Myrtle Nell Catrett, Administratrix of the Estate of Louis H. Catrett, Deceased v. Johns-Manville Sales Corporation

WALD, STARR, Before BORK and Cir- Judges. cuit by Opinion for the Court filed Circuit Judge STARR.

Dissenting opinion Judge filed Circuit BORK.

STARR, Judge. Circuit Appellant Myrtle Nell Catrett filed this wrongful death action in United States Dis- September trict Court in 1980. Her com- plaint, sounding negligence, breach of warranty,' liability, alleged and strict husband, the death in 1979 of her Louis H. Catrett, exposure prod- resulted from his containing ucts manufactured or asbestos corporations. fifteen named distributed below, During proceedings two manu- challeng- facturer-defendants filed motions personam juris- the District Court’s diction; corporate the other thirteen de- summary judg- fendants filed motions for granted ment. The District Court the vari- motion, opposing this Mrs. Catrett re- all Mrs. motions as to defendants. ous which, primarily on three documents lied appeals only from the District now Catrett claimed, “demonstrate that there is she to Cel- Court’s dispute”4 genuine material Corporation.1 otex exposed Mr. Catrett had ever been whether reviewing the record After products.5 The docu- to Celotex asbestos are constrained to conclude that the we copy transcript ments were a of the of her summary granting erred in District Court 17, 1979, July deposition taken husband’s According- judgment in favor of Celotex. proceedings for use in in his earlier work- pro- and remand for further ly, we reverse compensation claim and man’s two letters: ceedings. O’Keefe, one from William of Aetna Life & Casualty, attorney to Mrs. Catrett’s Secretary I one from Assistant of a Chi- enterprise, Anning Co., cago & Johnson moving papers The version of Celotex’s Aetna, stating both that Mr. Catrett had granted was on which product during employ- used Celotex his 23, December 1981.2 Celotex was filed on Anning Chicago ment with & Johnson in in prop- argued that was argued 1970-71. Mrs. Catrett unsuccess- pro- Mrs. Catrett had “failed to er because fully to the District Court that these three any product duce evidence [Celotex] documents the essential link “evinced be- injuries proximate cause of the ... was product tween Ca- [Celotex’s] [Mr. jurisdictional limits of alleged within trett], question and it would for further Court.”3 Celotex District] [the jury proximate toas whether this was the is no evidence contended that “[t]here injuries cause of the decedent’s and ulti- that the defendant was ever whatsoever mate death.”6 product exposed contain- [Celotex] product strenuously argues appeal on ing asbestos ... or that such Celotex proximate plaintiff’s evidence is infirm in that the any way in cause of the jurisdictional hearsay documents are and are inad- decedent’s death within the three any exception under to the hear- Court.” missible limits of Statement District] [the evidence, say There Is No rule. Such inadmissible Celo- of Material Facts as to Which Issue, may oppo- in argues, 3sa- tex not be considered reprinted Genuine in S.R.E. at summary judgment. a motion for 4sa. sition to challenge based on its conclusion that there was “no 1. Mrs. Catrett declined to the dismiss- showing exposed parties de- of the other fourteen dis- al of twelve and, argu- prior product defendants to oral District missed as fendant Celotex’s in the of Co- court, appeal statutory peri- discontinued her ment in this lumbia or elsewhere within the 21, parties, Armstrong of two Transcript July Proceedings from the dismissal at od.” Newall, Ltd., 9, added). and Turner & World Industries (emphasis reprinted in R.E. at 595a agreements. pursuant to settlement ruling District Court’s was from the bench July proceeding. No written at Corp. Celotex for Sum- 2. Motion of Defendant ruling. opinion accompanied the (Motion Judgment Summary Judg- mary ment), Appellee’s Supplemental reprinted in 4. Plaintiffs Memorandum of Points and Author- (S.R.E.) Excerpts at Isa. Celotex had Record Opposition ities in to Motion of Defendant Celo- filed, September an earlier motion on (Plain- Corporation Summary Judgment tex summary judgment, which it withdrew on 361a, Memorandum), reprinted in R.E. at tiff’s 3-4, See Docket Entries at November 362a. (R.E.) Excerpts reprinted Record at 7a-8a. reference, 5. For ease of we use the term "Celo- Judgment Summary reprinted 3. Motion for products products” tex to refer to those manu- argument might While such an in S.R.E. at Isa. predecessors factured Celotex's in interest basis for dismissal for lack of read as a be personal allegedly exposed. and to which Mr. Catrett was venue, change jurisdiction or for a was for the motion Memorandum, reprinted 6. Plaintiffs in R.E. at 56(b). District Court’s Fed.R.Civ.P. 361a, 362a. summary judgment must therefore have been specific set forth facts not, however, need reach We genuine issue for trial. issue,7 there is a evidentiary inasmuch as defendant’s moving papers patently were defective 56(e) added). (emphasis This Fed.R.Civ.P. face, rendering inappropriate their unequivocally places a burden of com- rule record summary judgment on the grant of upon specific facts ing forward with Court. Celo it stood before the District as a motion for party opposing affidavits, declarations or tex offered mo- proponent’s when support any sort evidence of whatever provided in supported “made and tion is the con summary judgment motion. To Advisory Note rule.” The Committee th[e] solely on was based trary, Celotex’s motion “[wjhere explains that the evi- to Rule 56 purported failure to support the motion dentiary matter her claim.8 credible genuine not establish the absence does difficulty, to faced While Celotex issue, summary judgment must denied sure, negative”9 that “proving opposing evidentiary if no matter is even exposed not decedent had been plaintiff’s Advisory Committee Note on presented.” appellee made no effort products, to its 56(e)(em- 1963 Amendment to Fed.R.Civ.P. evidence, of affida in the form any adduce added). Supreme phasis As the Court otherwise, support its motion. vits or clearly respect, in this the stated “[b]oth see, undisputed that failure now As we will commentary background the of the fatally motion defective. renders its conclusively show that it 1963 amendment of modify intended to the burden was not II moving initially the party the ... show 56(e) of of the Federal Rules Rule concerning any genuine of a issue absence 1963, Procedure, amended in Civil as Kress & material fact.” Adickes v. S.H. summary judgment un not clearer that 144, 1598, 1609, Co., 159, 398 90 S.Ct. U.S. not lie. the circumstances before us will der (1970). firmly It is estab- 26 L.Ed.2d 142 provides: It opposing motion party the lished judgment motion for is When a judgment the of bears burden provided in this supported made and as moving party responding the rule, upon party may not rest adverse after coming of forward with has met its burden or denials of his allegations the mere any genuine issues proof of the of absence pleading, response, by his affidavits but rule, provided in this of material fact.10 or as otherwise Co., case, See, e.g., & Adickes v. S.H. Kress our treatment of the we need 7. Under 1609; 160, admissibility documents S.Ct. at First National rule on the of the 398 U.S. at 90 289, Co., 253, question. 88 Bank v. Cities Service 391 U.S. 1575, 1592, (1968); 20 L.Ed.2d Davis v. S.Ct. 569 complained also that Mrs. Catrett 8. Celotex 160, Ltd., 172 Chevy 667 F.2d Chase Financial interrogatories to answer failed (D.C.Cir.1981) (“it party beyond is cavil that a sought discovery. Statement of documents opposing summary judgment required to is as Which There Is No Genuine Material Facts proffer affidavits or other evidence rebuttal However, Issue, reprinted S.R.E. at 3sa-4sa. ‘only to satis if its omission enables the movant sanctions, did not seek under Fed.R. Celotex showing fy of mate his burden of that no issue discovery comply for failure to with Civ.P. persists”1); Weisberg v. United States rial fact sought summary judgment requests but instead Justice, (D.C. Department 627 F.2d 368 of 56(b). Sum- Fed.R.Civ.P. See Motion for Cir.1980) (“It equally proce settled in federal mary Judgment, reprinted in S.R.E. at Isa. party seeking summary dural law that '[t]he showing judgment there is no has the burden of with, ad- are not faced and thus do not 9. We fact, genuine on issues issue of material even manufacturer, dress, where a sued the situation have the burden at where the other would comply product, user of its seeks to a remote trial, opponent presents no con and even if the nega- simply "prove cannot the with Rule 56 but ”); Founding flicting evidentiary matter.’ Church non-exposure or without refer- tive" of non-use Security Agency, Scientology 610 v. National plaintiff. in the hands of the ence to evidence of F.2d (D.C.Cir.1979) (same); Here, Nationa whatever was made Celotex no effort l Camp Employees Government comply requirements Association of Rule bell, (D.C.Cir.1978) (“Facts 593 F.2d see in the text that follows. we shall trial, course, record, At of the to offer Mrs. Catrett state evidence in response.13 proving by have the burden of ad expo missible evidence that her husband’s Ill products proximately to Celotex’s had sure Despite the clear state of the law rele- caused his death. If Mrs. Catrett failed to vant facts burden, dissent satisfy her then her case would be that of summary judg- insists to a vulnerable motion for directed verdict. proper. position ment was That is based However, held, repeatedly as this court has misconception on both a of the factual set- party moving n ting in which proving the burden of carries absence granted and, generally, here more on an of a material issue of fact “even on issues overly reading legal proposition. broad where the other would have the bur den of at trial.”11 throughout The dissent insists lacks evidence as to causation proffered In this ease Celotex noth that, accepting plaintiff’s even fac- ing. allegation It advanced the naked allegations, tual would have to had not come forward in be entered Summary movant. discovery with evidence to her alle entered, empha- dissent gations exposure decedent’s to the sizes, because the trial found no rules, product.12 defendant’s Under settled of the expo- decedent’s approach will not do. barebones Mrs. sure to Celotex in the District Columbia required, given simply Yet, Catrett was not this or plaintiff elsewhere.14 the had of- demonstrated, conclusively say not but essential to required 12. That is not to that Celotex was claim, merely the movant’s by are not established specific to come forward with some form of silence; rather, opponent’s Indeed, his the movant submission. Rule is56 clear that there showing must shoulder the burden of tively affirma requirement moving par- is no absolute ty that the any meaningful the absence of support furnish affidavits in of its motion. issue.”); here, Corp., United States v. General Motors simply But Celotex did not fail to submit (D.C.Cir.1975) ("The party 518 F.2d 441 support affidavits or declarations in of its mo- seeking summary judgment tion; has the burden of literally nothing it came with save forward showing genuine there is no issue of material pointing perceived plain- shortfalls in the opponent presents fact ... even if the no con tiffs case. matter.”) (footnotes flicting evidentiary omit require It is in no wise unfair to Celotex to it ted); Bloomgarden Coyer, v. F.2d 479 206- support its case under Rule even under ("The (D.C.Cir.1973) party moving 07 for sum before, the circumstances here. As we noted if mary judgment bears the burden of demonstrat party comply discovery has failed to genuine the absence of a issue as to requests, interrogatories requests such as and fact, opponent material and even if his comes documents, production of the Federal Rules nothing, summary judgment forward with provide elaborately system an drawn of sanc- supporting be denied if the facts the motion do comply, including tions for failures to the ulti- not establish the nonexistence of such an is sue.”); Thus, mate sanction of dismissal of one's case. Yorger Pittsburgh Corning see also v. ruling our in no manner leaves a such as (7th Cir.1984) (de Corp., 733 F.2d 1222 Celotex remediless in the face of unsuccessful fendant asbestos manufacturer did not meet its discovery opposing efforts to effect of the side’s showing genuine of "burden that no issue of case. regard fact exists in material leged exposure al evidence, ...; 13. Since Celotex offered no we need plaintiff therefore should speculate not and do not as to what penalized not be for failure to attach an affida adequate would have been response”). meet Celotex’s vit to his burden. Corp., supra, 11. United States v. General Motors 441; Weisberg supra accompanying 518 F.2d at see also v. United 14. See note 3 and text. We Justice, Department supra, again States 627 F.2d at note that the discussion at the time the of (quoting Founding Scientology granted actually spoke 368 Church v. motion was to venue. It of Security Agency, supra, elsewhere,” phrase 610 F.2d at appearing National was the "or 836); Founding discussion, Scientology prior judge’s Church v. Nation- with no in the oral of Security Agency,supra, (quot- ruling argument 610 F.2d at al ing at the close of that made the Corp., conceivably United States v. General Motors of even 441). proper. 518 F.2d at True, question, given and the very point. benefit the féred evidence on that form, presumption the evidence was not that the failures occurred un- admissible evidentiary at least some of the infirmi- but specified reasonably anticipated or der use ty plainly point is that curable. equivalency abuse. The evidence, plaintiff and if her did have directed verdict was clear- judgment and allegations accepted by jury as were premised in that case on the existence ly true, plaintiff, rather than the defend- this clear and sufficient ant, judgment. would have entitled to been summary judgment motion. fully recognize unique vantage We equivalency This breaks down when point of the District Courts to evaluate unsupported summary judgment motion discretion that evidence and reasonable having is made the burden granting Judges rightly enjoy District gone If at trial. this case had summary judgment. have no desire to We trial and Mrs. Catrett had offered no ad- discretion, unduly our cabin that sound case, presenting missible evidence her Here, opinion should not have that effect. plainly Celotex would have been entitled to summary judg- the bedrock fact is that the offering a directed verdict even without totally unsupported.15 ment motion was event, of its own. The -issue on which we rule is therefore already enjoyed nature, legal purely and our conclusion evidence, opportunity present her ground no new whatever. The breaks ground appropriately the defendant could long, Rule and a un- clear dictate of simply prove motion on her failure to her precedent17 line of is that broken trial, however, case. Before rather than proper properly is not absent a arguing proven that the has not supported simple motion. This case as summary judg- her the movant for as that. argues ment cannot dissent, however, accuses us of fail- her case. While Mrs. Catrett not of- circuit, ing to follow law evidence, movant, fered admissible expressed in Mo- United States General court, are entitled to conclude that she tors, supra, and hornbook law summa- cannot offer admissible evidence if but ry judgment and directed are func- verdict supported if the movant has its motion tionally equivalent. charge ground- The Again, in accordance Rule .56. sure, To be states less. General Motors pivotal difference between this case and party seeking summary judgment that a is that in the latter case General Motors “is entitled to the relevant benefit summary judgment motion for was presumptions, if the established facts argue equivalence supported. To presumptions enti- relevant summary judgment between and directed trial, tled him to a directed he is verdict applies in such verdict a situation to this summary judgment entitled to a ignore case as is to well statement in Motors, supra, 56.” General Rule party seeking General Motors However, F.2d at 441-42. Mo- “[t]he General summary judgment has tors, the burden of had certain movant established genuine there is no issue of facts, namely significant of fail- mate- a number performance opponent presents rial fact ... even if the ures not attributable to age parts in conflicting evidentiary or of the automobile no matter.” wear Motors, correctly (foot- dissent notes that Rule 56 has 18. General 518 F.2d at 441 omitted). Wright, no ironclad rule that a motion for where, here, plaintiff has had two grant summary The District Court’s of Corporation years discovery and knew that she was judgment in favor of Celotex is response expected remanded her in therefore reversed and case show not, course, (footnote omitted). 10A C. A. Miller Such would of Kane, Wright, & M. Federal (1983). 2727 at 130 § be the case with a directed verdict. Practice and Procedure supports Moore’s treatise also Professor Furthermore, party against whom the summary judgment position directed that be is to entered must have sufficient equivalency down in the case at verdict breaks Kane, Wright, agreeing procedures 10A & the two advance notice. Miller hand. While that akin, operations objection their are Moore’s observes that 2720 at 34. The last minute § not bear the proffered by plaintiff, differ when the movant would to the evidence see Tran- 3-4, burden at trial. 6 Moore’s script July Proceedings reprint- Federal Practice Furthermore, (1983). j[ at 479-80 587a, 589a-90a, 56.15[3] apparent ed in R.E. and the papers “may in Moore's notes that the movant’s by Judge reliance the District on what were discharge his bur- themselves be insufficient to den; concerns, actually supra speak venue see note opposing party need and in that event the against powerfully that notice here. proffer oposition.” Id. materials in at 488 by positive evidentiary a of this she had none. convinced to defendant’s claim that summary principles of showing. Several majority The thinks otherwise. that while a law demonstrate view, my majority opinion In on rests evidentiary showing usually will be positive premise: judge a flawed can that a district required. always is not necessary, it in grant summary judgment, never even an First, law and the law of it is hornbook case, obviously unless a meritless judge should that a trial this circuit Rule 56 pursuant first makes a motion plaintiff if the has so supports that motion with admissible element of on an essential little evidence is that the evidence. The result this case clear a directed that it is that his claim unsought extension granted is granted at trial. would have be verdict proof. defects in her of time to cure the Kane, Wright, A. Miller & M. Federal 10 C. wrong, result premise being The § 2713.1, at 616 Practice and Procedure gratuitous. (1983); v. General Motors United States (D.C.Cir.1975); 441-42 Corp., 518 F.2d I. (2d 201 F.2d 265 Dyer MacDougall, Cir. majority supposing that a The errs (L. Hand, J.). 1952) Judge As Leventhal seeking summary judgment must al- said, party seeking summary judg- a ways evidentiary affirmative make an “is entitled to the benefit of ment is not showing, in cases where there even if presumptions, and the estab- relevant triable, dispute. The cases the ma- factual presumptions and relevant lished facts jority only moving party cites hold him have entitled to a directed ver- would showing the absence of a has the burden of trial, dict at he is entitled to a material, dispute, even on issues judgment under Rule 56.” General Mo- opponent have the burden where his would tors, point at 441-42. There is no 518 F.2d op. proof Maj. at trial. at 5 nn. sending a case to trial to have consider the central These eases do not In this a di- judge direct a verdict. question here: must whether clearly required rected vérdict invariably evidence. be made with since the lacks admissible evi- important keep It is in mind the dis- causation, an essential element of dence tinction between a burden her case. proof and a defendant’s on the merits bur- respect, In this a motion for proof summary judgment. den of motion for a directed judgment is like a standards of which each burden is evidentiary is an show- verdict. neither necessarily the same. A satisfied are not invariably required.1 In ing both mov- case an affirma- must his per- if he party’s burden is satisfied tive, preponderance of the evidence. How- judge opponent suades the trial that his ever, seeking summary judg- a defendant a matter of law even when all must lose as judge ment need convince the trial disputed inferences are resolved facts and jury that a reasonable find for opponent’s in his favor.2 plaintiff, disputed if all issues of even analogy fact inferences resolved were between requirement emphasized plaintiff’s favor. There is no and directed verdicts has been always by Wright Miller. the trial become & granted alleged fairly pos- at the facts are 1. A directed verdict close inferences from sible, plaintiffs judges case even before defendant has should be more charitable to non- any appro- moving parties especial- at all. This is introduced evidence on See, plaintiffs priate ly and the evidence when the case evidence can come until demeanor out. Co., legally support supporting e.g., to a it are insufficient Adickes v. S.H. Kress & 398 U.S. exactly 1598, 1609, (1970) We have this situa- favorable verdict. 90 S.Ct. 26 L.Ed.2d 142 However, summary judgment stage. (Harlan, J.). at competing tion in this case the where infer- possible especially ences are not where complete suggest proof, that the standards for there is a absence of the stan- 2. This is not to governing summary judgment granting summary judgments and directed ver- dards and direct- absolutely competing largely Where ed verdicts coincide. dicts are identical. mary judgment sponte long so may clear the movant dis- sua the that [I]t [is] notice losing party was on that he had to charge by demonstrating his burden that all his evidence. 10A come forward with C. if the case trial there went to would be Kane, M. Wright, A. Miller & competent support judg- evidence to a § 2720, clearly rule at 28. This means that for his If no evidence opponent. ment summary require does judgment af- to sustain the non- be mustered evidentiary firmative of the absence moving party’s a trial would position, dispute. judge Rather of a factual the trial the useless and therefore is enti- movant this absence and demand need notice matter of In tled to as a law. If it is that it be corrected. not corrected underlying theory this sense the summa- notice,5 judge’s the after it becomes trial ry judgment to that of the is similar grant summary judgment duty to to con- directed verdict motion. a judicial serve scarce resources and avoid Kane, court, useless If the district on its Wright, Miller & M. Fed- trial. 10A C. A. motion, may grant summary judgment § own 2727, at Practice and Procedure eral required concludes that whenever it evi- (1983). principles to these Pursuant produced, necessarily dence cannot be it Motors, and to our decision General may follows that a defendant obtain sum- 441-42, clearly is at defendant Celotex F.2d mary judgment brings when it that situa- summary judgment. Plaintiff’s entitled to tion to the court’s attention.6 affirmative, admissible evi- total lack legal A third principle relevant is the in a causation result direct- dence of would pretrial judges discretion substantial trial should ed verdict trial and therefore enjoy manage to their caseloads. It is hard grant a warrant to see discretion if how that is abused a uphold to majority’s now. refusal that judge, request, at the asks a defendant’s to grant represents a clear failure follow plaintiff that he has to show minimal evi- Motors3 overlooks this func- General support go dence to his case before he can identity tional between Indeed, judges forward to trial. district and directed verdicts.4 authority pretrial force the broad to principle A second of law also shows that parties to narrow order to reduce issues majority has Under some cir- isolating particular the erred. trial time the factual cumstances, disputes trial sum- are to be tried. Fed.R.Civ.P. judges Accordingly, Motors the but for the It is true in General whatsoever. unsought seeking summary judgment was able to and indefinite extension of time the majority grants plaintiff, presumptions improperly there from the after it benefit relevant question plaintiff but would be no had established certain facts. In how- ever, possibly prevail. necessary could not it is not defendant presump- from the establish facts to benefit prove tion that causation. 5. See for a Part II discussion of the ade- infra given quacy need to facts in a sum- establish the notice this case. depend mary judgment on motion will the na- presumptions at issue. ture of majority agrees judge 6. The that a trial em- powered grant summary judgment sponte sua majority suggests passage pro- that a he a 4. The when concludes that has not position supports Moore’s duced admissible evidence on an essential case, however, equivalency judgment directed verdict breaks element of claim. In this her Moore, majority judge stripped the case at hand. 6 J. Moore’s down in finds trial of his (2d jj 1972) (foot- power solely ed. Federal Practice act because Celo- 56.15[3] defendant omitted). passage unsupported I think this irrelevant to tex filed note motion. I do not un- clearly present contemplates why case because it derstand this action to the law authority has at a situation where the least suit diminishes the the trial go possess. evidence which to trial. would I shred of otherwise also do not under- moving majority why defendant that circumstance a stand continues focus produce contrary papers Celotex's have to motion does not focus in- triable, Here, dispute. triable, factual stead on the absence here of a dispute. absence however, plaintiff has made no factual 190 triable, dispute factual is a there authority if believes This mocked 16. be solely Mrs. Catrett al- because this case obligated trial

plaintiffs could not be before complaint. in her Bare leged causation they least some evi- to reveal that had at complaint in a are admissi- allegations of supporting the essential elements dence trial, however, sup- and would not ble at their lawsuit.7 for Mrs. Catrett.8 jury verdict port a obliga Finally, imposes Rule 56 itself no focussing in- properly than Rather parties seeking summary judgment tion on triable, dispute on whether a factual quiry positive prov always to introduce evidence case, majority in this has become Al exists dispute. ing the absence of a factual interplay the de- entangled in the between probably the rule though the framers of on the of necessary fendant’s burden thought be such evidence would plaintiff’s motion and the burden cases, in most Advisory see Note Committee lawsuit, persuasion in this which she re of 56, they imposed no ironclad to Rule majority has re- at all times. The Indeed, specifically al retains Rule 56 quirement. in effect the prove the defendant to quired motion summary judgment on lows for negative plaintiff’s even supporting affidavit. Fed.R. without on an though the evidence 56(b). appropriate in cases This is Civ.P. of her claim. This tem- accepting essential element even present like the one where plaintiff’s switches the burden allegations porarily non-moving parties’ factual to the defendant persuasion the lawsuit judgment for the mov one must still enter States, prove that it could not See, which now v. e.g., ant. Chambers United conceivably plaintiff’s inju- (8th Cir.1966); have caused 227 Hubicki v. 357 F.2d (3d majority required the Inc., ry. The should have 484 F.2d 522 ACF Industries persuade trial Cir.1973); States, defendant to Ramsey 329 v. United triable, dispute on Cir.1964); there is no factual (9th Reynolds v. Nee F.2d 432 (D.C.Cir.1942); dle, causation.9 132 F.2d Theatres, Inc., 42 Seago v. North Carolina in most agree majority I with the (4th Cir.), F.2d 987 aff'd, F.R.D. 627 able to estab- cases defendants will (cid:127) (1966). Here as in “no factual Chambers dispute by lish the absence of factual complaint dispute exists and the [absent positive evidence that under- producing does not state a evidence of causation] showing. factual So mines 357 F.2d at 227. cause of action.” long as the has even one iota of evidence, defendants will triable, weak inferential this case lacks a factual Since attacking affirmatively stipulate if to to burden dispute, even Celotex were is no that evidence to there of all of Mrs. Catrett’s the truthfulness dispute suitable for trial. Adickes evidence, still Celotex would admissible Co., 398 majority The Kress & U.S. prevail as a matter of law. S.H. Wright, supra, at that time. 10A C. that Fed.R.Civ.P. 37 does evidence It should be noted 7. party various sanctions where a at 163. § make available improperly However, discovery. resists pre- availability of those sanctions does not also 56(e) majority sup- cites Fed.R.Civ.P. seeking summary judgment clude a from port provision does indicate for its view. This his obli- has failed to fulfill where gation that when a motion for prima make out a facie case. to supported by must be made and affidavits it discovery problem is not but here resistance rebutting Clearly, affidavits. answered inability provide evidence. produce rebutting Catrett need not affida- Mrs. produced any vits since Celotex has not affida- course, is, conceivable that on remand It Nonetheless, vits in of its motion. Mrs. eventually evi- will find admissible Mrs. Catrett obligated Catrett is still some admis- possibly prevail at causation and even dence of supporting evidence the essential elements sible my any way change would not in trial. This why do of her case. I not see she should should affirm the that we conclusion get just to trial because she was not able summary judgment before us now. It is settled obligated produce rebutting get not allow a courts should law that 56(e). Rule merely hope in the that he will obtain to trial manage litigation to Here, however, tial discretion be- 1609. S.Ct. it. That discretion includes the fore discre- no has made factual whatsoever. summary judg- when a tion to determine to Accordingly, there can no doubt as ripe. ment is triable, dispute in factual absence case. this if the majority It would have been better by holding the result it does reached II. given plaintiff should have been a new grant of majority objects also to the produce to admissible evidence of deadline case on the would, That for the reasons causation. giv- should be ground that Catrett wrong, just given, be but at least it would opportunity produce ad- en an additional damage utility of Rule 56. I not under- disagree. on causation. I missible evidence judicial impulse plain- to save a stand which, just like one after This case tiffs case from what have been care- judge pre-trial a con- discovery, the holds preparation, less but the deformation of ference, how he intends asks summary judgment procedures high is too case, and prove each element of his price pay gratification for the a of that plaintiff has no admissible learns that the impulse. indispensable element of

evidence of an ripe That ease would be

that case. Here, by summary judgment.

disposition years has had almost two

Mrs. Catrett

prepare her case for trial. The motion for put her notice that

summary judgment she had no evidence of Celotex claimed ATLANTA GAS LIGHT represented Mrs. Catrett causation. COMPANY, Petitioner, certainly aware that counsel who were v. judge the district could consider ad- FEDERAL ENERGY REGULATORY determining the exist- missible evidence COMMISSION, Respondent, triable, dispute.10 factual 6 J. ence of Moore, Moore’s Federal Practice K56- Corporation, Pipe- Alabama Gas Carolina (2d 1972), Re- ed. Government 11[1 8]— Company, line Electric South Carolina public Compass China Communica- Gas, Chattanooga Company, & Gas (D.D.C.1979). F.Supp. Corp., 473 tions Company, Southern Natural Gas Mis- Any attorney should have known trained Valley sissippi Company, Nipro, Gas offered inadmissible. that what was Inc., al., Georgia Group, et Industrial produce any failed to ad- Counsel Intervenors. of causation but failed at missible evidence No. 82-2231. hearing to seek Appeals, United Court of produce such evidence. States additional time to circumstances, District of Columbia Circuit. the district these Under judge clearly acted within his discretion Argued 4,Oct. giv- without granting Decided March additional, unrequested Mrs. Catrett opportunity admissible evidence appellate judges, to her case. As

essential leave the district court substan-

we should rules, 10. departure established narrow and isolate the factual issues are to from the majority’s holding inevitably majority suggests be tried. The will that the district pointless anticipated of causation be- lead to trials where inadmissible evidence consider disputes admissibility problems evi- fail to materialize with the because cause the admissible holding majority’s might eventually evidence cannot be be cured. This found. The inno- dence point parties substantially destroys any now face to vation on this will under- incentive that trial, prior utility summary judgment proce- form mine the put into admissible utility pre-trial yielding efforts to dures while concomitant benefits. and diminishes notes The dissent's cite to supported any particular be man- provides support Miller & Kane no better for its does, however, require The motion some ner. position. similarity The treatise does note the support, support totally lacking. and here was underlying summary judgment in the theories and directed verdict but also notes the movant's supra 16. See at 184. opponent burden to demonstrate that his support not a supra in his favor at trial. See note 17. See that, proceed- for further to the District Court argues The dissent since also ings. under some circumstances the court no grant summary judgment sponte, sua It is so ordered. requirement exists that the lack of a factu dispute affirmatively demonstrated al BORK, Judge, dissenting. Circuit Support moving party. for this Wright, A. proposition is found in 10A C. majority’s decision this case un- Kane, Miller & M. Federal Practice and authority the traditional dermines trial § However, 2720 at 28. Procedure grant summary judgment judges to in mer- salutary principle applies propriety to the though plaintiff itless Even cases. has summary judgment when no admissible evidence on an essential ele- summary judg there was no motion case, majority today ment of her allows court, there ment before the not when a motion summary judg- her to survive summary judgment mot support for a This probably ment. decision will lead to ion.19 unnecessary an trial followed a directed exception to Lastly, respectfully we take gen- verdict for defendant Celotex. More suggestion are creat- the dissent’s that we erally, precedent today established will plaintiff, having requirement a that a energy trial court time and waste un- support his or her should be failed necessarily procedural to the add costs and more time to admissible allowed by litigants. burdens faced nothing doing are evidence. We The issue here is whether a trial supported its properly Had sort. Celotex summary judgment procedures may use motion, we would require plaintiff, ample a who has had time inadmissibility of Mrs. Ca- agree that the discovery, to show that she has some oppo- fatal to her trett’s evidence would be admissible evidence essential However, the motion. we refuse sition to element of her case. The alternatives are plaintiff the case law is to hold the —and defendant, moving is the which abundantly should not so clear that she negative party, held, higher stan- —that supra see note 10—to can find evidence—or that never prop- dard than the movant. Until Celotex go so that the the ease forward motion, erly supported Mrs. Catrett more time to cure her lack of still required offer evidence at all. apparently latter evidence. The alternative do not hold that she should have more We proffer means that the need never simply yet that her time had not time but she faces a motion for a evidence until come. me directed verdict at trial. It seems to IV better that be awarded

Case Details

Case Name: Myrtle Nell Catrett, Administratrix of the Estate of Louis H. Catrett, Deceased v. Johns-Manville Sales Corporation

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 8, 1985

Citation: 756 F.2d 181

Docket Number: 83-1694

Court Abbreviation: D.C. Cir.