAEL R. RAY,
Plaintiff-Appellant,
versus
EQUIFAX INFORMATION SERVICES, LLC,
MBNA AMERICA BANK, N.A.,
Defendants-Appellees,
ON-LINE INFORMATION SERVICES, INC., et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 5, 2007)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Michael R. Ray (“Ray”), proceeding pro se, appeals the district court’s order
granting summary judgment in favor of the defendants, Equifax Information
Services, LLC (“Equifax”), and MBNA America Bank, N.A. (“MBNA”). Ray
filed suit against Equifax, MBNA and other defendants alleging violations of the
Fair Credit Reporting Act, 15 U.S.C. §§ 1681–1681x; violations of the South
Carolina Unfair Trade Practices Act, S.C. Code Ann. §§ 39-5-10 to -170;
negligence; and breach of fiduciary and other duties. In granting summary
judgment, the district court essentially found that Ray had failed to support any of
his claims. Ray raises numerous arguments on appeal,1 but we need address only
his first argument because it is dispositive. Ray argues, and we agree, that we
should vacate the district court’s order because he was not provided with the notice
required by Federal Rule of Civil Procedure 56(c).
I.
Rule 56(c) requires that the district court provide “10-day advance notice to
1
Ray argues that the district court erred by, among other things: (1) denying his motion
to amend his complaint; (2) not requiring the defendants to make Federal Rule of Civil
Procedure 26 initial disclosures or hold a Rule 26 conference; (3) ending discovery prematurely
and refusing to reopen it; and (4) granting summary judgment. We note that Ray has failed to
challenge on appeal a number of rulings by the district court not related to the two summary
judgment motions at issue. However, we decline to address what effect, if any, this would have
in the event this matter is submitted for our review again.
2
the adverse party that [a motion for summary judgment] and all materials in
support of or in opposition to the motion will be taken under advisement by the
trial court.” Moore v. State of Florida, 703 F.2d 516, 519 (11th Cir. 1983) (per
curiam). At a minimum, the district court must advise the pro se non-movant “of
his right to file affidavits or other material in opposition to the motion, and of the
consequences of default.” Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.
1985) (per curiam). “We have held repeatedly that this requirement of notice will
be deemed strictissimi juris and applies to all parties litigant.” Id. This is
especially true in the context of pro se prisoners. Id.We have applied a limited harmless error analysis to this rule. See Coleman
v. Smith, 828 F.2d 714, 716-17 (11th Cir. 1987) (per curiam) (holding the error
harmless where partial notice was provided); Denis v. Liberty Mut. Ins. Co., 791
F.2d 846, 850 (11th Cir. 1986) (holding in a counseled, civil context, that error was
harmless because “the parties made all the arguments and submitted all the
documents that they would have” absent the error). The harmless error analysis
does not apply to the facts of this case.
After carefully reviewing the parties’ briefs and the record here, we find that
the district court committed reversible error. The record indicates that the district
court’s standard Rule 56(c) notice form, which was referenced in the docket entries
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of the motions for summary judgment and available on the court’s website, was
never sent to Ray by one of the parties or by the court. Further, neither party has
contested Ray’s assertion that he had no internet access in prison in order to check
the court’s website.
We note that the district court provided some information regarding
summary judgment in its revised case instructions, and warned Ray that failing to
respond to the motions for summary judgment could result in dismissal.
Nevertheless, neither the court nor the movants explained Rule 56 to Ray by
providing the notice or otherwise, even after he twice indicated that he had not
received the notice.
Finally, although Ray did respond to the motions for summary judgment,
and although he was able to cite Rule 56 caselaw, it is not clear that he understood
the workings of the rule, or the proper way to respond. Indeed, he specifically
alleges that he did not understand that he needed to attach evidence to his filing.
Thus, it is at least not clear that he has “submitted all the documents that [he]
would have presented had [he] received the notice.” Id.Accordingly, as we enforce the Rule 56(c) notice requirement strictissimi
juris, we hereby vacate the district court’s entry of summary judgment and remand
this case for further proceedings.
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VACATED AND REMANDED.
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