concurring and dissenting:
While I concur in the judgment of the court as to Chief of Police Hayes, I respectfully dissent as to the judgment in favor of officer Bass.1
The majority opinion is plainly correct in its statement that the burden of responding to the defendants’ motions for summary judgment rests squarely on the plaintiff. Moreover, if the plaintiff was having trouble obtaining responsive affidavits as he claims,2 he should have so informed the court. Instead, he said nothing to anyone for two months after the motion for summary judgment was filed. Frankly put, the plaintiff may not be entirely without fault; nor may the procedural pitfall he has encountered have been unavoidable.
But even if the plaintiff did not do all that we might ideally expect of him, we should pursue the insistent inquiry: whether he did that which has been demanded of him by the Federal Rules of Civil Procedure and the local rules of the district court. It is on that issue that I depart from the majority.
Under FRCP 56(c), a party opposing a motion for summary judgment has until the day before the hearing on the motion to serve opposing affidavits, for such shall be done “prior to the day of hearing.” The majority dismisses any problems which arise from compliance with that procedure by observing that the plaintiff never moved for a hearing. But I submit that, because the plaintiff was on notice of the defendants’ request for a hearing on their motion, a similar motion by the plaintiff would have been superfluous to the protection of the plaintiff’s rights, and he should not be faulted for not having made it. Nothing in the Federal Rules of Civil Procedure or the local rules requires him to do so.
*868Thus, on September 13, 1976, the defendants filed with the district court a notice addressed to the attorney for the plaintiff, stating: “PLEASE TAKE NOTICE that the undersigned will bring the foregoing Motion To Dismiss and Motion For Summary Judgment on for hearing before a Judge of the United States District Court for the Eastern District of North Carolina at a time and place to be set by the Court for its convenience.” Under Local Rule 4(H) (see majority opinion, p. 5) a hearing would be held upon request of either party. Thus, there was no reason for the plaintiff at that time to request a hearing, and he had until the day before the prospective hearing to file a response to the defendants’ motion and affidavits.
However, as stated in the district court’s order, the defendants afterward represented to the court a “willingness to have the matter decided without oral argument.” It appears that this representation was made orally in an ex parte communication with the district court, initiated, we were told by the defendants at oral argument, by either a law clerk or the clerk’s office. The defendants have not controverted the plaintiff’s assertion that the plaintiff was given no notice of the withdrawal of the request for a hearing. Rather, the plaintiff first learned that no hearing would be held when he received the court order granting summary judgment to the defendants. Those matters stand as facts.
The defendants’ ex parte communication with the court, without notice given, either contemporaneously or immediately thereafter, to the opposing party concerning the substance of the communication, was an act calling for reversal when it substantially affected the substantive or procedural rights of the plaintiff and resulted in the dismissal of his claim. Either the court or the defendants should have notified the plaintiff, thereby affording him an opportunity to request a hearing under local rule 4(H). This duty, I believe, would lie especially heavy on the district court if it did in fact initiate the communication with the defendants, for it commented in its order, “Plaintiff has not responded in any fashion to this motion, and the time for doing so has long passed.” Until the defendants withdrew their request for a hearing, which they contend was initiated by the court, a hearing was to be held at some time in the future, and the time for filing countering affidavits could not have passed.
In conclusion, I believe the plaintiff had until the day before the hearing requested by the defendants to file a response to the motions for summary judgment. The rules demanded no more of him. Had the defendants, or the court, given notice of the withdrawal of the request for a hearing, and the plaintiff had then failed to either request a hearing or to file his response, he might have no complaint. But here he had no opportunity to take such action. One moment he had until the day before the hearing requested by the defendants to respond; the next, the withdrawal of the defendants’ request for a hearing having been accomplished without notice, he was served with a judgment against him and told that it was too late to respond. In view of the fact the plaintiff was so severely prejudiced by the failure to give notice of the ex parte communication withdrawing the request for a hearing, I see no open course but to reverse and remand to allow the plaintiff to present whatever material he may have to controvert the affidavits in support of defendants’ motion for summary judgment.3
. I dissent only to the judgment in favor of officer Bass. The plaintiffs attorney on oral argument candidly told us he no longer resisted the judgment in favor of Chief of Police Hayes which also rested on an alternate ground which was plainly right. I emphasize that my dissent should not be taken to imply any opinion on the merits of the case. I also emphasize that my dissent implies no culpability on the part of the district court. I think what happened was simply a good faith mistake.
. The plaintiff contends that witnesses which would support his claim would not give affidavits, but would testify if subpoenaed. The plaintiffs attorney specifically states that he talked to one of these who is a bellhop who was present at the scene and whose statement indicates that his testimony would refute the police officers’ affidavits. While the plaintiffs attorney tells us he contemplated requiring the bellhop to testify at the scheduled hearing, we do not need to pass upon whether or not the district court must allow that procedure, for it is certain the court can compel the bellhop’s testimony. See FRCP 56(f).
We are told by the defendants’ attorney that he did not talk to the bellhop.
. I note in passing that this may be a case for application of FRCP 56(f) which, under certain conditions, permits the court to refuse the application for judgment in order to obtain affidavits, or depositions, or discovery.
I do not think the case of United States Fidelity and Guaranty v. Lawrenson, 334 F.2d 464 (4th Cir. 1964), should be persuasive here. In that case, acting under a not too dissimilar rule, a district court in Maryland denied a frivolous motion for a new trial without the hearing demanded by the movant. It is at once apparent that the motion here was far from frivolous; it resulted in the dismissal of the claim; the denial of the hearing in Lawrenson had no bearing on the outcome of the case, while here the denial of notice resulted in a judgment on the merits against the plaintiff; and, in all *869events, the denial of a hearing upon request in Lawrenson is a far cry from the cancellation of a contemplated hearing without notice.
The suggestion with which the majority opinion concludes that “[i]f plaintiffs position be upheld, it would mean he could indefinitely continue to do nothing, and so without end stagnate the judicial process, although he was the claimant,” I believe to be especially unpersuasive and inapplicable here. If, in fact, the plaintiff was guilty of delay, and such is not shown in the record, all anyone had to do to end it, either the district court or the defendants, was to give the plaintiff notice of the canceled hearing. This was not done, and I think its failure should not be excused.