Sequoia Union High School Dist. v. United States
Decision Date | 05 June 1957 |
Docket Number | No. 15341.,15341. |
Citation | 245 F.2d 227 |
Parties | SEQUOIA UNION HIGH SCHOOL DISTRICT, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Keith C. Sorenson, Dist. Atty., Howard E. Gawthrop, Deputy Dist. Atty., County of San Mateo, Cal., Redwood City, Cal., for appellant.
Perry W. Morton, Asst. Atty. Gen., Harold S. Harrison, Roger P. Marquis, Attys., Dept. of Justice, Washington, D. C., Lloyd H. Burke, U. S. Atty., Robert N. Ensign, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before MATHEWS, CHAMBERS and BARNES, Circuit Judges.
This appeal is from a summary judgment in favor of appellee, the United States, in a civil action wherein appellee was plaintiff, and appellant, Sequoia Union High School District, was defendant.
Summary judgments are provided for in Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The pertinent provisions of Rule 56 are as follows:
Appellee was a party seeking to recover upon a claim, but no motion for a summary judgment was ever served by appellee.
The only pleadings in this case were appellee's complaint and appellant's answer. No reply was required or permitted.1 The complaint was filed on February 4, 1955. The answer was filed on March 30, 1955. The complaint contained material allegations which the answer denied. The answer contained material allegations which, though not expressly denied, were taken as denied or avoided.2
On March 22, 1956, appellee requested certain admissions of appellant.3 On March 30, 1956, and April 18, 1956, appellant made some of the admissions so requested, but never admitted those allegations of the complaint which the answer denied. On April 12, 1956, appellant requested certain admissions of appellee. On April 19, 1956, and April 30, 1956, appellee made some of the admissions so requested, but never admitted those allegations of the answer which were taken as denied or avoided.
On April 19, 1956, appellee served on appellant's attorneys the following notice:
Obviously, that notice was not a motion. It did not state a motion or any ground for a motion, nor was it a notice of the hearing of a motion.5 It was merely a notice that appellee would move for a summary judgment on April 30, 1956. Actually, appellee did not so move on April 30, 1956, or at any other time.
On June 14, 1956, appellee and appellant filed the following stipulation:
Actually, there was no pre-trial conference. No motion for a summary judgment was "offered for submission" on June 13, 1956, or at any other time.
We reject the suggestion that appellee may have moved orally for a summary judgment. A motion for a summary judgment has to be served.8 Hence it has to be in writing. Oral motions for summary judgments in Federal courts are not authorized or provided for in Rule 56 or elsewhere.
There being no motion for a summary judgment, there were no supporting or opposing affidavits. One deposition — that of Clyde L. Ogden, a witness for appellee — was filed on July 19, 1956. The judgment was entered on August 2, 1956.
That no motion for a summary judgment was ever served by appellee is a sufficient reason for reversing the judgment. However, even if such a motion had been served by appellee, the judgment would have to be reversed for the following reasons:
In granting the judgment, the District Court did not state, nor was it true, that the pleadings, deposition and admissions on file showed that there was no genuine issue as to any material fact.9 Therefore, instead of a summary judgment, there should have...
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...particularity the grounds therefor, and shall set forth the relief or order sought. * * *" (see generally, Sequoia Union High School Dist. v. United States, 9 Cir., 1957, 245 F.2d 227); in addition, since the motion was subsequent to answer, Rule 14(a) required that the motion be made on no......
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