Berkovitz v. Home Box Office, Inc.

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-2335

DONALD M. BERKOVITZ, ET AL.,

Plaintiffs, Appellants,

v.

HOME BOX OFFICE, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

Joseph L. Kociubes, with whom Peter J. Mancusi and Bingham,

Dana & Gould were on brief, for appellants.

Kim J. Landsman, with whom Carin G. Reynolds, Patterson,

Belknap, Webb & Tyler LLP, Andrea J. Pollack, Cornelius J.

Moynihan, Jr., and Peabody & Brown were on brief, for appellee

Home Box Office, Inc.
Cornelius J. Moynihan, Jr., with whom Peabody & Brown,

Joseph J. Santora, Leonard F. Lesser, and Schneck Weltman

Hashmall & Mischel LLP, were on brief, for appellees Viacom

International, Inc. and MTV Networks.

July 22, 1996

SELYA, Circuit Judge. In this appeal, plaintiff-
SELYA, Circuit Judge.

appellant Donald M. Berkovitz challenges the district court's

spontaneous entry of judgment in favor of the defendants Home Box

Office, Inc. (HBO) and Viacom International, Inc. (Viacom).1

Although we applaud the district court's innovative case

management and its Briarean efforts to refine the issues for

trial, we believe that in one crucial respect the court went

awry. Consequently, we vacate the judgment and remand for

further proceedings.

I. FACTUAL PREDICATE
I. FACTUAL PREDICATE

We frame the facts in the aspect most beneficial to the

party against whom the district court entered judgment,

consistent with record support. See, e.g., Quaker State Oil

Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1513 (1st Cir.

1989).

In early 1984, Berkovitz hit upon an idea for a cable

television channel. He dubbed this concept "The Entertainment

Network" (or, for short, "the TEN plan"). The concept envisioned

a round-the-clock commercial television channel highlighting

lesser-known musical and comedic acts supplemented by talk shows,

movies, and other staples. The concept embodied interactive

features through which the viewing audience could participate in

1We omit particularized reference to two parties who
necessarily stand or fall with parties whom we have already
mentioned. The omitted parties are plaintiff KDK, Inc. (an
inactive corporation controlled by Berkovitz) and defendant MTV
Networks (a wholly-owned subsidiary of Viacom). Notwithstanding
this exercise of literary license, our opinion is binding upon
all the litigants.

2

contests and offer programming suggestions telephonically.

In February 1985, Berkovitz offered a copy of the TEN

plan to an HBO vice president, Larry Carlson, who accepted the

offer. He then sent the document (which, like all other copies

of the TEN plan mentioned herein, bore the legend "confidential"

on its cover page) to Carlson. Approximately three months later,

HBO disclaimed any interest and returned the submission (although

Berkovitz intimates that HBO retained a copy). In July 1987,

Berkovitz attempted to interest Viacom in the TEN plan. The

chairman's secretary suggested that he forward a copy to Viacom.

He claims to have done so (on the express condition that the

submission was "for [the chairman's] eyes only." He also claims

to have furnished extra copies at Viacom's request and to have

met with an MTV vice-president, Lee Masters, anent the proposal.

Although Masters "raved" about certain aspects of the plan, the

meeting came to naught.

Little daunted, Berkovitz resumed his courtship of HBO.

During the fall of 1987 he met with Carlson, who, Berkovitz

maintains, perused the TEN plan, praised it, agreed to keep its

contents in confidence, and led him to believe that HBO would

help launch the new enterprise and share the fruits with him.

Despite these encomia, and several subsequent telephone

conversations in the same vein, HBO never followed through.2

2Not surprisingly, Carlson disputes this account. He
testified during a deposition that he found both Berkovitz and
the TEN plan lacking in focus; hence, he refrained from making
any commitments.

3

HBO inaugurated "The Comedy Channel" in November of

1989. Viacom shortly followed suit with "Ha! The Comedy

Network." Late in 1990 the two merged to become "Comedy

Central." Berkovitz insists that these offerings all drew their

inspiration from the TEN plan, and that they did so in blatant

disregard of his proprietary rights.

II. TRAVEL OF THE CASE
II. TRAVEL OF THE CASE

The procedural aspects of this litigation are of

decretory significance. We divide our account into two parts.

A. Initial Proceedings.
A. Initial Proceedings.

Invoking diversity jurisdiction, 28 U.S.C. 1332,

Berkovitz filed suit in federal district court on January 28,

1991. Judge Skinner drew the case. In the complaint, the

plaintiff alleged that HBO and Viacom pirated his concept without

compensating him, unjustly enriched themselves at his expense,

breached implied-in-fact contracts to pay him if they used the

TEN plan to productive ends, and committed unfair trade

practices. The defendants denied these allegations.

The novelty (or lack thereof) of the TEN plan and its

constituent elements soon became a protuberant bone of

contention. The defendants, positing that New York's substantive

law governed, maintained that Berkovitz had to prove the novelty

of his idea in order to recover under any actionable theory of

the case. Berkovitz, positing that the substantive law of

Massachusetts governed, attempted to parry this thrust on two

levels: he asserted both that his idea was in fact novel, and

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that in all events a plaintiff whose idea was misappropriated in

contravention of an implied-in-fact contract need not prove

novelty in order to recover.

In time, the defendants moved for summary judgment.

Judge Skinner considered the parties' arguments and reserved

decision. In a rescript dated May 18, 1994, he held (1) that

Massachusetts law supplies the rule of decision, (2) that

Massachusetts does not require a showing of novelty when the

plaintiff alleges the existence of a contractual relationship,

and (3) that the defendants' motions for summary judgment should

therefore be denied on all but the unfair trade practices claim.

The court entered an appropriate order.

B. The Pretrial Conferences.
B. The Pretrial Conferences.

After Judge Skinner elected senior status, many of his

cases were redrawn. Judge Keeton assumed responsibility for this

case in mid-1994. Although the defendants moved for

reconsideration of the earlier denial of brevis disposition,

Judge Keeton did not act upon these motions. He instead convened

a series of pretrial conferences in a commendable effort to bring

matters to a head. During the last four conferences (all of

which took place in 1995), the judge concentrated on clarifying

and delimiting the issues to be tried. Because the events that

transpired at these conferences shed considerable light on this

appeal, we set out a brief chronology.

1. The March 21 Conference. The first of the four
1. The March 21 Conference.

conferences focused primarily on the parties' agreement to

5

bifurcate the trial, separating the issues of liability and

damages. But Judge Keeton also seized this opportunity to

instruct the parties to spell out their legal theories (avoiding

forensic jargon), and directed them to develop a verdict form

suitable for submission to a jury.3

2. The April 27 Conference. At the next conference
2. The April 27 Conference.

the parties wrangled over a proposed verdict form. The debate

led Judge Keeton to remark that "we're going to have to get

specific" about what elements of the TEN plan were "substantially

used" by the defendants. The judge explained that this degree of

particularization would assist in "structuring the claims and

defenses so that I can understand them, so the jury can

understand them, [and] so that [the litigants] can understand

each other."

3. The June 1 Conference. At the third conference the
3. The June 1 Conference.

judge cautioned that he would not allow the jury to consider "a

fuzzy claim" and urged the plaintiff's lawyer to "communicat[e]

to me clearly . . . your legal and factual theory." After some

additional discourse (during which the defendants unsuccessfully

sought leave to file fresh motions for summary judgment),

plaintiff's counsel reformulated his position. He pledged that

3In the course of this conference, plaintiff's lead counsel
made his first attempt to spell out his implied contract theory.
He suggested that there are several elements: "one is, did Mr.
Berkovitz come up with the idea? . . . Two, did he submit it to
the defendants? Three is, did they use it? . . . Four is, did
he submit it . . . to them in a context in which one can imply a
promise to pay for it if they use it? . . . And then if [the
jurors] answer all of those correctly, I would say under that one
theory of the case, then you go to damages . . . ."

6

he would prove (1) an implied agreement between Berkovitz and

each of the defendants for confidential disclosure of the TEN

plan, and (2) the defendants' appropriation of the plan in

derogation of this agreement. The court reiterated its concern

that this reformulation did not enumerate which elements of the

plan were novel and which were used by the defendants. In

addition, the court asked the plaintiff to list the legal

elements of his implied-in-fact contract claim, and plaintiff's

counsel agreed to try again.

4. The July 18 Conference. The plaintiff's outright
4. The July 18 Conference.

abandonment of any cause of action based on the putative novelty

of any of the elements contained in the TEN plan dominated the

early stages of the final conference. Novelty aside, the defense

maintained that the plaintiff still had not specified the

elements of his remaining implied contract claim.4 The court

reaffirmed its desire that Berkovitz state his cause of action

with particularity. Noting that Berkovitz's proposed jury

instructions, if given, would require the jury to find that HBO

and/or Viacom made "substantial use" of the TEN plan, the court

asked Berkovitz to specify what this portended.

More discussion ensued, but the judge remained

dissatisfied; he reminded Berkovitz's counsel that he had the

4Following the parties' lead, we use "implied contract" and
words of like import as a rubric to cover not only plaintiff's
implied contract claim but also his embedded claim for breach of
fiduciary duty. Both claims have a common denominator: they
require proof of an agreement or duty to hold Berkovitz's idea in
confidence, and to compensate him for its unauthorized use.

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authority to require a plaintiff to state with particularity the

theory underpinning his claim, and warned that he might dismiss

the case because Berkovitz had failed to comply with the

particularization orders. The defendants moved orally for

summary judgment on the ground that all the elements of the TEN

plan were in the public domain. The court expressed no interest

in strolling down this road, and the oral motions languished.

In a last-ditch effort to satisfy the court's demands,

Berkovitz's attorney again attempted to articulate his theory of

the case. The lawyer delineated what he termed Berkovitz's

position "from day one": Berkovitz gave the defendants copies of

the TEN plan under circumstances in which a reasonable person

would expect compensation if they (or either of them) used his

work product. Thus, if a defendant had made some beneficial use

of some part of that document, Berkovitz would be entitled to

relief. The court described this iteration of Berkovitz's theory

as postulating an "all factors" approach because it did not

differentiate among the elements of the TEN plan (e.g., it did

not single out which elements the plaintiff claimed had been

misappropriated and used). After expressing its belief that the

approach probably was "incorrect as a matter of law," the court

entered an interlocutory judgment for the defendants but gave

Berkovitz "time for filing something more."

5. The Court's Final Order. Berkovitz who
5. The Court's Final Order.

apparently believed that the court had entered the interlocutory

judgment either as a sanction for failure adequately to

8

particularize his claim or because it found the "all factors"

approach legally infirm moved for reconsideration. The court

denied the motion and entered final judgment. See Berkovitz v.

HBO, 1995 WL 791939, at *10 (D. Mass. Oct. 23, 1995). In this

order the court clarified the basis on which the judgment rested;

in its view, Berkovitz's claim lacked factual grounding. See id.

at *5. Consequently, the court terminated the case on

substantive grounds. See id. at *9.

III. DISCUSSION
III. DISCUSSION

Our analysis proceeds in three steps. First, we

examine the lower court's final order and explain why we deem

that order to be a species of sua sponte summary judgment. Next,

we delineate the legal standards that pertain to such judgments.

Finally, we dispose of the appeal.

A. Characterizing the District Court's Final Order.
A. Characterizing the District Court's Final Order.

We find no fault with the judge's decision to convene a

series of pretrial conferences devoted largely to refining the

issues and ascertaining which issues were fit for the jury's

consumption. Federal district courts enjoy wide discretion in

their crafting of the pretrial process, see, e.g., Cleveland v.

Piper Aircraft Corp., 985 F.2d 1438, 1450 (10th Cir.), cert.

denied, 114 S. Ct. 291 (1993); Jensen v. Frank, 912 F.2d 517, 524

(1st Cir. 1990), and requiring parties to particularize claims or

defenses falls well within the compass of that discretion. In a

related vein, courts may use case management tools to advance the

important purpose of affording "the opposing party fair notice of

9

the claims asserted against him and the grounds on which those

claims rest." Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168,

1171 (1st Cir. 1995).

In this instance, the court made adroit use of its

powers and succeeded in winnowing the plaintiff's claims until

only one claim remained the implied contract claim premised on

the "all factors" approach. There are three possibilities that

might explain why the court entered judgment in the defendants'

favor on this last claim: (1) the claim may have depended upon a

flawed legal theory, or (2) it may have been stated too loosely

(in defiance of the court's particularization orders), or (3) it

may have lacked a sufficient evidentiary predicate. Though the

court criticized the "all factors" approach in various respects

at various times, careful perscrutation of the final order rules

out two of these possibilities. As to legal insufficiency, the

court stated that it had "[a]ssum[ed], without deciding, that

[the "all factors" approach upon which Berkovitz's implied

contract claim depends] is indeed a correct interpretation of the

law in Massachusetts." Berkovitz, supra, at *5. As to the

particularization orders, the court vouchsafed that the plaintiff

did not violate these orders by failing to furnish a more precise

statement of his implied contract claim. See id. at *9.

This leaves the third possibility: evidentiary

insufficiency. Unlike the other possibilities, that explanation

is strengthened by the language of the final order. The court

wrote "that the plaintiff has provided no evidence from which a

10

jury could decide . . . that in this case factual circumstances

supporting . . . a duty [of confidentiality] arose at some point

during the negotiations of the parties." Id. at *5. Along the

same lines, the court added that "[a] jury could not reasonably

find, on this evidence, that factual conditions prerequisite to a

contractual or fiduciary duty existed in this case." Id.

Consequently, Berkovitz's implied contract claim did not

"survive[] examination on the merits." Id. at *9.

We will not paint the lily. Since "the district

court speaks to us primarily through its decrees," Advanced Fin.

Corp. v. Isla Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir. 1984),

the final order itself is the most likely source of enlightenment

in our quest to understand its nature. Here, the order, fairly

read, discounts the other possibilities and disposes of the

plaintiff's implied contract claim on a substantive ground: lack

of evidence. Accordingly, we are constrained to characterize the

court's action as a spontaneous grant of summary judgment rather

than as a dismissal for either legal insufficiency or want of

compliance with case management orders.

B. Elucidating the Applicable Legal Standards.
B. Elucidating the Applicable Legal Standards.

It is apodictic that district courts have the power to

grant summary judgment sua sponte. See Celotex Corp. v. Catrett,

477 U.S. 317, 326 (1986); Stella v. Tewksbury, 4 F.3d 53, 55 (1st

Cir. 1993); Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555,

1560 (1st Cir. 1989). Properly deployed, that power can

complement the courts' case management authority. After all,

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pretrial conferences aid district courts in "the formulation and

simplification of the issues, including the elimination of

frivolous claims or defenses." Fed. R. Civ. P. 16(c)(1). Since

this process is designed to promote efficiency and conserve

judicial resources, see In re Two Appeals, 994 F.2d 956, 965 (1st

Cir. 1993), "[t]here is no reason to require that [the

elimination of non-trialworthy claims] await a formal motion for

summary judgment." Fed. R. Civ. P. 16(c)(1) advisory committee's

note to 1983 amendment; accord Aetna Cas. & Sur. Co. v. P & B

Autobody, 43 F.3d 1546, 1568 (1st Cir. 1994). Thus, when "the

pretrial conference discloses that no material facts are in

dispute and that the undisputed facts entitle one of the parties

to judgment as a matter of law," Portsmouth Square, Inc. v.

Shareholders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985),

the court may dispose of the entire case by granting summary

judgment sua sponte.5 See Capuano v. United States, 955 F.2d

1427, 1432 (11th Cir. 1992); Portsmouth Square, 770 F.2d at 869.

Though a district court may enter summary judgment sua

sponte at, or in consequence of, a pretrial conference, the court

must ensure that the targeted party has an adequate opportunity

to dodge the bullet. To this end, we have placed two conditions

on unbesought summary judgments. First, a district court

ordinarily may order summary judgment on its own initiative only

5A district court also may grant partial summary judgment
sua sponte, removing some (but fewer than all) of the parties'
claims or defenses from the case. See, e.g., Hubbard v. Parker,

994 F.2d 529, 530 (8th Cir. 1993); National Expo., Inc. v.

Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir. 1987).

12

when discovery is sufficiently advanced that the parties have

enjoyed a reasonable opportunity to glean the material facts.

See Stella, 4 F.3d at 55; Jardines Bacata, 878 F.2d at 1561.

Second, the court may enter summary judgment sua sponte only if

it first gives the targeted party appropriate notice and a chance

to present its evidence on the essential elements of the claim or

defense. See Celotex, 477 U.S. at 326; see also Jardines Bacata,

878 F.2d at 1561 ("`Notice' in this context means that the losing

party . . . received a fair opportunity to put its best foot

forward.").

These strictures are not peculiar to sua sponte summary

judgments, but, rather, mirror the general principles that govern

all motions for summary judgment. See Stella, 4 F.3d at 56

(noting that "it is well settled in this circuit that all summary

judgment proceedings, including those initiated by the district

judge, will be held to the standards enunciated in Rule 56

itself"); Quaker State, 884 F.2d at 1513 (explaining that the

district court's power to order summary judgment on its own

initiative must be exercised "according to the rigorous protocol

of Rule 56"). This means, of course, that a nisi prius court

must give the targeted party at least ten days within which to

proffer affidavits or other evidence in response to the court's

specific concerns. See Stella, 4 F.3d at 56.

Appellate review is equally unaffected by the

spontaneous nature of the trial court's action. As with any

other grant of summary judgment, the court of appeals affords

13

plenary review to a decision granting sua sponte summary

judgment, and reads the record in the light most hospitable to

the targeted party. See Quaker State, 884 F.2d at 1513.

C. Applying the Standards.
C. Applying the Standards.

These standards inform the disposition of this appeal.

Having scoured the record, we believe that the district court

failed to give the plaintiff adequate notice of the basis for the

action that the court ultimately took, and that, therefore, the

judgment cannot stand. We explain briefly.

When a court charts a procedural route, lawyers and

litigants are entitled to rely on it. A court cannot alter its

bearings mid-course without signalling the impending change to

the parties. See Foster-Miller, Inc. v. Babcock & Wilcox, 46

F.3d 138, 148-49 (1st Cir. 1995) (pointing out that this

principle is especially pertinent "[w]hen judges elect on their

own initiative to use innovative methods in an effort to

accelerate the progress of a case"); Stella, 4 F.3d at 55-56

(applying this principle to a sua sponte summary judgment).

Here, the judge obviously understood the rule, see Berkovitz,

supra, at *2 (acknowledging the court's obligation to afford "an

opportunity for counsel opposing the judgment to proffer all

relevant and admissible evidence"), and apparently thought that

he had honored it. See id. at *1 (describing the particularity-

of-claim orders as requiring Berkovitz "to proffer admissible

evidence sufficient to support the findings necessary to satisfy

the elements of [his] legal theory"); id. at *5 (stating that

14

Berkovitz was "given an opportunity to proffer any additional

evidence that might be material"). Yet the record simply does

not bear out the court's recollection.

One part of the problem relates to the particularity-

of-claim orders. The court did not reduce those orders to

writing, but delivered them ora sponte at the pretrial

conferences that we have chronicled. Nonetheless, the

conferences took place in the presence of a court reporter and

transcripts now have been prepared.6 Whatever the court's

intentions, its transcribed words do not require the plaintiff to

proffer evidence of the existence of the implied contracts.

Another part of the problem is that the district court

appears to have changed course without giving the targeted party

sufficient forewarning. When the court informed the plaintiff at

the penultimate (June 1) conference that it might enter an

adverse judgment, it linked this possibility not to evidentiary

insufficiency but to the plaintiff's failure satisfactorily to

comply with the particularity-of-claim orders. See id. at *3.

At the last conference (July 18) the court reinforced this

linkage by discussing its entry of an interlocutory judgment in

tandem with its comments on the plaintiff's inability to

articulate avenues of legal relief beyond the "all factors"

approach. See, e.g., id. In its written opinion, however, the

6While the four conferences listed in our chronology were on
the record, the court convened at least one other conference
(November 21, 1994) for which no transcript has been supplied.
The clerk's notes on the docket sheet regarding this conference
are unilluminating.

15

court veered in a different direction. It explained that the

claim predicated on the "all factors" approach would not fly

because "the plaintiff has provided no evidence from which a jury

could decide, under any plausible interpretation of Massachusetts

cases, that in this case factual circumstances supporting such a

duty [of confidentiality] arose at some point during the

negotiations of the parties." Id. at *5 (emphasis supplied).

Prior to making this ruling, the court had neither informed

Berkovitz that it was considering a judgment based on evidentiary

insufficiency nor invited him to marshal and present his proof in

respect to the existence vel non of an implied contract.7 To

the contrary, the court's pre-ruling statements pointed in the

opposite direction. We cite two examples. At the June 1

conference plaintiff's counsel strove to embellish the elements

of his client's implied contract claim. The court interrupted

him, stating: "I don't want to talk about the proof at this

point. I just want to talk about the legal elements. . . ." The

second example is drawn from the July 18 semble; the court's

declaration on this occasion that the plaintiff's claim was

"incorrect as a matter of law" tended to render any proffer of

7We note that all parties initially seem to have assumed
that the trial court did not premise the sua sponte judgment on a
dearth of evidence. The plaintiff's motion for reconsideration
makes manifest Berkovitz's belief that the court defenestrated
the case either as a sanction or because the "all factors"
approach failed as a matter of law. By the same token, the
defendants' oppositions to that motion did not attempt to justify
the judgment on the ground that there were evidentiary
deficiencies related to the plaintiff's proof of one or more
contractual relationships.

16

evidence supporting that claim nugatory.

The question that confronts us is not whether the "all

factors" approach is (or is not) legally sound. Similarly, the

question is not whether there is (or is not) adequate evidence in

the record to defeat summary judgment on the "all factors"

approach. The question, rather, is whether the court gave the

plaintiff a meaningful opportunity to cull the best evidence

supporting his position, and to present that evidence, together

with developed legal argumentation, in opposition to the entry of

summary judgment. See Stella, 4 F.3d at 55; Bonilla v. Nazaro,

843 F.2d 34, 37 (1st Cir. 1988). On this record, we think that

the opportunity if one existed was too poorly defined.8

Nor are we comfortable shifting the blame for the

apparent miscommunication to the plaintiff. To be sure, this

court from time to time has refused to permit appellants to take

advantage of supposed oversights that had not been called to the

district court's attention by way of a timeous motion to

reconsider. See, e.g., United States v. Schaefer, F.3d ,

8There are four reasons why it is not a satisfactory answer
to suggest that the plaintiff had an opportunity to proffer this
evidence in connection with the defendants' original Rule 56
motions. First, the defendants forswore any reliance on the
insufficiency of such evidence when they filed those motions.
Second, Judge Skinner neither focused on nor purported to decide
whether the plaintiff could prove the existence of one or more
implied contracts, but, rather, assumed that the defendants had
entered into such contracts. Third, the contours of the case
thereafter changed dramatically, and Judge Keeton explicitly
declined to rule on the defendants' pending motions to reconsider
Judge Skinner's order. See Berkovitz, supra, at *3. Finally,

the defendants' reconsideration motions (like their original Rule
56 motions) also assumed the existence of the requisite
contractual relationship.

17

n.9 (1st Cir. 1996) [No.95-2342, slip op. at 19 n.9]; Grenier

v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995);

VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 4-5 (1st

Cir. 1993). But here, the plaintiff filed a motion to

reconsider, raising all the grounds that were apparent at the

time. It was not until the district court ruled on the

reconsideration motion that the spotlight suddenly swung to

evidentiary insufficiency. While the plaintiff theoretically

might have filed a second motion for reconsideration at that

time, the appeal period was running; and, moreover, we are

reluctant to fault a suitor who, like Berkovitz, chooses not to

ask a trial court more than once to reconsider an adverse

decision. Discretion, after all, is often the better part of

valor.

We need go no further. It may be that, in the final

analysis, the plaintiff cannot muster enough evidence to ward off

a properly advertised summary judgment but he is entitled to

make the attempt. Since the record fails to show that Berkovitz

had a meaningful opportunity to do so, the district court's sua

sponte entry of summary judgment cannot stand.

The judgment is vacated, and the case is remanded to
The judgment is vacated, and the case is remanded to

the district court for further proceedings consistent with this
the district court for further proceedings consistent with this

opinion. Costs in favor of the plaintiff.
opinion. Costs in favor of the plaintiff.

18