Mendez v. Brown
Opinion of the Court
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument.
Plaintiff Ramon Mendez appeals from the district court’s grant of summary judgment, in accordance with a local rule, because of his failure to respond to defendants’ summary judgment motion, and from the court’s denial of his motion for reconsideration. For the reasons stated below, we affirm.
Plaintiff brought this action against defendants under 42 U.S.C. § 1983 and state law alleging violation of his constitutional rights to be free from false arrest and from cruel and unusual punishment and alleging assault and battery.
Plaintiff filed a timely notice of appeal and challenges both the initial grant of summary judgment and the denial of Ms motion for reconsideration. We review a district court’s grant of summary judgment based on a party’s failure to respond to a summary judgment motion, in violation of a local rule, for an abuse of discretion. Hancock, 857 F.2d at 1395. We review the demal of a motion for reconsideration, which we construe as filed pursuant to Fed.R.Civ.P. 59(e),
When a court grants summary judgment and dismisses a case for failing to respond to a summary judgment motion in violation of a local rule, we apply a fairly rigorous standard to the court’s action; that is, we require a court to consider on the record “(1) the degree of actual prejudice to the defendant; (2) the amount of mterference with the judicial process; and (3) the culpability of the litigant.” Hancock, 857 F.2d at 1396. We impose this rigorous standard because entry of an adverse judgment for violation of a local rule is a severe sanction that is appropriate only when a lesser sanction would not serve the ends of justice.
On appeal, plaintiff argues that the district court abused its discretion in denying his motion for reconsideration because the failure to respond to the summary judgment motion was due to his counsel’s ignorance of Local Rule 7.1(e), not counsel’s intentional disregard of that rule, and because the failure to respond was not part of a pattern of delay and neglect on his part. He further contends that any penalty should have been imposed on counsel rather than plaintiff. We see no abuse of discretion. The court noted that plaintiff, through his counsel, was aware defendants’ summary judgment motion had been filed and chose not to respond to it, or move that it be stricken, because of its alleged untimeliness. The court also noted, correctly, that plaintiff, through his counsel, should have been aware of Local Rule 7.1(e).
The final matter is to determine whether defendants were in fact entitled to summary judgment. The district court held that based on the deemed admissions, defendants were entitled to summary judgment. Although the court provided no legal analysis supporting its conclusion, plaintiff has not challenged the court’s determination on appeal. Plaintiff has thereby waived any challenge to the legal basis for the court’s ruling. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir. 1994). Accordingly, we affirm the entry of judgment against plaintiff.
AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.
. The charges levied against plaintiff were eventually dismissed.
. Western District of Oklahoma Local Civil Rule 7.1(e), which was renumbered 7.2(e) effective October 1, 2000, provides as follows: “Each party opposing a motion, application or objection shall file with the Clerk and serve upon all other parties a response within eighteen (18) days from the date of the motion, application or objection was filed ---- Any motion, application or objection which is not opposed within eighteen (18) days may, in the discretion of the Court, be deemed confessed.”
. Because plaintiff filed his motion for reconsideration within ten days of the court's judgment, it is considered a Rule 59(e) motion. See Hatfield v. Bd. of County Comm’rs, 52 F.3d 858, 861 (10th Cir. 1995).
. We note that other circuits do not permit the entry of summary judgment on this basis without a determination on the merits of the Rule 56 motion. See, e.g., Stough v. Mayville Comm. Schools, 138 F.3d 612, 614-15 (6th Cir. 1998); Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175-76 (3d Cir. 1990); Jaroma v. Massey, 873 F.2d 17, 19-20 (1st Cir. 1989).
. Indeed, counsel should also have been aware of Local Rule 56.1, which provides that "[a]ll material facts set forth in the statement of the material facts of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of material facts of the opposing party." W.D.Okla.LCvR 56.1(c). Other courts within this circuit employ similar rules, and we have not questioned their application. See, e.g., Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1108 n. 1 (10th Cir. 1999); Mitchael v. Intracorp, Inc., 179 F.3d 847, 856 (10th Cir. 1999).
Dissenting Opinion
dissenting:
I respectfully dissent from the majority opinion. I would conclude the district court abused its discretion in granting defendant’s summary judgment motion and in denying plaintiff’s motion for reconsideration.
In Meade v. Grubbs, 841 F.2d 1512, 1520, 1521 n. 7 (10th Cir. 1988), we noted three aggravating factors which are generally the focus for district courts in determining whether to deem a matter confessed for violation of local rules: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant. We further noted that “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 action.” Id. In Meade, we applied these factors and concluded that dismissal with prejudice was unwarranted.
After applying the Meade factors, I would conclude the district court’s denial of the plaintiffs request for an extension of time was unreasonable and an abuse of discretion. The district court found this case had been set on the March 2000 docket since October 1999, and that allowing plaintiff to file a late response to the summary judgment motion would delay the trial. The complaint was filed in June 1999. There is no evidence that delaying the case to the April or May 2000 docket would have prejudiced defendant or the court.
The district court found that the litigant was culpable because plaintiffs counsel deliberately chose not to respond to the motion for summary judgment. There is no evidence to support the conclusion that plaintiffs counsel knew that his response was due and failed to file it. To the contrary, plaintiff argues his counsel failed to read Local Rule 7.1(e) and believed, based upon Federal Rule of Civil Procedure 56, that no brief was due until the hearing was scheduled. While failure to read local rules is certainly not a laudable excuse, it is no more culpable than counsel’s conduct in Hancock, where plaintiffs counsel was given the motion for summary judgment and did not notice it in a stack of papers until after the time to respond had passed. The distinction we should draw is the difference between intentional, informed conduct and negligent conduct. Counsel’s conduct here was at most negligent and as in Hancock should not result in the entry of summary judgment for the defendants.
The district court did not evaluate whether the aggravating factors outweighed the judicial system’s interest in resolving cases on the merits. However, a slight delay because of failure to read local rules is insufficient to outweigh the interest in resolving cases on the merits.
I would reverse and remand to permit summary judgment briefing to proceed.
Reference
- Full Case Name
- Ramon MENDEZ, Plaintiff-Appellant, v. Scott BROWN, Deputy Sheriff; John Whetsel, Sheriff; Board of County Commissioners of Oklahoma County, Defendants-Appellees
- Cited By
- 2 cases
- Status
- Unpublished