Jacobsen v. Filler
| Decision Date | 08 July 1985 |
| Docket Number | No. 84-1603,84-1603 |
| Citation | 790 F.2d 1362 |
| Parties | , 5 Fed.R.Serv.3d 148 Harlan L. JACOBSEN, Plaintiff-Appellant, v. Richard FILLER, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Harlan L. Jacobsen, in pro. per.
Donald O. Loeb, Asst. City Atty., Scottsdale, Ariz., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before DUNIWAY, and REINHARDT, Circuit Judges and RYMER, District Judge. **
This case was brought by Harlan L. Jacobsen against the City of Scottsdale and six city council members as well as against Scottsdale's Mayor, William Jenkins; the City Attorney, Richard Filler, and Donald Loeb, an Assistant City Attorney. The complaint, which alleges that the dismantling and confiscation of Jacobsen's newspaper racks violates 42 U.S.C. Sec. 1983, is only a single chapter in the parties' protracted struggle over the marketing of the semimonthly tabloid newspaper "Single Scene." During the course of the feud, Jacobsen has been represented by counsel on a number of occasions, and he retained legal counsel in the early stages of the present dispute. Jacobsen elected to represent himself at the time he filed the complaint, however, and he has continued to appear in propria persona throughout.
Jacobsen raises two issues on appeal. First, he contends that the district court committed error when it granted the city council members' motion for partial summary judgment because of his failure to file any response to the motion. Second, he argues that granting Loeb's motion for summary judgment was inappropriate in that the motion raises genuine issues of material fact not susceptible of resolution under Fed.R.Civ.P. 56. Because we believe that both summary judgement motions were properly granted, we affirm.
On July 3, 1980, the six Scottsdale city council members moved for partial summary judgment and noticed the motion for hearing under Arizona Local Rule 11(e). 1 In support of their motion, the defendants filed a "Rule 11(h) statement" 2 setting forth the specific facts upon which they intended to rely and the evidence in the record which supported their claim. Jacobsen did not respond to the motion with a written opposition, nor did he submit admissible evidence as required by Local Rule 11(h) and Fed.R.Civ.P. 56(e). However, he contends that he did not know that he had to do these things. 3 Urging that rules applicable to pro se prisoners should be extended to all pro se litigants, see, e.g., Moore v. Florida, 703 F.2d 516 (11th Cir.1983); Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975); Hudson v. Hardy, 412 F.2d 1091 (D.C.Cir.1968), Jacobsen argues that it was the district court's duty to advise him of the measures he should take to oppose the defendants' motion; and that it was unfair to enter summary judgment without having done so.
We reject Jacobsen's argument, for a number of reasons. First and foremost is that pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record. Trial courts generally do not intervene to save litigants from their choice of counsel, even when the lawyer loses the case because he fails to file opposing papers. A litigant who chooses 4 himself as legal representative should be treated no differently. 5 In both cases, the remedy to the party injured by his representative's error is to move to reconsider or to set aside; 6 it is not for the trial court to inject itself into the adversary process on behalf of one class of litigant. 7
Imposing an obligation to give notice of Rule 56's evidentiary standards would also invite an undesirable, open-ended participation by the court in the summary judgment process. 8 It is not sensible for the court to tell laymen that they must file an "affidavit" without at the same time explaining what an affidavit is; that, in turn impels a rudimentary outline of the rules of evidence. 9 Unlike the conversion of a 12(b)(6) motion into a motion for summary judgment, which only requires notice of what the motion now is, 10 Jacobsen's proposal requires advice as to what the motion must mean. To give that advice would entail the district court's becoming a player in the adversary process rather than remaining its referee.
Finally, even if a substantive notice requirement were desirable, it should be enacted through formal amendment rather than piecemeal adjudication. Rule 56's separate notice provision (compare Rule 56(c) with Rule 6(d) ) and description of summary judgment (compare Rule 56(e) 11 with Rule 12(b) ) indicate that the Supreme Court and its Advisory Committee have considered the special problems raised by the summary judgment procedure and, by failing to require specific notice of the nature of summary judgment, have concluded that the present federal rules (particularly when amplified by local rules such as Arizona Local Rule 11(h)) 12 already apprise litigants of their summary judgment obligations. Requiring additional notice to pro se litigants would be an accretion onto Rule 56(c), not an interpretation of it; 13 and as an ad hoc amendment it would not be standardized, codified, or subject to collective decision making.
For all of these reasons, we decline to extend the Hudson rule and conclude that the district court did not have to inform Jacobsen of the need to file affidavits or other responsive matter before granting summary judgment against him.
On September 8, 1983, defendant Donald Loeb moved for summary judgment and filed an affidavit stating that he had no prior knowledge of, nor did he order, authorize, or participate in the actions alleged in the complaint. Jacobsen responded with three affidavits, one his own and two from attorneys who had worked for him. The district court granted the motion in a minute order filed November 14, 1985; Jacobsen appeals on the ground that his counter-affidavits create a genuine issue of triable fact as to Loeb's participation in the alleged events. 14
Summary judgment under Rule 56 is not appropriate where genuine issues of material fact remain to be tried. Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir.1985); see generally Schwarzer, "Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact," 99 F.R.D. 465 (1984). In this case, Jacobsen's affidavits fail to raise such an issue. Jacobsen's allegations that Loeb was involved in prior litigation with him and that Loeb threatened him with further action do not show that Loeb actually was involved in or knew about the confiscation of the newsracks. The same can be said for attorney Moen's statement that he had negotiated with Loeb after the first and before the second incident; even if true, Loeb's knowledge of Jacobsen's complaint does not raise a genuine issue whether Loeb knew about the subsequent actions of other city employees. Finally, Jacobsen's deposition testimony about what he read in a newspaper article (not introduced into evidence) and what his attorneys told him is not based on personal knowledge and is inadmissible hearsay. Therefore it fails to raise a genuine issue sufficient to withstand summary judgment.
Accordingly, the entry of summary judgment against Jacobsen and in favor of the city council members and Donald Loeb is AFFIRMED.
The majority's refusal to recognize the right of pro se litigants to be adequately informed of their procedural obligations prior to the entry of summary judgment against them rests on several false factual assumptions and on an inaccurate interpretation of the law of this and other circuits. Because I believe that our previous cases recognize the rights of all pro se litigants to the procedural protection of the court, and because I believe that affording such protection serves the interest not only of the litigants but also of the court itself, I respectfully dissent.
The majority opinion creates two classes of indigent litigants, those who are poor and law abiding, and those who are poor and not. It then affords lesser rights and protections to the former. In this respect, the majority's actions are contrary to the view our circuit has previously expressed. Moreover, its opinion rests on two false factual assumptions: that pro se status is voluntary and that the appellant in this case received adequate notice of his obligation to respond in writing to appellee's summary judgment motion. I address each assumption in turn.
The majority portrays a litigant's pro se status as the product of choice, whereas such status is most often the result of necessity. The majority equates a litigant's so-called "choice" to appear pro se with other litigants' choice of counsel. The comparison ignores the economic reality that lies behind most pro se appearances. Given the disparity in legal skills and knowledge that exists between a layman and a lawyer, few litigants will "choose" to prosecute or defend a suit without representation if they are able to hire a lawyer.
Contrary to the majority opinion, appellant did not receive adequate notice of his duty to respond in writing to appellee's motion for summary judgment. Other circuits have assumed that the filing of a motion for summary judgment does not provide notice of the duty to submit documentary materials, without having explicitly analyzed the language either of Federal Rule of Civil Procedure 56 or of the relevant Local Rules. See, e.g., Moore v. State of Florida, 703 F.2d 516, 520-21 (11th Cir.1983); Lewis v. Faulkner, 689 F.2d 100, 101-02 (7th Cir.1982); Ham v. Smith, 653 F.2d 628, 630-31 (D.C.Cir.1981); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975). Such an analysis merely confirms that assumption, however. The responding affidavit requirement is not set out explicitly in either ...
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