Opinion for the Court filed by Circuit Judge STARR.
Dissenting opinion filed by Circuit Judge BORK.
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
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.
The version of Celotex's moving papers on which summary judgment was granted was filed on December 23, 1981.
In opposing this motion, Mrs. Catrett relied primarily on three documents which, she claimed, "demonstrate that there is a genuine material factual dispute"
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, Celotex argues, may not be considered in opposition to a motion for summary judgment.
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:
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 "[w]here the evidentiary 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.
In this case 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.
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.
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.
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."
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. Catrett'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.
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.
BORK, Circuit Judge, dissenting.
The majority's decision in this case undermines the traditional authority of trial judges to grant summary judgment in meritless cases. Even though the plaintiff has no admissible evidence on an essential element of her case, the majority today allows her to survive a motion for summary judgment. This decision will probably lead to an unnecessary trial followed by a directed verdict for defendant Celotex. More generally, the precedent established today will waste trial court time and energy and unnecessarily add to the costs and procedural burdens faced by litigants.
The issue here is whether a trial judge may use summary judgment procedures to require a plaintiff, who has had ample time for discovery, to show that she has some admissible evidence to support an essential element of her case. The alternatives are that the defendant, which is the moving party, must prove a negative — that the plaintiff can never find evidence — or that the case go forward so that the plaintiff has still more time to cure her lack of evidence. The latter alternative apparently means that the plaintiff need never proffer evidence until she faces a motion for a directed verdict at trial. It seems to me better that summary judgment be awarded where, as here, the plaintiff has had two years for discovery and knew that she was expected to show her evidence in response
In my view, the majority opinion rests on a flawed premise: that a district judge can never grant summary judgment, even in an obviously meritless case, unless a party first makes a motion pursuant to Rule 56 and supports that motion with admissible evidence. The result in this case is that the plaintiff is granted an unsought extension of time to cure the defects in her proof. The premise being wrong, the result is gratuitous.
The majority errs in supposing that a party seeking summary judgment must always make an affirmative evidentiary showing, even in cases where there is not a triable, factual dispute. The cases the majority cites hold only that a moving party has the burden of showing the absence of a material, factual dispute, even on issues where his opponent would have the burden of proof at trial. Maj. op. at 5 nn. 10, 11. These cases do not consider the central question here: whether that showing must invariably be made with evidence.
It is important to keep in mind the distinction between a plaintiff's burden of proof on the merits and a defendant's burden of proof on summary judgment. The standards of proof by which each burden is satisfied are not necessarily the same. A plaintiff must prove his case by an affirmative, preponderance of the evidence. However, a defendant seeking summary judgment need only convince the trial judge that a reasonable jury could not find for the plaintiff, even if all disputed issues of fact and inferences were resolved in the plaintiff's favor. There is no requirement that the trial judge must always become convinced of this by a positive evidentiary showing. Several principles of summary judgment law demonstrate that while a positive evidentiary showing will usually be necessary, it is not always required.
First, it is hornbook law and the law of this circuit that a trial judge should grant summary judgment if the plaintiff has so little evidence on an essential element of his claim that it is clear that a directed verdict would have to be granted at trial. 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2713.1, at 616 (1983); United States v. General Motors Corp., 518 F.2d 420, 441-42 (D.C.Cir.1975); Dyer v. MacDougall, 201 F.2d 265 (2d Cir.1952) (L. Hand, J.). As Judge Leventhal has said, 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, 518 F.2d at 441-42. There is no point in sending a case to trial only to have the judge direct a verdict. In this case, a directed verdict would clearly be required since the plaintiff lacks any admissible evidence of causation, an essential element of her case.
In this respect, a motion for summary judgment is like a motion for a directed verdict. In neither is an evidentiary showing invariably required.
The analogy between summary judgment and directed verdicts has been emphasized by Wright & Miller.
10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727, at 130 (1983). Pursuant to these principles and to our decision in General Motors, 518 F.2d at 441-42, defendant Celotex is clearly entitled to summary judgment. Plaintiff's total lack of affirmative, admissible evidence of causation would result in a directed verdict at trial and should therefore warrant a grant of summary judgment now. The majority's refusal to uphold that grant represents a clear failure to follow General Motors
A second principle of law also shows that the majority has erred. Under some circumstances, trial judges may grant summary judgment sua sponte so long as the losing party was on notice that he had to come forward with all his evidence. 10A C. Wright, A. Miller & M. Kane, supra, § 2720, at 28. This rule clearly means that summary judgment does not require affirmative evidentiary proof of the absence of a factual dispute. Rather the trial judge need only notice this absence and demand that it be corrected. If it is not corrected after notice,
A third relevant legal principle is the substantial pretrial discretion trial judges enjoy to manage their caseloads. It is hard to see how that discretion is abused if a judge, at the defendant's request, asks a plaintiff to show that he has minimal evidence to support his case before he can go forward to trial. Indeed, district judges have broad pretrial authority to force the parties to narrow issues in order to reduce trial time by isolating the particular factual disputes that are to be tried. Fed.R.Civ.P.
Finally, Rule 56 itself imposes no obligation on parties seeking summary judgment always to introduce positive evidence proving the absence of a factual dispute. Although the framers of the rule probably thought such evidence would be necessary in most cases, see Advisory Committee Note to Rule 56, they imposed no ironclad requirement. Indeed, Rule 56 specifically allows for summary judgment on motion without a supporting affidavit. Fed.R.Civ.P. 56(b). This is appropriate in cases like the present one where even accepting the non-moving parties' factual allegations one must still enter judgment for the movant. See, e.g., Chambers v. United States, 357 F.2d 224, 227 (8th Cir.1966); Hubicki v. ACF Industries Inc., 484 F.2d 519, 522 (3d Cir.1973); Ramsey v. United States, 329 F.2d 432 (9th Cir.1964); Reynolds v. Needle, 132 F.2d 161, 162 (D.C.Cir.1942); Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627 (4th Cir.), aff'd, 388 F.2d 987 (1966). Here as in Chambers "no factual dispute exists and the complaint [absent evidence of causation] does not state a cause of action." 357 F.2d at 227.
Since this case lacks a triable, factual dispute, even if Celotex were to stipulate to the truthfulness of all of Mrs. Catrett's admissible evidence, Celotex would still prevail as a matter of law. The majority believes there is a triable, factual dispute in this case solely because Mrs. Catrett alleged causation in her complaint. Bare allegations in a complaint are not admissible at trial, however, and would not support a jury verdict for Mrs. Catrett.
Rather than properly focussing its inquiry on whether a triable, factual dispute exists in this case, the majority has become entangled in the interplay between the defendant's burden of proof on the summary judgment motion and the plaintiff's burden of persuasion in this lawsuit, which she retains at all times. The majority has required the defendant to prove in effect the negative of the plaintiff's case, even though the plaintiff has no evidence on an essential element of her claim. This temporarily switches the plaintiff's burden of persuasion in the lawsuit to the defendant which now must prove that it could not conceivably have caused the plaintiff's injury. The majority should have required the defendant only to persuade the trial judge that there is no triable, factual dispute on causation.
I agree with the majority that in most cases defendants will only be able to establish the absence of a factual dispute by producing positive evidence that undermines the plaintiff's factual showing. So long as the plaintiff has even one iota of weak inferential evidence, defendants will have the burden of affirmatively attacking that evidence to prove that there is no factual dispute suitable for trial. Adickes v. S.H. Kress & Co., 398 U.S. at 160, 90
The majority also objects to the grant of summary judgment in this case on the ground that plaintiff Catrett should be given an additional opportunity to produce admissible evidence on causation. I disagree. This case is just like one in which, after discovery, the judge holds a pre-trial conference, asks the plaintiff how he intends to prove each element of his case, and learns that the plaintiff has no admissible evidence of an indispensable element of that case. That case would be ripe for disposition by summary judgment. Here, Mrs. Catrett has had almost two years to prepare her case for trial. The motion for summary judgment put her on notice that Celotex claimed she had no evidence of causation. Mrs. Catrett was represented by counsel who were certainly aware that the district judge could consider only admissible evidence in determining the existence of a triable, factual dispute.
It would have been better if the majority reached the result it does by holding that plaintiff should have been given a new deadline to produce admissible evidence of causation. That would, for the reasons just given, be wrong, but at least it would not damage the utility of Rule 56. I understand the judicial impulse to save a plaintiff's case from what may have been careless preparation, but the deformation of summary judgment procedures is too high a price to pay for the gratification of that impulse.
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.
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 ¶ 56.15 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.