Celotex Corp. v. Catrett, Administratrix of the Estate of Catrett

Justice Brennan,

with whom The Chief Justice and Justice Blackmun join, dissenting.

This case requires the Court to determine whether Celotex satisfied its initial burden of production in moving for summary judgment on the ground that the plaintiff lacked evidence to establish an essential element of her case at trial. I do not disagree with the Court’s legal analysis. The Court clearly rejects the ruling of the Court of Appeals that the defendant must provide affirmative evidence disproving the plaintiff’s case. Beyond this, however, the Court has not clearly explained what is required of a moving party seeking summary judgment on the ground that the nonmoving party cannot prove its case.1 This lack of clarity is unfortunate: district courts must routinely decide summary judgment motions, and the Court’s opinion will very likely create confusion. For this reason, even if I agreed with the Court’s result, I would have written separately to explain more clearly the law in this area. However, because I believe that Celo-tex did not meet its burden of production under Federal Rule of Civil Procedure 56, I respectfully dissent from the Court’s judgment.

*330I

Summary judgment is appropriate where the court is satisfied “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c). The burden of establishing the nonexistence of a “genuine issue” is on the party moving for summary judgment. 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2727, p. 121 (2d ed. 1983) (hereinafter Wright) (citing cases); 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice ¶ 56.15[3] (2d ed. 1985) (hereinafter Moore) (citing cases). See also, ante, at 323; ante, at 328 (White, J., concurring). This burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party. See 10A Wright § 2727. The court need not decide whether the moving party has satisfied its ultimate burden of persuasion2 unless and until the court finds that the moving party has discharged its initial *331burden of production. Adickes v. S. H. Kress & Co., 398 U. S. 144, 157-161 (1970); 1963 Advisory Committee’s Notes on Fed. Rule Civ. Proc. 56(e), 28 U. S. C. App., p. 626.

The burden of production imposed by Rule 56 requires the moving party to make a prima facie showing that it is entitled to summary judgment. 10A Wright § 2727. The manner in which this showing can be made depends upon which party will bear the burden of persuasion on the challenged claim at trial. If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence-using any of the materials specified in Rule 56(c)— that would entitle it to a directed verdict if not controverted at trial. Ibid. Such an affirmative showing shifts the burden of production to the party opposing the motion and requires that party either to produce evidentiary materials that demonstrate the existence of a “genuine issue” for trial or to submit an affidavit requesting additional time for discovery. Ibid.; Fed. Rules Civ. Proc. 56(e), (f).

If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56’s burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim. Second, the moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim. See 10A Wright § 2727, pp. 130-131; Louis, Federal Summary Judgment Doctrine: A Critical Analysis, 83 Yale L. J. 745, 750 (1974) (hereinafter Louis). If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. Anderson v. Liberty Lobby, Inc., ante, at 249.

Where the moving party adopts this second option and seeks summary judgment on the ground that the nonmoving party — who will bear the burden of persuasion at trial — has *332no evidence, the mechanics of discharging Rule 56’s burden of production are somewhat trickier. Plainly, a conclusory assertion that the nonmoving party has no evidence is insufficient. See ante, at 328 (White, J., concurring). Such a “burden” of production is no burden at all and would simply permit summary judgment procedure to be converted into a tool for harassment. See Louis 750-751. Rather, as the Court confirms, a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record. Ante, at 323. This may require the moving party to depose the nonmoving party’s witnesses or to establish the inadequacy of documentary evidence. If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions, interrogatories, and other exchanges between the parties that are in the record. Either way, however, the moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party.

If the moving party has not fully discharged this initial burden of production, its motion for summary judgment must be denied, and the court need not consider whether the moving party has met its ultimate burden of persuasion. Accordingly, the nonmoving party may defeat a motion for summary judgment that asserts that the nonmoving party has no evidence by calling the court’s attention to supporting evidence already in the record that was overlooked or ignored by the moving party. In that event, the moving party must respond by making an attempt to demonstrate the inadequacy of this evidence, for it is only by attacking all the record evidence allegedly supporting the nonmoving party that a party seeking summary judgment satisfies Rule 56’s burden of production.3 Thus, if the record disclosed that the moving *333party had overlooked a witness who would provide relevant testimony for the nonmoving party at trial, the court could not find that the moving party had discharged its initial burden of production unless the moving party sought to demonstrate the inadequacy of this witness’ testimony. Absent such a demonstration, summary judgment would have to be denied on the ground that the moving party had failed to meet its burden of production under Rule 56.

The result in Adickes v. S. H. Kress & Co., supra, is fully consistent with these principles. In that case, petitioner was refused service in respondent’s lunchroom and then was arrested for vagrancy by a local policeman as she left. Petitioner brought an action under 42 U. S. C. § 1983 claiming that the refusal of service and subsequent arrest were the product of a conspiracy between respondent and the police; as proof of this conspiracy, petitioner’s complaint alleged that the arresting officer was in respondent’s store at the time service was refused. Respondent subsequently moved for summary judgment on the ground that there was no actual evidence in the record from which a jury could draw an inference of conspiracy. In response, petitioner pointed to a statement from her own deposition and an unsworn statement by a Kress employee, both already in the record and both ignored by respondent, that the policeman who arrested petitioner was in the store at the time she was refused service. We agreed that “[i]f a policeman were present, ... it would be open to a jury, in light of the sequence that fol*334lowed, to infer from the circumstances that the policeman and Kress employee had a ‘meeting of the minds’ and thus reached an understanding that petitioner should be refused service.” 398 U. S., at 158. Consequently, we held that it was error to grant summary judgment “on the basis of this record” because respondent had “failed to fulfill its initial burden” of demonstrating that there was no evidence that there was a policeman in the store. Id., at 157-158.

The opinion in Adickes has sometimes been read to hold that summary judgment was inappropriate because the respondent had not submitted affirmative evidence to negate the possibility that there was a policeman in the store. See Brief for Respondent 20, n. 30 (citing cases). The Court of Appeals apparently read Adickes this way and therefore required Celotex to submit evidence establishing that plaintiff’s decedent had not been exposed to Celotex asbestos. I agree with the Court that this reading of Adickes was erroneous and that Celotex could seek summary judgment on the ground that plaintiff could not prove exposure to Celotex asbestos at trial. However, Celotex was still required to satisfy its initial burden of production.

HH HH

I do not read the Court s opinion to say anything inconsistent with or different than the preceding discussion. My disagreement with the Court concerns the application of these principles to the facts of this case.

Defendant Celotex sought summary judgment on the ground that plaintiff had “failed to produce” any evidence that her decedent had ever been exposed to Celotex asbestos.4 App. 170. Celotex supported this motion with a *335two-page “Statement of Material Facts as to Which There is No Genuine Issue” and a three-page “Memorandum of Points and Authorities” which asserted that the plaintiff had failed to identify any evidence in responding to two sets of interrogatories propounded by Celotex and that therefore the record was “totally devoid” of evidence to support plaintiff’s claim. See id., at 171-176.

Approximately three months earlier, Celotex had filed an essentially identical motion. Plaintiff responded to this earlier motion by producing three pieces of evidence which she claimed “[a]t the very least . . . demonstrate that there is a genuine factual dispute for trial,” id., at 143: (1) a letter from an insurance representative of another defendant describing asbestos products to which plaintiff’s decedent had been exposed, id., at 160; (2) a letter from T. R. Hoff, a former supervisor of decedent, describing asbestos products to which decedent had been exposed, id., at 162; and (3) a copy of decedent’s deposition from earlier workmen’s compensation proceedings, id., at 164. Plaintiff also apparently in*336dicated at that time that she intended to call Mr. Hoff as a witness at trial. Tr. of Oral Arg. 6-7, 27-29.

Celotex subsequently withdrew its first motion for summary judgment. See App. 167.5 However, as a result of this motion, when Celotex filed its second summary judgment motion, the record did contain evidence — including at least one witness — supporting plaintiff’s claim. Indeed, counsel for Celotex admitted to this Court at oral argument that Celotex was aware of this evidence and of plaintiff’s intention to call Mr. Hoff as a witness at trial when the second summary judgment motion was filed. Tr. of Oral Arg. 5-7. Moreover, plaintiff’s response to Celotex’ second motion pointed to this evidence — noting that it had already been provided to counsel for Celotex in connection with the first motion — and argued that Celotex had failed to “meet its burden of proving that there is no genuine factual dispute for trial.” App. 188.

On these facts, there is simply no question that Celotex failed to discharge its initial burden of production. Having chosen to base its motion on the argument that there was no evidence in the record to support plaintiff’s claim, Celotex was not free to ignore supporting evidence that the record clearly contained. Rather, Celotex was required, as an initial matter, to attack the adequacy of this evidence. Celotex’ failure to fulfill this simple requirement constituted a failure to discharge its initial burden of production under Rule 56, and thereby rendered summary judgment improper.6

*337This case is indistinguishable from Adickes. Here, as there, the defendant moved for summary judgment on the ground that the record contained no evidence to support an essential element of the plaintiff’s claim. Here, as there, the plaintiff responded by drawing the court’s attention to evidence that was already in the record and that had been ignored by the moving party. Consequently, here, as there, summary judgment should be denied on the ground that the moving party failed to satisfy its initial burden of production.7

It is also unclear what the Court of Appeals is supposed to do in this case on remand. Justice White — who has provided the Court’s fifth vote — plainly believes that the Court of Appeals should reevaluate whether the defendant met its initial burden of production. However, the decision to reverse rather than to vacate the judgment below implies that the Court of Appeals should assume that Celotex has met its initial burden of production and ask only whether the plaintiff responded adequately, and, if so, whether the defendant has met its ultimate burden of persuasion that no genuine issue exists for trial. Absent some clearer expression from the Court to the contrary, Justice White’s understanding would seem to be controlling. Cf. Marks v. United States, 430 U. S. 188, 193 (1977).

The burden of persuasion imposed on a moving party by Rule 56 is a stringent one. 6 Moore ¶56.15[3], p. 56-466; 10A Wright §2727, p. 124. Summary judgment should not be granted unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., ante, at 255, and any doubt as to the existence of a genuine issue for trial should be resolved against the moving party, Adickes v. S. H. Kress & Co., 398 U. S. 144, 158-159 (1970). In determining whether a moving party has met its burden of persuasion, the court is obliged to take account of the entire setting of the case and must consider all papers of record as well as any materials prepared for the motion. 10A Wright §2721, p. 44; see, e. g., Stepanischen v. Merchants Despatch Transportation Corp., 722 F. 2d 922, 930 (CA1 1983); Higgenbotham v. Ochsner Foundation Hospital, 607 F. 2d 653, 656 (CA5 1979). As explained by the Court of Appeals for the Third Circuit in In re Japanese Electronic Products Antitrust Litigation, 723 F. 2d 238 (1983), rev’d on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986), “[i]f. . . there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party’s] favor may be drawn, the moving party simply cannot obtain a summary judgment. . . .” 723 F. 2d, at 258.

Once the moving party has attacked whatever record evidence — if any — the nonmoving party purports to rely upon, the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evi*333dence attacked in the moving party’s papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f). See 10A Wright § 2727, pp. 138-143. Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial. See, e. g., First National Bank of Arizona v. Cities Service Co., 391 U. S. 253, 289 (1968).

Justice Stevens asserts that the District Court granted summary-judgment on the ground that the plaintiff had failed to show exposure in the District of Columbia. He contends that the judgment of the Court of Appeals reversing the District Court’s judgment should be affirmed on the “narrow ground” that it was “palpably erroneous” to grant summary judgment on this basis. Post, at 339 (dissenting). The Court replies that *335what the District Court said was that plaintiff had failed to show exposure in the District of Columbia “or elsewhere.” Ante, at 320, n. 2. In my view, it does not really matter which reading is correct in this case. For, contrary to Justice Stevens’ claim, deciding this case on the ground that Celotex failed to meet its burden of production under Rule 56 does not involve an “abstract exercise in Rule construction.” Post, at 339 (Stevens, J., dissenting). To the contrary, the principles governing a movant’s burden of proof are straightforward and well established, and deciding the case on this basis does not require a new construction of Rule 56 at all; it simply entails applying established law to the particular facts of this case. The choice to reverse because of “palpable erro[r]” with respect to the burden of a moving party under Rule 56 is thus no more “abstract” than the choice to reverse because of such error with respect to the elements of a tort claim. Indeed, given that the issue of the moving party’s burden under Rule 56 was the basis of the Court of Appeals’ decision, the question upon which certiorari was granted, and the issue briefed by the parties and argued to the Court, it would seem to be the preferable ground for deciding the case.

Celotex apparently withdrew this motion because, contrary to the assertion made in the first summary judgment motion, its second set of interrogatories had not been served on the plaintiff.

If the plaintiff had answered Celotex’ second set of interrogatories with the evidence in her response to the first summary judgment motion, and Celotex had ignored those interrogatories and based its second summary judgment motion on the first set of interrogatories only, Celotex obviously could not claim to have discharged its Rule 56 burden of production. This result should not be different simply because the evidence *337plaintiff relied upon to support her claim was acquired by Celotex other than in plaintiff’s answers to interrogatories.

Although .Justice White agrees that “if [plaintiff] has named a witness to support her claim, summary judgment should not be granted ■without Celotex somehow showing that the named witness’ possible testimony raises no genuine issue of material fact,” he would remand “[b]eeause the Court of Appeals found it unnecessary to address this aspect of the case.” Ante, at 328-329 (concurring). However, Celotex has admitted that plaintiff had disclosed her intent to call Mr. Hoff as a witness at trial before Celotex filed its second motion for summary judgment. Tr. of Oral Arg. 6-7. Under the circumstances, then, remanding is a waste of time.