Mustang Fuel Corp. v. Youngstown Sheet and Tube Co., No. 72-1334.
| Decision Date | 12 June 1973 |
| Docket Number | No. 72-1334. |
| Citation | 480 F.2d 607 |
| Parties | MUSTANG FUEL CORP., a corporation, Plaintiff-Appellant, v. YOUNGSTOWN SHEET AND TUBE COMPANY, an Ohio corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ed Abel, Oklahoma City, Okla., for plaintiff-appellant.
Calvin W. Hendrickson, Oklahoma City, Okla., for defendant-appellee.
Before HILL and BARRETT, Circuit Judges, and SMITH,* District Judge.
Without going into a detailed statement of facts or background in this appeal, the case presents a single issue. Does a trial court have jurisdiction to grant a summary judgment under Rule 56, F.R.Civ.P., if paragraph (c) of the Rule has not been complied with? The pertinent part of the Rule provides:
The motion for summary judgment in this case was filed by defendant-appellee on December 29, 1971, and on December 30, 1971, without notice being given or the holding of a hearing, the trial judge sustained the motion and entered a judgment accordingly.
It is correct, as argued by appellee, that subsequent to the granting of the motion the court held a hearing on a motion for a new trial. From this fact appellee argues, in effect, that the hearing and notice requirements of the Rule were met. We do not agree. The failure to follow the mandates of the Rule with respect to notice and hearing has been variously described by other Circuits in overturning summary judgment orders entered without first complying with the time mandate of Rule 56(c).1 The failure of the trial court to comply with the hearing and notice requirements of the Rule is error, and deprives the court of authority to enter a summary judgment order. Under proper circumstances these requirements of the Rule may be waived. The procedural facts presented here do not, however, constitute such a waiver.
Without here attempting to express any opinion upon the merits of the motion for summary judgment, we set aside the judgment appealed from and remand the case for further proceedings.
* Of the Eastern District of Michigan, sitting by designation.
1 Georgia Southern & Fla. Ry. Co. v. Atlantic Coast Line R.R. Co., 373 F.2d 493, 497 (5th Cir. 1967), cert. denied, 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120, ". . . abuse of discretion to grant summary judgment without proper notice and...
To continue reading
Request your trial
-
Dry Creek Lodge, Inc. v. U.S.
...supra, § 2950 at 490-91.14 See Adams v. Campbell County School Dist., 483 F.2d 1351 (10th Cir. 1973); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 480 F.2d 607 (10th Cir. 1973); Santiago v. Corporacion de Renovacion Urbana, 453 F.2d 794 (1st Cir. 1972); Georgia Southern & F. Ry. Co. v......
-
Management Investors v. United Mine Workers of America
...v. Lehman, 252 F.2d 366 (6th Cir. 1958); Ailshire v. Darnell, 508 F.2d 526, 528 (8th Cir. 1974); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 480 F.2d 607 (10th Cir. 1973); Georgia Southern & Florida Ry. v. Atlantic Coast Line R. R., 373 F.2d 493 (5th Cir.), Cert. denied, 389 U.S. 851......
-
Purser v. Corpus Christi State Nat. Bank
...in less than ten days. See Adams v. Campbell County School District, 483 F.2d 1351 (10 Cir., 1973); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 480 F.2d 607 (10 Cir., 1973). See also, Bowdidge v. Lehman, 252 F.2d 366 (6 Cir., 1958); Enoch v. Sisson, 301 F.2d 125 (5 Cir., 1962). We ha......
-
Spence v. Latting, 74-1288
...requirement in Rule 56(c) "deprives the court of authority to enter a summary judgment order." See Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 480 F.2d 607, 608 (10th Cir. 1973); Adams v. Campbell County School District, 483 F.2d 1351 (10th Cir. 1973). In Mustang, however, we indicat......