22-1921-cv Kowalchuck v. Metropolitan Transportation Authority

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Argued: September 20, 2023 Decided: February 27, 2024)

Docket No. 22-1921-cv

JOHN KOWALCHUCK, Plaintiff-Appellant,

- against -

METROPOLITAN TRANSPORTATION AUTHORITY, Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

Before: WALKER, CHIN, and ROBINSON, Circuit Judges.

Appeal from a judgment of the United States District Court for the

Eastern District of New York (Brown, J.), granting summary judgment in favor of

the defendant-appellee former employer in this personal injury action brought under the Federal Employers' Liability Act,

et seq. Pursuant to the

district court's individual rules, the employer requested a pre-motion conference

to discuss its anticipated motion for summary judgment. The district court held

a pre-motion conference and thereafter, deeming the motion to have been made,

denied it, setting the matter down for trial. Two years later, and only four days

before the scheduled start of trial, the district court sua sponte reconsidered and

granted summary judgment to the employer, dismissing the complaint, without

notice to the parties or an opportunity for the former employee to submit

opposition.

VACATED AND REMANDED.

PHILIP DINHOFER, Philip J. Dinhofer LLC, Rockville Centre, New York, for Plaintiff-Appellant.

HELENE HECHTKOPF, Hoguet Newman Regal & Kenney, LLP, New York, New York (Jason D. Barnes, Metropolitan Transportation Authority, New York, New York, on the brief), for Defendant- Appellant.

CHIN, Circuit Judge:

In this case, plaintiff-appellant John Kowalchuck sued his former

employer, defendant-appellee Metropolitan Transportation Authority (the

-2- "MTA"), under the Federal Employers' Liability Act ("FELA"),

et

seq., for injuries sustained while clearing snow at an MTA property. The MTA

requested a pre-motion conference to discuss its anticipated motion for summary

judgment. The district court granted the request. At the pre-motion conference,

the district court deemed the MTA's motion as having been made and denied it.

Two years later, and only four days before trial was set to begin and without

notice to either party, the district court reconsidered its previous denial of the

motion and granted summary judgment in favor of the MTA, dismissing the

complaint. Kowalchuck was not given an opportunity to submit papers in

opposition to the motion.

On appeal, Kowalchuck argues that the district court erred when it

sua sponte reconsidered its denial of summary judgment and granted summary

judgment to the MTA, without giving him notice or an opportunity to be heard.

We agree. For the reasons set forth below, we VACATE and REMAND.

-3- BACKGROUND

I. The Facts

As alleged in the complaint, 1 the facts may be summarized as

follows: Kowalchuck was employed as a police officer by the MTA. On January

27, 2015, during a shift, Kowalchuck shoveled snow from an accessibility ramp at

an MTA building. While pushing a shovel on the ramp to clear the snow, he hit

a raised edge of a wooden plank. Kowalchuck felt a jolt, and sustained injuries

to his shoulder, neck, and cervical spine. On August 26, 2016, Kowalchuck

retired from the MTA.

II. Procedural History

On April 8, 2017, Kowalchuck filed the complaint below. He alleged

that the MTA's negligence caused the injuries he sustained while shoveling

snow, and he sought $5 million in damages. Specifically, he maintained that the

MTA was negligent by failing to provide a safe workplace and failing to inspect

and maintain the accessibility ramp. The MTA answered the complaint on June

7, 2017.

1 Although this is an appeal from the grant of summary judgment, as discussed below, the record is incomplete. Accordingly, we rely on the facts set forth in the complaint. -4- Following discovery, the MTA sought to move for summary

judgment. In accordance with the district court's procedures, the MTA filed a

letter requesting a conference to discuss its anticipated summary judgment

motion. Appellant's App'x 27-28 (noting that the district court's individual rules

require parties who wish to make a motion to first request a pre-motion

conference). The MTA argued that Kowalchuck could not establish the elements

of a negligence claim, as required by FELA, and that Kowalchuck's claim failed

in any event because the MTA provided him with a reasonably safe workplace.

The MTA also filed a proposed statement of facts, apparently incorporating

Kowalchuck's responses and counterstatement of facts. The document is not

signed by either side. While the document cites deposition transcripts and refers

to photographs, none are attached as exhibits. See Docket No. 24-1. The next

day, before receiving any response from Kowalchuck, the district court granted

the MTA's request for a pre-motion conference and ordered the parties to "be

prepared to address defendant's anticipated summary judgment motion."

Appellant's App'x at 49. The district court did not require Kowalchuck to

respond to the MTA's pre-motion letter.

-5- On March 6, 2020, the district court held the pre-motion conference.

As the transcript of the conference shows, the district court gave both sides the

opportunity to address Kowalchuck's FELA claim orally. At the conclusion of

the conference, the district court explained that it would deem the MTA's motion

as having been made and was denying it. The district court subsequently

entered a minute order to that effect, which read, in relevant part: "The Court

deems the motion having been made and finds there are sufficient issues of fact

to be determined by a jury. Jury selection and trial set for 6/1/2020 at 9:30 a.m.

before Judge Brown." Appellant's App'x at 15; see also

. Because the

district court did not require the MTA to move formally for summary judgment

before entering its denial, there was no need for Kowalchuck to respond in

writing to the MTA's anticipated motion for summary judgment, and he did not

do so.

Two years went by. After delays due in part to the COVID-19

pandemic, the district court scheduled a bench trial for August 8, 2022. 2 On

August 4, 2022 -- just four days before the bench trial was set to begin and with

no notice to either party -- the district court reconsidered its previous denial of

2 On January 21, 2022, the parties informed the district court that they had agreed to proceed with a bench, rather than a jury, trial. See Docket No. 49. -6- summary judgment and granted summary judgment in favor of the MTA in a

memorandum of decision and order. Kowalchuck v. Metro. Transp. Auth., No. 17-

CV-2146 (GRB),

, at *1 (E.D.N.Y. Aug. 4, 2022). The district

court's memorandum decision stated, in part:

This action, brought pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 5l, et seq., is set for a bench trial in several days. While the Court had earlier rejected a motion for summary judgment, in preparing for trial, matters have come to the Court's attention that reveal that that determination was in error, because based upon undisputed fact and recent appellate law, the plaintiff simply cannot prevail. While the Court could simply allow the matter to proceed to a short bench trial, such procedure would visit unjustified costs and encumbrances of travel and trial preparation upon the parties. In fact, in this case, there are specific burdens that would be worked upon plaintiff should trial proceed. See DE 29 (letter noting that plaintiff, who has to travel from North Carolina, has suffered a series of strokes, is a cardiac care patient, and faces enhanced COVID risks). Thus, while the Court regrets taking this action at the eleventh hour, the practical and evidentiary realities and common decency demand that the Court must reconsider its earlier determination and enter summary judgment in favor of defendant.

Id.

The district court made several factual findings in granting

summary judgment to the MTA. See id. at *1-3. It found, for example, that the

-7- defect in the accessibility ramp was, at its worst, "approximately equal[] to the

thickness of a key fob, which measures 6/16" of an inch, and that the ramp was

"fully functional for its intended use." Id. at *1. The district court included a

photograph of the defect in its memorandum decision, as well as a blow-up of

that photograph, and referenced other photographs "supplied in anticipation of

trial." See id. at *1. Although the record is not clear, it appears that the MTA

submitted these photographs to the district court in a July 22, 2022 letter as part

of a set of pre-marked trial exhibits. See Appellant's App'x at 79. The MTA's

letter, the photograph, and its blow-up are included in the Appellant's Appendix

on appeal but were not docketed below. Appellant's App'x at 18 (showing no

entry or documents containing pre-marked exhibits filed on or around July 22,

2022).

The MTA had not renewed its motion for summary judgment before

the district court's August 4, 2022 decision, and the district court did not give

notice to the parties that it was reconsidering its prior denial of summary

judgment. Judgment was entered on August 5, 2022. This appeal followed.

-8- DISCUSSION

Kowalchuck contends that the district court erred when it sua sponte

reconsidered its earlier denial of the MTA's motion for summary judgment, and

then granted the motion, without giving him notice or an opportunity to be

heard. We agree.

I. Standard of Review

We review a district court's grant of summary judgment de novo.

Murphy v. Hughson,

(2d Cir. 2023). We also review claims of

procedural error in the grant of summary judgment de novo. See Hisps. for Fair &

Equitable Reapportionment (H-FERA) v. Griffin,

, 26 (2d Cir. 1992) (per

curiam) ("As de novo reviewers of the district court's order, we . . . hold that there

was insufficient notice and opportunity to be heard in the instant case.").

II. Applicable Law

A. The Requirement of a Pre-Motion Conference

District courts have the "inherent authority to manage their dockets"

to promote "the efficient and expedient resolution of cases." Dietz v. Bouldin,

(2016) (citations omitted). To that end, it is a common practice in this

Circuit for district courts to require parties to request a conference before filing a

-9- motion and submit letters describing the grounds for the proposed motion. See,

e.g., Richardson Greenshields Sec., Inc. v. Lau,

(2d Cir. 1987)

(describing this practice). Pre-motion conferences may serve a useful purpose, as

they enable district judges, for example, to weed out frivolous motions, narrow

the issues, and set briefing schedules. See

(noting that "[l]itigants and

the courts profit" when pre-motion conferences "serve the useful purpose of

narrowing and resolving conflicts between the parties and preventing the filing

of unnecessary papers"); Inside Connect, Inc. v. Fischer, No. 13-cv-1138 (CS),

, at *10 n.20 (S.D.N.Y. June 30, 2014) ("Pre-motion letters are a

procedural tool . . . use[d] to manage the litigation process; they are not a

strategic device to prevent the court from deciding cases on the merits.").

While pre-motion letters and conferences are useful tools, the

inherent authority of district courts to conduct abbreviated proceedings has

limits. "Absent extraordinary circumstances, such as a demonstrated history of

frivolous and vexatious litigation . . . or a failure to comply with sanctions

imposed for such conduct . . . a court has no power to prevent a party from filing

pleadings, motions or appeals authorized by the Federal Rules of Civil

Procedure." Richardson Greenshields Sec.,

(citations omitted). Put

- 10 - simply, district courts' pre-motion requirements cannot operate to prevent

parties from moving for -- or opposing -- summary judgment.

B. District Courts' Power to Grant Summary Judgment Sua Sponte

Summary judgment is appropriate only if "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. 56(a). While a district court typically considers summary

judgment upon a motion by a party, a court may grant summary judgment

without being asked by a party to do so. See Fed. R. Civ. P. 56(f)(3); Celotex Corp.

v. Catrett,

(1986). A district court may grant summary judgment

sua sponte, however, only after providing the parties with notice and an

opportunity to be heard. See Fed R. Civ. P. 56(f). Specifically, Federal Rule of

Civil Procedure 56(f) requires a district court to: (1) give the parties "notice and a

reasonable time to respond" and (2) identify "for the parties material facts that

may not be genuinely in dispute." Id.; see In re 650 Fifth Ave. & Related Props.,

(2d Cir. 2016) (outlining the two-part test).

- 11 - These requirements are not new. 3 Rule 56 embodies procedural

safeguards that the Supreme Court and this Court have long required for sua

sponte grants of summary judgment. See Celotex,

("[D]istrict courts

are widely acknowledged to possess the power to enter summary judgments sua

sponte, so long as the losing party was on notice that she had to come forward

with all of her evidence." (citations omitted)); In re 650 Fifth Ave. & Related Props.,

("We have emphasized that 'care should be taken by the district

court to determine that the party against whom summary judgment is rendered

has had a full and fair opportunity to meet the proposition that there is no

genuine issue of material fact to be tried.'" (quoting Schwan-Stabilo Cosmetics

GmbH v. Pacificlink Int'l Corp.,

(2d Cir. 2005))); Hisps. for Fair &

Equitable Reapportionment (H-FERA), 958 F.2d at 25 ("We cannot in good

conscience affirm a summary judgment if we are not satisfied that the appellant

had been given an opportunity upon notice to oppose the grant below."). Where,

3 Since 2010, Rule 56 has "provide[d] express procedures governing the grant of summary judgment independent of a motion." Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P.,

, 80 n.2 (2d Cir. 2014). Subsection (f) reads in full: "After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute." Fed R. Civ. P. 56(f). - 12 - as here, a court decides to reconsider a prior denial of summary judgment, it

must give notice and an opportunity to be heard. See Warner Bros. Inc. v. Am.

Broad. Cos.,

, 245-46 (2d Cir. 1983). 4

We vacate and remand for procedural error where a district court

grants summary judgment before a party has notice or the opportunity to be

heard and, as a result, the party is procedurally prejudiced. See In re 650 Fifth

Ave. & Related Props.,

(vacating the district court's judgment where

the losing party had no notice or opportunity to present evidence, and

concluding that, because of an undeveloped record, the district court

procedurally erred in granting summary judgment in favor of the government).

A party is prejudiced by the district court's use of a truncated or expedited

procedure if the party "is surprised by the district court's" sua sponte grant of

summary judgment and "that surprise results in the party's failure to present

evidence in support of its position." Bridgeway Corp. v. Citibank,

(2d Cir. 2000) (citations omitted); see ING Bank N.V. v. M/V TEMARA, IMO No.

9333929,

(2d Cir. 2018) (vacating because "[b]y sua sponte

4 In Warner Bros., although we noted that a trial court has discretion to reconsider an interlocutory ruling, we suggested that it would be an abuse of discretion to do so if the party opposing the motion had not been given "a full opportunity to oppose the motion when first made."

- 13 - entering summary judgment without affording ING the opportunity to present

its relevant evidence, the District Court denied ING the procedures to which it

was entitled under Rule 56"). 5

III. Application

We conclude that the district court committed procedural error in

granting summary judgment to the MTA in the circumstances here.

First, the district court erred by failing to give Kowalchuck notice

before reconsidering its denial of summary judgment and granting summary

judgment in favor of the MTA. See Fed R. Civ. P. 56(f); In re 650 Fifth Ave. &

Related Props.,

(concluding the district court procedurally erred by

sua sponte granting summary judgment for the moving party based on a ground

not raised by the moving party and without giving any notice to the non-moving

party). As the MTA conceded at oral argument, Kowalchuck did not receive any

notice that the district court was reconsidering its prior denial of summary

judgment. See Oral Arg. Tr. at 13:12-13. And Kowalchuck had no reason to

5 In Bridgeway, while we affirmed the sua sponte grant of summary judgment against a moving party, we noted that we "have firmly discouraged the practice."

. We concluded that the party against whom summary judgment was granted was not prejudiced because the issues in question had been fully briefed. See

. - 14 - expect such a decision, given that trial was set to begin in just four days. See

Celotex, 447 U.S. at 326 (permitting sua sponte summary judgment only if "the

losing party was on notice that she had to come forward with all of her

evidence").

Second, the district court erred by not affording Kowalchuck the

opportunity to respond before granting summary judgment. Kowalchuck had

no opportunity, much less a "full and fair" one, to submit evidence to show the

existence of genuine issues of fact to challenge the MTA's evidence or legal

arguments. Ramsey v. Coughlin,

(2d Cir. 1996), superseded in part

by statute, Fed R. Civ. P. 56(f). 6 Kowalchuck was thus prejudiced by the

truncated procedure adopted by the district court. See Bridgeway,

.

Third, the district court erred by granting summary judgment

without a proper summary judgment record. It relied on the MTA's proposed

statement of facts and Kowalchuck's apparent responses to those facts and his

proposed counterstatement of facts -- as well as photographs with unclear

6 "Although Ramsey was decided before Rule 56 was amended in 2010 to provide express procedures governing the grant of summary judgment independent of a motion, its statements regarding the care a district court must take before sua sponte granting summary judgment remain good law." Swatch Grp.,

n.2.

- 15 - origins. See generally Kowalchuck,

, at *1-3 (citing docket entry

24-1, the proposed facts, and including and citing to photographs). As noted

above, the record suffered from several deficiencies: the statements of facts were

only proposed statements and were unsigned, and the cited deposition

transcripts or photographs were not provided. The district court relied on

photographs that had not yet been received into evidence, without giving

Kowalchuck an opportunity to object to or comment on them, and without

considering any evidence that Kowalchuck might have wanted to offer.

While the MTA argues on appeal that any error was harmless

because Kowalchuck failed to identify any evidence that could have defeated

summary judgment, that argument misses the point. Kowalchuck did not have

the opportunity to submit evidence before the district court granted summary

judgment against him. We cannot determine if the error was harmless because

we simply do not know what would be in a proper summary judgment record.

See Ramsey,

(reversing a grant of summary judgment because "we

have no way of knowing whether all pertinent materials obtained in discovery

are before us"); cf. Park S. Hotel Corp. v. N.Y. Hotel Trades Council & Hotel Ass'n of

N.Y.C., Inc. Pension Fund,

(2d Cir. 1983) (per curiam) (reversing a

- 16 - grant of a stay of arbitration where the opposing party was "denied its day in

court" and remanding for the district court to give that party "the opportunity . . .

to offer relevant evidence and expand the record").

We have no quarrel with the district court's decision, at the

conclusion of the March 6, 2020 conference, to deem the MTA's motion for

summary judgment as having been made. We have "occasionally 'approved' the

practice of construing pre-motion letters as the motions themselves under

appropriate circumstances." Int'l Code Council, Inc. v. UpCodes Inc.,

, 54

(2d Cir. 2022) (alteration adopted) (quoting Kapitalforeningen Lægernes Inv. v.

United Techs. Corp.,

, 70 (2d Cir. 2019) (summary order)). We have

approved this practice with respect to the resolution of non-dispositive motions

and the denial of dispositive motions. See Int'l Code Council, 43 F.4th at 54

(collecting cases); In re Best Payphones, Inc.,

(2d Cir. 2011)

(summary order) (affirming the denial of a pre-motion letter for sanctions that

the district court "construed . . . as the motion itself" because the letter and

responses were lengthy and detailed, and showed the "clear lack of merit of the

sanctions argument"). And while we have occasionally affirmed the granting of

dispositive motions without full briefing, we have done so only when the issues

- 17 - were predominantly legal and the complaint had "substantial deficiencies," while

emphasizing our concerns with such an approach. See Grossman v. GEICO Cas.

Co., No. 21-2789,

, at *4 (2d Cir. May 25, 2022) (summary order)

(concluding that "any error in the district court's dismissal order is harmless"

while noting that plaintiffs "raise[d] a valid concern" about the lack of full

briefing and reiterating that the "procedure the district court used was perhaps

improper").

Summary judgment, of course, is a dispositive motion, and often the

issues raised are not predominantly legal. We have long expressed "[o]ur

disapproval" of grants of dispositive motions based on pre-motion letters. Int'l

Code Council, 43 F.4th at 54-55. We repeat ourselves more forcefully here: If a

district court believes it should grant summary judgment (or other dispositive

relief) based on pre-motion letters, it must give the party opposing the motion

notice and an opportunity to be heard, including, with respect to a request for

summary judgment, the opportunity to submit evidence.

While the district court's desire to streamline the proceedings and

save Kowalchuck the time, trouble, and expense of going to trial in what it

believed was a weak case is understandable, it could not do so at the expense of

- 18 - Kowalchuck's right to notice and an opportunity to be heard. The abbreviated

nature of the proceedings here is particularly troubling because Kowalchuck

brings this case under FELA, a statute that seeks to provide broad protection for

workers employed by railroads engaged in interstate commerce. Indeed, the

Supreme Court has relaxed the standards for proving negligence in FELA cases.

See Rogers v. Mo. Pac. R.R. Co.,

(1957) ("[T]he test of a jury case is

simply whether the proofs justify with reason the conclusion that employer

negligence played any part, even the slightest, in producing the injury or death

for which damages are sought."); see also Sinclair v. Long Island R.R.,

(2d Cir. 1993) ("[T]here is 'a considerably more relaxed standard of proof' for

determining negligence in FELA cases . . . ." (citations omitted)); Ulfik v. Metro-

North Commuter R.R.,

, 58 (2d Cir. 1996) ("[A]n employer may be held

liable under FELA for risks that would otherwise be too remote to support

liability at common law." (citations omitted)). Kowalchuck was deprived of a

fair opportunity to show that he could meet the FELA standards. As a result, we

remand the case to the district court to give Kowalchuck a fair opportunity to

show whether he could meet these standards; we express no view as to whether

he can. See Hisps. For Fair & Equitable Reapportionment (H-FERA), 958 F.2d at 26

- 19 - ("We express no opinion as to whether they can make this showing. We simply

hold that they should be given this opportunity.").

CONCLUSION

For the foregoing reasons, the judgment of the district court is

VACATED and the case is REMANDED for further proceedings.

- 20 -