Universal Life Church Monastery Storehouse Inc. v. Cauley
Opinion of the Court
Universal Life Church World Headquarters, Inc. (“ULC HQ”) and Michael Cauley (collectively, “Cauley”) appeal from the district court’s grant of summary judgment in favor of the Universal Life Church Monastery Storehouse, Inc. (“ULC Monastery”) and George Freeman (collectively, “Appellees”) on their claim that Cauley violated a mediated settlement agreement between the parties concerning prior and ongoing defamation (the “Settlement Agreement”). On appeal, Cauley argues that: (1) the district court failed to provide him with notice that he could file affidavits or other responsive materials and the potential consequences if he failed to do so; and (2) even if the district court provided notice, summary judgment was improper because material facts were in dispute. After careful review, we affirm.
We review a district court’s order granting summary judgment de novo, applying the same standard as the district court. Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003). We view the material presented and draw all factual inferences in the light most favorable to the nonmoving party. Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62 (11th Cir. 2006). Summary judgment is proper where “the mov-ant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 66(a). “A mere scintilla of evidence supporting the nonmoving party’s position will not suffice.” > Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (alteration adopted) (quotations omitted). Summary judgment is also proper if the evidence “is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A party moving for summary judgment bears “the initial responsibility” of pointing to the pleadings and other record evidence to “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993). Where, as here, the movant bears the burden of proof at trial, the nonmovant “must come forward with evidence sufficient to call into question the inference created by the movant’s evidence on the particular material fact.” Id. Because of this burden on the nonmovant, “[a] motion for summary judgment should only be granted against a litigant without counsel if the court gives clear notice [at least ten days prior to ruling] of the need to file affidavits or other responsive materials and of the consequences of default.” United States v. One Colt Python .857 Ca. Revolver, 845 F.2d 287, 289 (11th Cir. 1988). See also id. (“When a litigant moves pursuant to [R]ule 56 for summary judgment or when the district court converts a motion to dismiss into a motion for summary judgment, the ‘bright-line’ ten-day notice requirement is stringently enforced.”).
The district court’s order clearly and' plainly warned Cauley that he would have to submit affidavits or responsive eviden-tiary material to prevent the district court from accepting the Appellees’ evidence as true and granting summary judgment in their favor without a trial. Our precedent does not require a district court to provide that notice at an oral hearing. See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam) (“[I]t is well settled in this Circuit that [the Rule 56 notice] requirement does not of necessity require that such notice be given at an oral hearing. ...”). Since the district court provided Cauley with the required notice, it could then “properly take [Appellees’] motion under advisement ... [and] rule on the motion consistent with the dictates of procedural fairness required by Rule 56,” even though Cauley was proceeding without the assistance of counsel. Id. Thus, the district court committed no error when it provided Cauley with notice before it ruled on the motions for summary judgment.
As for Cauley’s alternative claim that there are disputed, material facts that rendered improper the grant of summary judgment, Cauley did not raise this issue in his opening brief before this Court. Rather, he argued it for the first time in his reply brief. “It is well settled in this [C]ireuit that an argument not included in the appellant’s opening brief is deemed abandoned. And presenting the argument in the appellant’s reply does not somehow resurrect it.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972 (11th Cir. 2008) (citation omitted). Thus, Cauley has abandoned this argument and we need not consider it.
However, even if we were to consider the argument, it would still fail on the merits. Cauley claims that the district
In the face of this evidence, and to claim that he did not have control over the offending statements, Cauley relies solely on a printout of a Google support page that he attached to his motion for summary judgment. The support page provides guidance in the event that a user’s account has been disabled. However, the support page printout does not state the date that any particular account may have been disabled. Nor is it linked in any way to Cauley’s own account. Moreover, the printout expressly says that “[y]our account has not been deleted[;] your data is still intact and it might be possible to regain access to your account.” Appellees provided sworn affidavits from persons “familiar with internet and website postings” who averred that even if Cauley could not immediately access his account, he could “regain access ... by following the [host’s] requirements,” or, alternatively, he could “request that the post[s] be removed by the host.” Stated simply, the undated, generic support page provided by Cauley does not create a genuine issue of material fact, and the district court committed no error when it granted summary judgment in Appellees’ favor.
AFFIRMED.
. Because we find that the district court committed no error, we need not address the Appellees’ argument regarding harmless error. ■ See Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1268 (11th Cir. 2002) (noting that insufficient Rule 56 notice is harmless where notwithstanding any error, "the nonmoving party [has had] an opportunity to marshal its resources and rebut the motion for summary judgment with every factual and legal argument available” (alterations adopted) (quotation omitted)).
Reference
- Full Case Name
- UNIVERSAL LIFE CHURCH MONASTERY STOREHOUSE INC., a Washington Corporation, George Freeman, an individual v. Michael J. CAULEY, Registered agent for Universal Life Church World Headquarters, Inc. Universal Life Church World Headquarters Inc., a Florida Corporation, Jane Doe Cauley, Husband and wife
- Cited By
- 1 case
- Status
- Published