[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 30, 2007
No. 06-15636 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00667-CV-J-32-TEM
HAKIM ABDULLAH,
Plaintiff
Counter-Defendant
Appellant,
versus
CITY OF JACKSONVILLE,
C. RODGERS,
Badge No. 5804, in his personal capacity,
Defendants
Counter-Claimants,
Appellees,
I. E. BROWN,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 30, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Hakim Abdullah appeals the district court’s grant of summary judgment in
favor of the defendants, the City of Jacksonville and Jacksonville Sheriff’s Office
employees Officer Isaac Brown and Sergeant Clarence Rodgers, in his civil rights
action, filed pursuant to 42 U.S.C. §§ 1983 and 1985(3).
As a preliminary matter, Abdullah does not challenge the substantive basis
for the district court’s grant of summary judgment to the defendants. Therefore, he
has abandoned this issue on appeal. See Allison v. McGhan Med. Corp., 184 F.3d
1300, 1317 n.17 (11th Cir. 1999) (stating “[i]ssues that are not clearly outlined in
an appellant’s initial brief are deemed abandoned”). We address his alleged errors
in turn.
I.
Abdullah first contends the district court erred in ruling on the defendants’
motion for summary judgment because their motion to dismiss was still pending.
In addition, Abdullah asserts the district court “willfully and intentionally” did not
rule on the motion to dismiss. Moreover, Abdullah maintains because the
defendants did not file an answer to Abdullah’s complaint, they were barred from
obtaining summary judgment, and Abdullah was entitled to a default judgment.
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Abdullah’s assertion the district court did not rule on the defendants’ motion
to dismiss is incorrect. The district court denied the defendants’ motion to dismiss
as moot when it granted their motion for summary judgment. Abdullah points to
no authority indicating the district court’s denial of the defendants’ motion to
dismiss as moot was impermissible under the Federal Rules of Civil Procedure.
Moreover, as to Abdullah’s argument the defendants were required to file an
answer to his amended complaint, the defendants’ motion to dismiss was not acted
upon until the district court granted the defendants’ motion for summary judgment
and denied the motion to dismiss as moot. Accordingly, under the Federal Rules of
Civil Procedure, the defendants were not required to file an answer. See Fed. R.
Civ. P. 12(a)(4)(A); Lawhorn v. Atl. Ref. Co., 299 F.2d 353, 357 (5th Cir. 1962)1
(holding “[a]fter . . . a motion to dismiss for failure to state a claim is made, there is
no reason to file any other pleadings until the motion is acted upon”). Moreover,
Abdullah was not entitled to a default judgment because, although the defendants
did not file an answer to his amended complaint, they filed a motion to dismiss and
a motion for summary judgment, setting forth all their affirmative defenses and
submitting evidence in support of their defenses. Therefore, the defendants
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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defended Abdullah’s action against them. See Fed. R. Civ. P. 55(a) (stating when a
defendant has failed to plead or otherwise defend the action, the clerk shall enter a
default judgment against the defendant).
Accordingly, the district court did not err in granting summary judgment to
the defendants before an answer was filed. See Vencor Hosp., Inc. v. Standard Life
& Acc. Ins. Co., 279 F.3d 1306, 1308 (11th Cir. 2002) (stating a district court’s
interpretation of the Federal Rules of Civil Procedure is subject to de novo review).
II.
Abdullah next asserts the district court erred in not issuing an order
announcing its decision to treat the defendants’ motion to dismiss as a motion for
summary judgment, in violation of Federal Rule of Civil Procedure 12(b).
Moreover, Abdullah contends the district court did not advise him of his right to
file affidavits or other responsive material to the motion for summary judgment.
“Under Federal Rule of Civil Procedure 56(c), the non-moving party must
be given a 10-day advance notice that a summary judgment motion will be taken
under advisement.” Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1213 (11th
Cir. 1995). “Before a motion for summary judgment is granted, the pro se plaintiff
must be advised of his right to file counteraffidavits or other responsive material
and that he be alerted to the fact that his failure to so respond might result in the
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entry of summary judgment against him.” Moore v. Florida, 703 F.2d 516, 521
(11th Cir. 1983). Barring unique circumstances, the district court’s failure to give
proper summary judgment notice is reversible error. See Donaldson v. Clark, 819
F.2d 1551, 1555 n.3 (11th Cir. 1987) (en banc). A narrow, harmless-error
exception exists, however, if the non-moving party made all the arguments and
submitted all the evidence it would have presented had proper notice been given.
See Restigouche, Inc., 59 F.3d at 1213 (holding the district court’s failure to
comply with the 10-day notice rule was harmless error because, upon de novo
review of the record, we were “convinced that we have before us. . . all of the facts
and arguments that Restigouche would have or could have presented had
Restigouche been given the required notice”).
The defendants correctly note the district court did not convert the
defendants’ motion to dismiss into a motion for summary judgment. Rather, the
defendants filed a separate motion for summary judgment. Moreover, the district
court complied with the 10-day notice rule because, on February 8, 2006, it
informed the parties that it would review all motions, and it did not grant the
defendant’s motion for summary judgment until September 2006.
Although the district court did not expressly inform Abdullah of his right to
file affidavits or other responsive material in opposition to the defendants’ motion
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for summary judgment, the record reflects Abdullah understood he had a right to
present such evidence. For example, in response to the defendants’ motion for
summary judgment, Abdullah noted the non-moving party must go beyond the
pleadings and provide affidavits, depositions, answers to interrogatories, and
admissions on file to designate specific facts showing that there is a genuine issue
for trial. See Moore, 703 F.2d at 521. In addition, Abdullah filed with his
response to the defendants’ motion for summary judgment exhibits and affidavits,
evidencing his awareness of his right to submit evidence in opposition to the
motion. Thus, it is clear that Abdullah was aware of his right to file responsive
materials. Accordingly, we find no error. See Vencor, 279 F.3d at 1308.
III.
Abdullah next asserts the district court erred in depriving him of his right to
a hearing regarding the defendants’ summary judgment motion. We have held
[i]t is now well established that Rule 56 does not
necessarily contemplate an oral hearing. Rather, 10-day
advance notice to the adverse party that the motion and
all materials in support of or in opposition to the motion
will be taken under advisement by the trial court as of a
certain day satisfies the notice and hearing dictates of
Rule 56.
Moore, 703 F.2d at 519.
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Abdullah’s claim is without merit because we have held there is no right to a
hearing regarding a motion for summary judgment and, as discussed above, the
district court complied with the 10-day notice rule. See Vencor, 279 F.3d at 1308;
Moore, 703 F.2d at 519.
IV.
Abdullah also contends the district court lacked the authority to reverse its
scheduling order. We have held district courts have broad discretion in managing
their cases, including discovery and scheduling. Chrysler Int’l Corp. v. Chemaly,
280 F.3d 1358, 1360 (11th Cir. 2002).
The district court vacated its original scheduling order setting dates for the
pretrial conference and trial because there were numerous motions still pending
before it. Abdullah points to no authority holding that district courts lack the
power to vacate their own scheduling orders. This authority is encompassed within
the district court’s broad discretion to manage their caseloads. See Chemaly, 280
F.3d at 1360. Therefore, the district court did not abuse its discretion in vacating
its scheduling order. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234,
1243 (11th Cir. 2001) (stating we review pre-trial scheduling orders for an abuse of
discretion).
AFFIRMED.
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