Scott v. Courtesy Inns, Inc., 72-3121 Summary Calendar.
| Decision Date | 31 January 1973 |
| Docket Number | No. 72-3121 Summary Calendar.,72-3121 Summary Calendar. |
| Citation | 472 F.2d 563 |
| Parties | Mrs. Daisy SCOTT et al., Plaintiffs-Appellants, v. COURTESY INNS, INC. d/b/a Heidelberg Hotel, Jackson, Mississippi, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jack H. Young, Jr., Melvyn R. Leventhal, Nausead Stewart, Jackson, Miss., for plaintiffs-appellants.
L. Arnold Pyle, Jackson, Miss. for defendant-appellee.
Before THORNBERRY, DYER and INGRAHAM, Circuit Judges.
This is an appeal from an order of the district court granting summary judgment for appellee Heidelberg Hotel and suppressing appellant's interrogatories. Appellant brought the suit as a class action, alleging employment discrimination under the 1964 Civil Rights Act. Appellee moved to suppress appellant's interrogatories, claiming in the most general of terms that the interrogatories as a whole were "oppressive" and "unduly burdensome" and that they sought "immaterial" information. Appellee also moved to dismiss appellant's suit on the grounds that it was not properly maintainable as a class action and that appellant had failed to state a claim upon which relief could be granted. Appellee transmitted to the district judge (but apparently never caused to be formally filed) a memorandum in support of its motion to dismiss, supported by affidavits. Nowhere in these documents, nor at any later stage, did appellee move for summary judgment or request that its motion to dismiss be treated as a motion for summary judgment.
More than sixty days after appellee transmitted its memorandum and affidavits to the district judge, a hearing was held on the motion to dismiss, and the district judge, for the first time, announced that he intended to treat the motion as one for summary judgment. Appellant's request for additional time to file opposing affidavits was denied on the ground that more than sixty days had elapsed since appellee's transmittal of its memorandum and affidavits. The district court thereupon granted summary judgment for appellee and suppressed appellant's interrogatories.
As our opinion in Gutierrez v. El Paso Community Action Program, 5th Cir. 1972, 462 F.2d 121, makes clear, the district judge erred in treating appellee's motion to dismiss as a motion for summary judgment without first giving appellant the ten days' notice required by Rule 56, F.R.Civ.P. Furthermore, it was error to base the suppression of appellant's interrogatories upon appellee's vague and conclusory...
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...The parties are entitled to notice that the motion to dismiss is being treated as a summary judgment motion. Scott v. Courtesy Inns, Inc., 472 F.2d 563 (5th Cir. 1973) (the court should give parties at least the ten days' notice required before hearing by rule 56(c)); Gould, Inc. v. Chafee,......
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Jones v. Automobile Ins. Co. of Hartford, Conn.
...instances where a motion to dismiss is treated as a motion for summary judgment by the district court."). See also Scott v. Courtesy Inns, Inc., 472 F.2d 563 (5th Cir.1973); Gutierrez v. El Paso Community Action Program, 462 F.2d 121 (5th Cir.1972).The ten-day notice requirement of Rule 56 ......
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Clark v. Tarrant County, Tex.
...F.2d 169 (5th Cir.1980); Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir.1979). Appellants, citing our decision in Scott v. Courtesy Inns, Inc., 472 F.2d 563 (5th Cir.1973), argue that summary judgment for Tarrant County was improper in this case because the district court did not give ten ......
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