Reed v. Bennett

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 6 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MARIAH V. REED,

Plaintiff-Counter-Defendant -
Appellant,

v. No. 01-3116

NELLCOR PURITAN BENNETT,

Defendant-Counter-Claimant -
Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 98-CV-2313-CM)

Richard Helfand of Panethiere & Helfand, LLC, Kansas City, Missouri, for Plaintiff-
Appellant.

Mary C. O’Connell (Thomas N. Sterchi with her on the brief), of Baker Sterchi Cowden
& Rice, LLC, Kansas City, Missouri, for Defendant-Appellee.

Before MURPHY, ANDERSON, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.
 Plaintiff Mariah V. Reed appeals a district court order granting Defendant Nellcor

Puritan Bennett’s summary judgment motion. See Fed. R. Civ. P. 56. After Reed failed

to file a timely response to Nellcor’s motion, the district court granted the motion as

uncontested pursuant to District of Kansas Local Rules. District of Kansas Local Rules

provide that a party must file a response to a summary judgment motion within twenty

days or the motion will be deemed unopposed. Unopposed motions are “considered and

decided as an uncontested motion, and ordinarily will be granted without further notice.”

D.Kan. R. 7.4. Reed asserts the district court erred in entering summary judgment

pursuant to local rules without making the determinations required by Fed. R. Civ. P.

56(c). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand with

instructions.

I.

Reed instituted the current action after Nellcor terminated her employment

following her application and receipt of benefits under the Kansas Workers’

Compensation Act. After the termination, Nellcor posted and filled a position with

identical duties. Reed filed her complaint on July 9, 1998, asserting employment

discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101.

Reed’s current counsel and his former associate are the attorneys of record in the

complaint. The district court granted the former associate’s motion to withdraw as

counsel on May 23, 2000. At that time, Reed’s current counsel requested a 180-day

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extension of discovery deadlines to familiarize himself with the case. On June 8, the

court ordered a 120-day extension and adjusted the scheduling order accordingly. After

the extension, final exhibit and witness lists were due September 1, 2000. On September

1, Nellcor filed its exhibit and witness lists. Reed’s counsel filed a second motion

requesting a 180-day extension, asserting he needed additional time due to an accident, a

death in his family, and his new status as a sole practitioner. On September 8, 2000, the

court ordered a 30-day extension through October 8, 2000. Counsel failed to file exhibit

and witness lists by October 8. Between June 8 and October 8, Reed’s counsel also did

not file a single substantive motion and did not contact opposing counsel to discuss

discovery or any other aspect of the case.

Nellcor filed its summary judgment motion on December 1, 2000. Reed’s

response was due December 26. Reed’s counsel failed to file a response. District of

Kansas Local Rules provide that a party’s failure to file a timely response constitutes a

waiver of the right to file a response, except upon a showing of excusable neglect. See D.

Kan. R. 7.4. On December 29, counsel filed an untimely motion for an extension of time

to respond. The court denied counsel’s motion and ordered him to show excusable

neglect. Counsel responded that he mistakenly believed he had thirty days to file a

response to a summary judgment motion, asserted that the requested extension would not

interfere with the pre-trial schedule, and asserted that the requested extension would not

prejudice Nellcor. Counsel also filed a motion to stay proceedings 90 days due to family

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and medical problems, his solo status, and asserted difficulty in hiring an associate or

associating counsel for the case. The court denied counsel’s motion for stay but granted

an extension of time to file a summary judgment response. After the extension, Reed’s

response was due March 12, 2001.

The Pre-Trial Order ordered the parties to make Rule 26(a)(3) disclosures and

exchange exhibits by March 6, 2001. Nellcor filed its disclosures on March 6. Reed’s

counsel did not file disclosures or exhibits. Counsel also did not file a response to

Nellcor’s summary judgment motion by March 12. Nine days later, on March 21, 2001,

counsel filed a motion seeking yet another continuance and reconsideration of the prior

motion for stay. On March 23, the district court granted Nellcor’s summary judgment

motion as uncontested pursuant to Local Rule 7.4, denying by implication counsel’s

untimely motion for a continuance and stay. On March 27, the court entered judgment

against Reed and ordered her to pay costs. Reed appeals.

II.

Reed asserts the district court erred in granting summary judgment pursuant to a

local rule.1 Local rules in several districts in this circuit deem an uncontested motion

1
Reed also asserts the district court erred in refusing to grant her counsel’s motion
to stay or her counsel’s untimely motion to continue the case. We review for an abuse of
discretion the district court's denial of a motion to stay proceedings. Ben Ezra, Weinstein,
and Co., Inc. v. America Online Inc., 206 F.3d 980, 987 (10th Cir. 2000). We also review
for an abuse of discretion the district court’s denial of a motion for continuance. Phillips
v. Ferguson, 182 F.3d 769, 775 (10th Cir. 1999). The district court granted several
(continued...)

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confessed, making no exception for summary judgment motions. See, e.g., D. Kan. R.

7.4; D.N.M.L.R.-Civ 7.5(b); E.D. Okl. R. 7.1(B), W.D. Okl. LCvR. 7.2(e); DUCivR 7-

1(d); U.S.D.C.L.R. 7.1(b)(2). We generally treat a district court’s application of local

rules to grant an uncontested summary judgment motion as a sanction, requiring

application of the sanction analysis specified in Meade v. Grubbs, 841 F.2d 1512 (10th

Cir. 1988). In this case, the district court did not perform the sanction analysis, granting

Defendant’s motion solely based on Reed’s failure to file a timely response. Accordingly,

the determinative issue on appeal is whether a district court can grant summary judgment

pursuant to local rules without making the determinations required by Fed. R. Civ. P.

56(c). We hold that it cannot.

A.

District courts are authorized to prescribe local procedural rules provided the rules

are consistent with the Acts of Congress and the Federal Rules of Procedure. See 28

U.S.C. § 2071; Fed. R. Civ. P. 83. District of Kansas Local Rule 7.4 provides:

The failure to file a brief or response within the time specified within Rule
6.1(e) shall constitute waiver of the right thereafter to file such brief or
response, except upon a showing of excusable neglect. . . . If a respondent

1
(...continued)
extensions to accommodate Reed’s counsel. Despite the extensions, counsel failed to file
exhibit or witness lists, failed to comply with the Pre-Trial Order, filed no substantive
motions, and never contacted opposing counsel concerning any aspect of the case.
Counsel was not diligent in moving the case to trial. Accordingly, the court did not abuse
its discretion when it denied the motion to stay, or when it denied by implication the
motion to continue the case and to reconsider the motion to stay.

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 fails to file a response within the time required by Rule 6.1(e), the motion will
be considered and decided as an uncontested motion, and ordinarily will be
granted without further notice.

Local Rule 6.1(e) provides: “A party shall have 20 days to respond to a motion to dismiss

or for summary judgment.” Reed’s counsel failed to file a response within twenty days,

and failed to file a response within the time granted as an extension after the court found

excusable neglect. As a result, the court was free to consider and decide the summary

judgment motion as an uncontested motion pursuant to its local rule. By failing to file a

response within the time specified, Reed waived the right to file a response or to

controvert the facts asserted in the summary judgment motion.

But district courts must construe and apply local rules in a manner consistent with

Fed. R. Civ. P. 56. See Fed. R. Civ. P. 83. Under Rule 56(c), the moving party:

always bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any,” which it believes demonstrate the absence of a genuine
issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (quoting Fed.R.Civ.P. 56(c)) (emphasis

added). Summary judgment is not proper merely because Reed failed to file a response.

Before the burden shifts to the nonmoving party to demonstrate a genuine issue, the

moving party must meet its “initial responsibility” of demonstrating that no genuine issue

of material fact exists and that it is entitled to summary judgment as a matter of law. Id.

Fed. R.Civ. P. 56(e) specifically contemplates the consequences of failing to

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oppose a summary judgment motion:

When a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or denials of
the adverse party’s pleadings, but the adverse party’s response, by affidavits
or as otherwise provided by this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the party does not so respond, summary
judgment, if appropriate, shall be entered against the adverse party.

(emphasis added). As explained by the Supreme Court in Adickes v. S.H. Kress & Co.,

398 U.S. 144, 160-61 (1970), the burden on the nonmovant to respond arises only if the

summary judgment motion is properly “supported” as required by Rule 56(c).

Accordingly, summary judgment is “appropriate” under Rule 56(e) only when the moving

party has met its initial burden of production under Rule 56(c). If the evidence produced

in support of the summary judgment motion does not meet this burden, “summary

judgment must be denied even if no opposing evidentiary matter is presented.” Id. at 160

(quoting Fed. R. Civ. P. 56 advisory committee notes to the 1963 amendments) (emphasis

added). If the nonmoving party fails to respond, the district court may not grant the

motion without first examining the moving party’s submission to determine if it has met

its initial burden of demonstrating that no material issues of fact remain for trial and the

moving party is entitled to judgment as a matter of law. If it has not, summary judgment

is not appropriate, for “[n]o defense to an insufficient showing is required.” Id. at 161.

To summarize, a party’s failure to file a response to a summary judgment motion is

not, by itself, a sufficient basis on which to enter judgment against the party. The district

court must make the additional determination that judgment for the moving party is

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“appropriate” under Rule 56. Summary judgment is appropriate only if the moving party

demonstrates that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. By failing to file a response within the time specified by the

local rule, the nonmoving party waives the right to respond or to controvert the facts

asserted in the summary judgment motion. The court should accept as true all material

facts asserted and properly supported in the summary judgment motion. But only if those

facts entitle the moving party to judgment as a matter of law should the court grant

summary judgment. See Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001); Anchorage

Assoc. v. Virgin Islands Board of Tax Review, 922 F.2d 168, 175-76 (3d Cir. 1990);

Livernois v. Medical Disposables, Inc., 837 F.2d 1018, 1022 (11th Cir. 1988).

B.

Nellcor asserts the district court properly entered summary judgment as a sanction

pursuant to Local Rule 7.4. Local Rule 7.4 does not in itself authorize the court to grant a

motion as a sanction against a non-responding party. The purpose of Rule 7.4 is not to

impose or authorize a sanction for a party’s failure to prosecute or defend. The rule’s

purpose is to facilitate the trial court’s disposition of motions. The rule applies to all

motions, under all circumstances, including motions filed in diligently litigated cases. It

authorizes the court to grant applications solely based on the information the moving

party puts before the court unless some response indicates that a genuine controversy

exists concerning the right to the relief sought. See Anchorage Associates, 922 F.2d at

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176 n.7 (applying a similar analysis).

A district court undoubtedly has discretion to sanction a party for failing to

prosecute or defend a case, or for failing to comply with local or federal procedural rules.

Such sanctions may include dismissing the party’s case with prejudice or entering

judgment against the party. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396

(10th Cir. 1988). But dismissal or other final disposition of a party’s claim “is a severe

sanction reserved for the extreme case, and is only appropriate where a lesser sanction

would not serve the ends of justice.” Id. (citing Meade v. Grubbs, 841 F.2d 1512 (10th

Cir. 1988)). In applying such a sanction, the district court must consider: (1) the degree

of actual prejudice to the opposing party; (2) the amount of interference with the judicial

process; and (3) the culpability of the litigant. Id. (citing Meade). “Only when these

aggravating factors outweigh[] the judicial system’s strong predisposition to resolve cases

on their merits is outright dismissal with prejudice an appropriate sanction.” Id.

Both parties encourage this Court to perform independently the Meade sanction

analysis. We decline to do so. This Court generally requires the district court to perform

an explicit analysis of the Meade factors prior to dismissal. See Murray v. Archambo,

132 F.3d 609, 610 (10th Cir. 1998) (noting the district court did not consider the Meade

factors in dismissing the case).2 Where the district court did not perform a sanction

2
See also Tabb v. Dunkle, 33 Fed.Appx. 973, 975 (10th Cir. 2002) (citing Murray
for the proposition that this Court requires “the district court to set forth an analysis of
(continued...)

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analysis, this Court has applied the Meade factors to reverse the district court’s sanction

as overly severe. See, e.g., Hancock, 857 F.2d at 1396; Meade, 841 F.2d at 1520. This

Court has never independently employed the Meade analysis to uphold a district court

sanction. The Meade analysis is highly fact specific. The district court is in a far better

position than this Court to judge the culpability of the litigant, the degree of prejudice to

the opposing party, and the interference with the court’s docket and the judicial process

caused by counsel’s failure to file a timely response.

C.

By failing to file a response within the time specified by the local rule, Reed

waived the right to file a response or to controvert the facts asserted in the summary

judgment motion. But Reed’s waiver did not relieve the court of its duty to make the

specific determinations required by Fed. R. Civ. P. 56(c). A district court properly grants

summary judgment pursuant to Rule 56 only if the motion demonstrates no genuine issue

of material fact exists and the movant is entitled to judgment as a matter of law.

Alternatively, the court can enter judgment as a sanction if warranted. While the facts of

this case likely support sanctions against the offending attorney, the district court did not

expressly consider the Meade factors prior to granting summary judgment.

2
(...continued)
these three factors before dismissing a petition for failure to comply with a local rule.”);
Cooper v. Saffle, 30 Fed.Appx. 865, 867 (10th Cir. 2002) (district court abused its
discretion when it did not analyze Meade factors).

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 We reverse and remand to the district court with directions to vacate its March 23,

2001 order granting Nellcor’s summary judgment motion and to vacate its March 27,

2001 order entering judgment against Reed. We further instruct the court either to

consider Nellcor’s uncontested motion to determine if Nellcor met its initial burden of

production under Fed. R. Civ. P. 56(c), or to set forth an analysis of the Meade factors

supporting the court’s entry of judgment as a sanction. The court need not permit Reed to

file a response as, pursuant to local rules, Reed waived that right.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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