Macklin v. Butler, 76-1581

• Decision Date: 15 April 1977
• Docket Number: No. 76-1581,76-1581
• Citation: 553 F.2d 525
• Parties: 14 Empl. Prac. Dec. P 7501 James MACKLIN et al., Plaintiffs-Appellants, v. Albert BUTLER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 525

553 F.2d 525

14 Empl. Prac. Dec. P 7501

James MACKLIN et al., Plaintiffs-Appellants, v. Albert BUTLER et al., Defendants-Appellees.

No. 76-1581.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 11, 1977.

Decided April 15, 1977.

Perry H. Harrold, Indianapolis, Ind., for plaintiffs-appellants.

Charles R. Isenberg, Louisville, Ky., William C. Moyer, New Albany, Ind., for defendants-appellees.

Albert R. Butler, pro se.

Jesse L. Carter, Indianapolis, Ind., for defendants-appellees.

Before FAIRCHILD, Chief Judge, and SWYGERT and PELL, Circuit Judges.

PER CURIAM.

The district court's judgment of April 2, 1976, dismissed appellants' complaint as against appellees Taylor and Local 481 of the International Brotherhood of Electrical Workers (the Union) for failure to join indispensable parties, and granted summary judgment in favor of appellees Butler, Carter, and the Indianapolis Plan for Equal Employment, Inc. (the Plan). The complaint proceeded on numerous theories with respect to the various defendants-appellees, charging, in essence, racial discrimination on the part of each of them and in concert in the operation of the Plan, which, as pertinent here, is a program to bring increased numbers of minority employees into skilled trades in the electrical construction industry. Little purpose would be served by a fuller statement of facts and legal theories involved; reference will be made hereinafter to those of particular importance in the resolution of this appeal.

I

With respect to the entry of summary judgment in favor of appellees Carter, Butler, and the Plan, we note that this is one of those troublesome cases in which an appeal follows a disposition occurring by way of procedures amounting to something less than a full trial and which, upon consideration of the briefs, oral argument, and record, presents serious procedural questions in a record situation wherein further attention at the trial court level with rectification of any procedural errors conceivably could be followed by the same result as before in the litigation. Nevertheless, bearing in mind the words of Mr. Justice Frankfurter that fairness of procedure is due process in the primary sense, Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (concurring opinion), we address ourselves to the issues raised upon this appeal to determine whether a reversal is required.

Appellants' first objection is that the record contains no motion for summary judgment. We disagree. It is clear that pleadings may incorporate earlier pleadings by reference, Fed.R.Civ.P. 10(c), and that is what has happened here. On February 14, 1975, Butler and Carter filed a "Motion to Dismiss" appellants first (later twice amended) complaint. The concluding portion of that motion was captioned "Prayer and Alternative Motion," the alternative motion being for summary judgment. No affidavits were attached, although a supporting memorandum, not sworn nor in affidavit form, made factual assertions and had twelve exhibits attached. ¹ Appellants' subsequent amendments to their complaint mooted the February 14 motions, but Butler's November 5, 1975, "Motion to Dismiss" the second amended complaint reiterated, reasserted, realleged, and incorporated therein by reference each of the allegations and defenses set out in the original motion to dismiss and supporting memorandum. No exhibits or affidavits were attached to the November 5 motion. The memorandum supporting it was cast entirely in terms of the complaint's failure to state a relievable claim. There was no assertion in the motion or memorandum that material facts were not genuinely disputed; and the words "summary judgment" did not appear on either document. Carter and the Plan filed a "Motion to Dismiss" on December 4, 1975, which incorporated and alleged on their behalf all of the answers and defenses contained in Butler's November 5 motion. Like Butler's November 5 submissions, the December 4 motion was devoid of indications within the "four corners" that it was offered as a summary judgment motion. Nonetheless, on the narrow question of whether such motions on behalf of Carter, Butler, and the Plan were properly before the district court, we believe the incorporations by reference were sufficient to accomplish that result. Even if it were otherwise, appellees' submission, on March 18, 1976, of matters outside the pleadings (affidavits), not excluded by the district court, would in effect have converted the motions to dismiss into motions for summary judgment. Fed.R.Civ.P. 12(b).

Appellants' next and related argument is that they did not have adequate notice that the district court intended to rule on the appellees' motions as motions for summary judgment and that they did not receive a fair opportunity to establish the existence of material controverted facts. We agree. Once a summary judgment motion is made and properly supported, the adverse party may not rest on the mere allegations of his pleading, but must " set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). We think it obvious that this rule contemplates both fair notice that a summary judgment motion has been made and a reasonable opportunity to respond to the moving party's supporting materials. Appellants did not make any submissions setting forth specific controverted and material facts, and the district court ruled without the benefit of any such submissions which they could have (and which they represent here that they would have) made if a fair chance therefor had been given. ² This was error.

Prior to appellees' March 18, 1976, filing of 127 pages of affidavits and supporting documents, appellants did not have fair notice of the pendency of a motion for summary judgment. As we have seen, neither of the motions on which the district court acted made any express reference to summary judgment. ³ Prior to March 18, no affidavits in support of such a motion had ever been filed in proper form. See note 1 supra. Of course, Rule 56 allows the district court to consider pleadings, depositions, answers to interrogatories, and admissions on file with the court; and we do not doubt that summary judgment could be properly granted on such materials, in a proper case, although no affidavits were submitted. But in such cases, where matters which are filed with the court without regard to the pendency of a summary judgment motion are used to sustain such a motion, there is a real danger of unfair surprise if special precautions are not undertaken to insure a reasonable opportunity to respond. See Citizens National Trust and Savings Bank of Riverside v. Munson Equipment, 24 F.R.D. 193, 196-97 (S.D.Cal.1959).

The situation is closely analogous to that which is presented when a motion to dismiss for failure to state a relievable claim is converted into a summary judgment motion by the submission of matters outside the pleadings. In that circumstance, Fed.R.Civ.P. 12(b) expressly requires that "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." As the Second Circuit has held,

It seems fair to include within the term "reasonable opportunity" some indication by the court to "all parties" that it is treating the 12(b)(6) motion as a motion for summary judgment. (Citations omitted.) Here, the district judge gave no indication that he was going to consider anything but the pleadings, plaintiff filed no counter-affidavit, and the factual issue (in the case) was resolved against her on defendants' affidavits alone. This was error. (Footnote omitted.)

Dale v. Hahn, 440 F.2d 633, 638 (2d Cir. 1971). No such notice was given here, and even if we assume that the March 18, 1976, filing of appellees' affidavits put appellants on adequate notice that a summary judgment motion was actively pending, no reasonable opportunity to respond was given.

The district court's judgment was entered on April 2, 1976, only fifteen days after the filing date of the affidavits. Indeed the time may have been narrower than that. The affidavit of Butler to which were attached numerous exhibits bears a file mark date of March 19. The brief of appellants asserts that the "affidavits, as attached certificates of service reveal, were mailed to counsel for Plaintiffs-Appellants after March 18, 1976." We find nothing in the record to indicate the incorrectness of this assertion. Although under Rule 5(b), Fed.R.Civ.P., service by mail is complete upon mailing, inasmuch as March 18 was a Thursday, it appears reasonably probable that the appellants did not have actual notice of the filing until March 22. The judgment entered on Thursday of the following week being in the form of a comprehensive 32-page document would seem fairly to support the inference that its preparation had been commenced no later than during the first part of the week immediately following the week in which the appellants were actually aware of the filing of the affidavits. Even if the full time from March 18 to April 2 were involved, however, we do not in the circumstances of this case believe that appellants received a fair chance to attempt to make their case against summary judgment.

The early resolution of factually unsupported claims is a salutary purpose of summary...