*2 MOORE, TIMBERS, Before OAKES and Judges. Circuit OAKES, Judge: Circuit appeal is sponte grant This from sua of summary judgment against appellant by the District United States Court for the District York, of New Southern Whitman Judge. grant Knapp, immediately fol- appellant’s attempt, lowed unsuccessful at a hearing, to obtain preliminary injunction. swiftly justice did the of So door revolve in this instance suit in filed Friday (June court on a 18,1976), state removed to federal court on following the Thursday (June 24), and found itself out on street, with summary the judgment granted opponent motion,1 on the court’s own very (June next Monday the 28). We re- judgment. verse is a Appellant New York partnership of public certified accountants. Its state court alleged complaint action, four causes of factually premised claim appel- lee, tape manufacturer, a California music permit appellant appel- refused access to lee’s books records for audits on behalf commences, during having hearing, according “A transcript, motion summary judg- made appellant’s been after until the court said counsel: dismissing complaint just your opponent ment . but . . “I heard make a motion for appellee summary no judgment, there is indication grant- made such a and that motion is Appellee’s speak motion. counsel at all ed.” “explore” menced to the issue ap- clients. Each of the whether appellant’s three “a cause pellant had song publisher who either action all.” Be- was a clients fore counsel was able to address appellee to manufacturer contracted question, judge himself to ventured magnetic tapes prerecorded distribute the view that affidavit supporting the recordings, rights to which master *3 a request preliminary injunction for indi- publisher, ap- or issued by owned the were appellee denying cated that was appellant it entitling tapes, to sell such licenses pellee protect access “to itself from [appellant’s] publisher entitled the to each contract and expertise,” because appellant had found appellee’s of independent an audit conduct in “derelictions” other audits. The judge purposes verifying for of and records books that, say true, went to if this on were payments thereunder. One of the royalty no appellant had cause of action because appellant as the auditing named contracts appellee serving its own self-interest. firm, requested two clients and the other Despite arguments by appellant’s counsel to contractually their make au- to appellant that the the effect complaint stated a cause however, Appellee, audits. noti- thorized for interference of action with advanta- clients, appellant, as each of the as well fied relations, the geous business court was of to permit appellant not do so. it would that that, because appellant the view an made first three “causes of action” Each of the that appellee “admission” “did this in order complaint state court referred appellant’s in keep your to client from proving him a clients; complaint the of the three to one crook,” could there be no “cause of action”2 by “malicious interference spoke of to each “prima New York law3 of under the facie . done with the . . sole Corp. Advance Music tort.” v. Ameri- See injury causing plaintiff to purpose [that] Co., 79, 83-84, can 296 N.Y. Tobacco 70 . to the benefit or . . inure cannot 401, (1946); 402-03 N.E.2d Benton v. Ken- . . profit a for GRT. create nedy-Van Mfg. Eng. & Corp., Suan 2 court “cause of action” re- state fourth 27, 28-29, 955, A.D.2d 152 N.Y.S.2d 957-58 to “course of conduct to appellee’s ferred 1956). (1st Dep’t plaintiff performing from work for prevent Whatever the merits Judge appellee’s “engaging clients” and to in holding as Knapp’s to the New law York on practices damaged and which have acts tort, prima appellant facie we think should in its business.” plaintiff opportunity develop have been an to hearing At time of scheduled theory its alternative based on interference request preliminary for a in with or contractual business relations.4 immediately below here rapid com- The rush was so junction, court, Perhaps began appellant clients, may because suit state and the be California spoke parties legal the court below contracts. phraseology, This which “causes of action.” Field, Dudley days of David back to the harks claim, prima tort 4. Unlike a facie the contractu tendency rigidity cause “unfortunate has al claim under New interference York does law Miller, Wright 5 C. & A. Fed- and confusion.” require that the defendant’s motivation be ,115 1216, and Procedure § eral Practice plaintiff; requires only injure it an intent court, plaintiff only (1969). In federal need performance with the of a contract. interfere showing he is entitled to relief. Fed. facts state Podwitz, 443, 447, v. 254 See Hornstein N.Y. 8(a)(2). A case removed to federal R.Civ.P. 674, (1930); Wegman Dairylea 173 675 N.E. v. governed by proce- federal is thenceforth court Inc., 108, 113-114, Cooperative, 50 A.D.2d 376 Foods, Granny v. dural rules. Goose Inc. 728, (4th Dep’t 1975), 70, 735-36 motion N.Y.S.2d Teamsters Local U.S. Brotherhood of 423, 437, 415 dismissed, 918, appeal 1113, (1974). for 38 leave N.Y.2d 435 94 S.Ct. 39 L.Ed.2d 979, (1976); 817 382 346 N.E.2d Ben N.Y.S.2d stage proceedings early it is At this Mfg. Kennedy-Van Eng. Corp., ton Suan & 2 v. governs. York law means New no certain 955, 27, 29, (1st Dep’t 152 N.Y.S.2d 958 A.D.2d clients, appellee, Appellant’s like are Califor- Products, Berson, 1956); Inc. 206 Misc. Avon nia-based, between and the contracts 867, 900, 903, (Sup.Ct.1954). 871 135 N.Y.S.2d appellee, as those well as between clients and 792 will be rebutted with every not have a chance to tion factual legal argument available. the New York case law or brief the
develop Georgia, question Railway whether New York law was even Southern & Florida v. At supra; Railroad, 493, note 2 applicable, see to amend its Coast Line 373 F.2d lantic denied, 851, necessary; develop Cir.), pleadings (5th if or to cert. 389 U.S. 88 S.Ct. sufficiently (1967). Capital City to enable it to sustain its L.Ed.2d 120 facts Cf. Co., any legal theory “prima Phillips case on other than Petroleum 373 F.2d Co. Gas (2d 1967) (error tort.” Because such an is Cir. grant per facie injunction vital if the court is to make an informed following hearing on mo manent grant injunction, whether to summary judg- preliminary decision for because tion ment, 56(c) requires prior Fed.R.Civ.P. that a mo- not aware to hearing that final summary judgment tion granted). be served at be was to relief *4 days hearing ten before a least is held.5 reversed, is judgment preju- without applies expressly this rule only While to right of either party to move for dice judgment summary party, motions later, at a more summary judgment appro- spirit requires think of the rule “[w]e of the stage litigation.6 priate hearing the same notice and where the contemplates summary court dismissal on and Reversed remanded. Lehman, Bowdidge its own motion.” v. (6th 1958). 368-69
F.2d Cir.
TIMBERS, Circuit Judge, concurring spe- Appellee argues that one who seeks cially: a preliminary injunction, appellant judgment I concur in the of the Court here, ready must be to show he is more which remands the case to the district court likely than prevail not to on the merits and proceedings, including further appropri- therefore must fully be armed with his le summary judgment proceedings. ate gal theory and supporting premises. factual Circuit, The Fifth however, rejected has proposition,
this and we agree with its rea however, agree, I do not Since with cer- soning: aspects of Judge opinion, tain Oakes’ I wish in special to so indicate concurrence. [Ljoss of a motion for preliminary injunc- tion only means temporary lethality. Fi- judgment
nal is not then a First, possibility. with deference to the author of the When such a adjudication limited majority opinion, is the I find the characterization order day, of the we say cannot with of the district court’s action here as revolv- assurance that will present justice, ing door in resulting propelling ap- everything they have. The very street, intima- pellant out on the to be both unnec- tion of mortality when summary Indeed, judg- essary and inaccurate. there is ment is at issue assures us that the mo- to be said for according much swift revolv- period The extended affidavits, for service of the mo- and since the results of failure are especially important drastic, tion is in the Rule 56 it is felt that the additional time is provides it context because an summary judgment needed to assure that the process opposing party is fair. prepare for the himself as regard well as he can with to whether Miller, Wright supra, 10 C. A.& § at 451 summary judgment should be entered. In (1973). theory, ought produce the additional time well-prepared complete presentation implication “special concurrence” disposition by the motion to facilitate its Timbers, Judge majori- to the effect that the addition, opposition court. In since to a ty Judge Knapp’s has some doubt as to “con- summary judgment motion often is a difficult justice scientious determination to see that is task, usually involving preparation of both done,” entirely is unwarranted. legal arguments and factual as well as many removed diver- treatment ing door COMMERCE TANKERS no doubt that the I have Here
sity eases. CORPORATION, judge, thorough- who is district experienced Defendant-Counterclaimant-Appellant, to New York knowledgeable respect with ly carry will out our man- law, upon remand usual conscientious determina- his date Vantage Steamship Corporation, Interven- justice is done. that see tion to ing Defendant-Appellant, I here Second, agree while adequate opportunity an MARITIME UNION NATIONAL OF sua the district court’s to meet prepare AMERICA, AFL-CIO, granting summary judgment, order sponte Plaintiff-Appellee. necessary incorporate it is think do not I of Fed.R.Civ.P. day provision notice ten VANTAGE STEAMSHIP summary CORPORATION, sponte every such sua
56(c) into Plaintiff-Appellant, case in which The rare order. appropri is summary judgment sponte sua an a manner such may arise ate MARITIME UNION NATIONAL OF can be made determination accelerated AMERICA, AFL-CIO, parties. See Hea unfairness without Defendant-Appellee. *5 (D.Conn.1970), James, F.Supp. 113 ly v. 179, 180, 76-7217, Dockets 7223. Nos. 1122, 1129 1971), rev’d (2 Cir. aff’d, 445 F.2d (1972). I grounds, U.S. on other Appeals, States Court United practice adhere continue would Circuit. Second leaving the details of the Circuit Argued Jan. of the district the discretion timetable Professor Moore’s accordance court in April Decided con formulation: flexible “[I]f summary judgment sua entering templates at least be should
sponte ma prepare and submit summary judg question of on the
terials ¶56.12, Federal Practice 6 Moore’s
ment.” 1976); cf. (2 Fed.R.Civ.P. ed.
at 56-339 12(c).
12(b) and