George Cacevic, an individual; Deda Cacevic, an individual; Checkers Bar & Grill, Inc., d/b/a Derby‘s Bar, a Michigan corporation, Plaintiffs-Appellants, v. City of Hazel Park, a Municipal corporation; Hazel Park Police Department; Albert Sadow, individually and in his official capacity as Chief of Police of the City of Hazel Park; John Doe Police Officers for the City of Hazel Park, individually and in their official capacities as Police Officers for the City of Hazel Park, Defendants-Appellees.
No. 99-1030
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: August 11, 2000; Decided and Filed: September 1, 2000
226 F.3d 483
Before: KEITH, COLE, and GILMAN, Circuit Judges.
Appeal from the United States District Court or the Eastern District of Michigan at Detroit. No. 98-71833--Victoria A. Roberts, District Judge.
Timothy Mulligan, Julie McCann O‘Connor, O‘CONNOR, DEGRAZIA & TAMM, Bloomfield Hills, Michigan, for Appellees.
OPINION
RONALD LEE GILMAN, Circuit Judge.
The owners of a bar brought suit under
After the district court granted summary judgment in favor of the defendants, the owners filed a motion for relief pursuant to
I. BACKGROUND
A. The Cacevics’ complaint and the taking of Chief Sadow‘s deposition
George and Deda Cacevic are the owners of Checkers Bar & Grill, Inc., doing business as Derby‘s Bar in Hazel Park, Michigan. On May 1, 1998, the Cacevics and Checkers (collectively, the Cacevics) brought suit under
On June 6, 1998, the district court issued a routine scheduling order, which provided that all discovery was to be completed by October 31, 1998. The Cacevics originally scheduled Chief Sadow‘s deposition for June 23, 1998, but were informed by defense counsel that he was out of state until late August of that year. They then rescheduled his deposition, first for September 10, 1998 and later for September 23, 1998. Both dates were subsequently cancelled by the Cacevics. Chief Sadow‘s deposition was finally taken in part on October 5, 1998 and completed on October 21, 1998.
B. Motion for summary judgment
In the meantime, the defendants moved for summary judgment on September 3, 1998, arguing that the bar checks to which the Cacevics objected were undertaken because Derby‘s Bar “ha[d] been the source of complaints of rowdy and malicious behavior,” and not “in retaliation for the exercise of any constitutional right.” On September 21, 1998, the Cacevics filed what they described as a “preliminary non-substantive response” to the defendants’ summary judgment motion. (In the United States District Court for the Eastern District of Michigan, “[a] response to a dispositive motion must be filed within 21 days after service of that motion.” E.D. Mich. L.R. 7.1(d)(1)(B).) The three-page filing, however, mainly consisted of various denials of the allegations and arguments made in the defendants’ brief. It also included the following statements:
[The Cacevics] further state that if given the opportunity to conduct discovery and factual development they will easily satisfy the requirements for a cause of action for a violation of the Michigan Constitution.
WHEREFORE, and for the reasons to be set forth in [the Cacevics]’ Brief in Opposition to Motion for Summary Judgment to be filed at a future date, [the Cacevics] respectfully request that this Honorable Court deny Defendants [sic] Motion for Summary Judgment and award [the Cacevics] their attorneys fees so wrongfully sustained in defense of this Motion.
The district court declined the Cacevics’ request for an immediate denial of the defendants’ summary judgment motion and denied an award of attorneys’ fees. Instead, it extended the deadline for filing a responsive brief to October 18, 1998 and rescheduled the motion hearing for November 16, 1998. The Cacevics, however, did not meet the October 18, 1998 deadline. Having received no response from the Cacevics even two weeks later, the district court cancelled the impending hearing on November 3, 1998 and granted the defendants’ motion the following day.
In its November 4, 1998 memorandum opinion, the district court first noted that the Cacevics “have not responded to Defendants’ Motion, despite this Court‘s Order extending their response time to October 18, 1998.” Then, citing Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991) (explaining that when a non-movant fails to respond to a motion for summary judgment, the district court must still “examine the movant‘s motion . . . to ensure that he has discharged [his] burden“), it proceeded to evaluate the merits of the Cacevics’ claims and the defendants’ arguments in response.
First, the district court rejected the Cacevics’ First Amendment claim, reasoning that they “have not produced evidence of any connection--much less retaliation--between the exercise of their allegedly protected First Amendment speech and Defendants’ actions.” Second, it ruled that the Cacevics’ Fourth Amendment cause of action was without merit because “Derby‘s Bar is a commercial property held open to the public, with little expectation of privacy,” and because the Cacevics “failed to produce evidence of any actual searches or seizures, instead relying on their claim of ‘unjustified presence.‘” Third, the district court rejected both the Cacevics’ procedural and substantive due process claims under the Fourteenth Amendment, holding that they could not demonstrate a protected property interest, could not show a deprivation of any liberty interest, and that their claims could not fit within either of the two types of substantive due process claims available under Sixth Circuit precedent. Fourth, it ruled that their Fourteenth Amendment equal protection cause of action fails, in part because they “have not shown that they belong to any class receiving heightened protection, nor can they demonstrate a violation of a fundamental right.” Finally, the district court concluded that, for the reasons set forth in discussing the Cacevics’ federal claims, their Michigan Constitution causes of action were likewise without merit.
C. Motion for relief
On November 20, 1998, the Cacevics submitted a motion for relief pursuant to
In the defendants’ response to the motion for relief, they argued that the Cacevics “simply failed to submit a substantive response to Defendants’ motion, and the Court considered the motion, as it is entitled to do, on the merits without a hearing, after having waited numerous weeks for [the Cacevics] to file a response.” Although the defendants acknowledged that they verbally agreed to an extension beyond October 18, 1998, their response noted that the Cacevics never formalized the requested extension with either the district court or defense counsel:
Counsel for Defendants stipulated to an extension of time for [the Cacevics] to file a response to Defendants’ motion, but [the Cacevics’ counsel] never made any effort to bring a motion for an extension of time to file his response, and did not make a written request to Defendants’ counsel for such an extension.
On December 18, 1998, the district court denied the Rule 60(b)(1) motion, concluding that the Cacevics’ failure to file a response within the extended time “was not the result of ‘mistake, inadvertence, surprise, or excusable neglect.‘”
The Cacevics have timely appealed. They argue that the district court erred by denying them relief pursuant to
A. The district court did not err when it denied the Cacevics’ motion for relief
The Cacevics first argue that the district court erred by not granting their motion for relief pursuant to
1. Rule 56(f)--“When affidavits are unavailable”
A decision on this issue requires us to first consider
Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
The Fourth Circuit has commented as follows on the importance of complying with
We, like other reviewing courts, place great weight on the Rule 56(f) affidavit, believing that “[a] party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirement of Rule 56(f) to set out reasons for the need for discovery in an affidavit.” The Second Circuit Court of Appeals has similarly explained that “[a] reference to Rule 56(f) and to the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for a Rule 56(f) affidavit . . . and the failure to file an affidavit under Rule 56(f) is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.”
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996) (citations omitted) (alterations in original); see also Radich v. Goode, 886 F.2d 1391, 1394 (3d Cir. 1989) (“Rule 56(f) clearly requires that an affidavit be filed.“).
The importance of complying with
Some courts have suggested that the request for relief under
Nor did their September 21, 1998 response meet the substantive requirements of
Although the district court was not required to do so, it postponed the Cacevics’ response deadline until October 18, 1998. Nevertheless, even with this extension, the Cacevics failed to complete the deposition of Chief Sadow until October 21, 1998. With the new deadline looming, the Cacevics, as stated in their motion for relief, sought and received permission from the defendants to file after October 18, 1998, but were unsuccessful in their efforts to reach the Deputy Clerk for the purpose of obtaining more time. The proper method for requesting such an extension, however, is, as discussed above, a
2. Rule 60(b)(1)--“Relief from judgment or order” for “mistake, inadvertence, surprise, or excusable neglect”
Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999); see also Bank of California, N.A. v. Arthur Andersen & Co., 709 F.2d 1174, 1177 (7th Cir. 1983) (“Rule 60(b)(1) is intended to allow clear errors to be corrected without the cost and delay of an appeal.“).
The denial of a Rule 60(b) motion is reviewed under the abuse of discretion standard. See United States v. Universal Management Servs., Inc., 191 F.3d 750, 757 (6th Cir. 1999), cert. denied, 120 S. Ct. 2740 (2000). We will find an abuse of discretion only when there is “a definite and firm conviction that the trial court committed a clear error of judgment.” Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). Although the Cacevics also challenge the district court‘s grant of summary judgment in favor of the defendants, a review of the merits of that decision is not to be considered for the purposes of evaluating the propriety of the Rule 60(b) denial. As was well-stated in Feathers v. Chevron U.S.A., Inc., 141 F.3d 264 (6th Cir. 1998):
In reviewing an order denying Rule 60(b) relief, we have no occasion to review the underlying judgment--here, the dismissal of Feathers‘s complaint. Instead, we merely inquire as to whether one of the specified circumstances exists in which Feathers is entitled to reopen the merits of his underlying claims.
Id. at 268 (citation omitted).
Having concluded that the Cacevics failed to comply with
This court‘s decision in Kendall v. Hoover Co., 751 F.2d 171 (6th Cir. 1984), a case cited by neither party, addresses a similar fact situation. In Kendall, the plaintiff initiated a civil rights suit against his employer. The plaintiff failed to submit a response to the employer‘s motion for summary judgment, and the district court granted the motion. See id. at 173. He argued on appeal, among other things, that the district court should have granted his Rule 60(b) motion based in part on “reasonable assumptions that should have been made by opposing counsel and the trial court with respect to plaintiff‘s need for additional time to gather economic data with which to respond to the summary judgment motion.” Id. at 175.
In rejecting the plaintiff‘s argument, the Kendall court first noted that “if indeed there was a need for additional time to compile certain economic data, a procedure for securing the appropriate relief existed under Federal Rule of Civil Procedure 56(f),” and then observed that Kendall “did not even attempt to utilize Rule 56(f).” Id. It then agreed with the following conclusion of the district court: “The court is not persuaded that there has been any excusable neglect[] or mistake demonstrated. The failure to respond to a motion for summary judgment or to request an extension of time to file a response thereto is inexcusable neglect.” Id. (emphasis added) (citing cases from other circuits). Furthermore, the neglect of the procedural rules and need to inform the court of any requested extensions is not made excusable simply because of an informal agreement between the parties. The Cacevics knew that the district court was a key player (if not the key player) in the summary judgment process, yet they kept the court completely “in the dark” until well past the filing deadline. We thus find Kendall controlling, and conclude that the district court did not abuse its discretion when it denied the Cacevics’ motion for relief.
On a final note, the Cacevics acknowledge that, at a minimum, they “should have formally notified the District Court of their intent to respond to Defendants’ Motion within 10 days of receiving the transcript of the second half of Chief . . . Sadow‘s bifurcated deposition.” This concession notwithstanding, “Rule 60 was not intended to relieve counsel of the consequences of decisions deliberately made, although subsequent events reveal that such decisions were unwise.” Federal‘s Inc. v. Edmonton Inv. Co., 555 F.2d 577, 583 (6th Cir. 1977); see also Gucci Am., Inc., v. Gold Ctr. Jewelry, 158 F.3d 631, 635 (2d Cir. 1998) (noting that a finding of bad faith is not a prerequisite to a conclusion that a party‘s neglect was inexcusable), cert. denied, 525 U.S. 1106 (1999).
B. The district court did not err when it granted summary judgment in favor of the defendants
We review de novo the district court‘s grant of summary judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See
After carefully reviewing the record, the briefs of both parties, and the applicable law, we believe that the defendants met their burden, so that the district court‘s grant of summary judgment to the defendants was proper. See id. at 407, 410 (noting that although a district court must satisfy itself that the moving party has met the demands of
III. CONCLUSION
The decision in this case clearly turns on the outcome of the Rule 60(b) issue. Although it may seem harsh to turn a blind eye to the Cacevics’ belated proffer of evidence, that is the price to be paid by litigants who do not comply with the rules and who are not sensitive to the fact that district courts “reasonably expect notification when more time for discovery is needed.” Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996); see also Lowndes v. Global Marine Drilling Co., 909 F.2d 818, 820 (5th Cir. 1990) (“While it is true that Rule 60(b) motions must be applied in a manner to achieve substantial justice, if we were to adopt the position avowed by the appellant[,] cutoff dates established by the district court in the orderly administration of the matters before it would become meaningless. Rule 60(b) motions would have to be granted without any showing of excusable neglect.“). For all of the reasons stated above, we AFFIRM the judgment of the district court.