recognizing that “grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned” and holding that where summary judgment movant asserted that non-movant’s claims were based on oral agreements and in response non-movant did not suggest to the contrary, non-movant could not later argue on appeal a different basis for the claims
How later courts described this case
- recognizing that “grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned” and holding that where summary judgment movant asserted that non-movant’s claims were based on oral agreements and in response non-movant did not suggest to the contrary, non-movant could not later argue on appeal a different basis for the claims
- holding that “[tjhere is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment! ] ... [rjather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned! ]”
- stating that “grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned” while declining to exercise its discretion to consider on appeal an argument in response to Defendant’s motion for summary judgment which Plaintiff had previously failed to allege
- explaining “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment” and that, “[r]ather, the onus is upon the parties to formulate arguments”
Written by the judges who cited it.
The opinion
BARKETT, Circuit Judge,
concurring in part and dissenting in part:
I dissent to the extent that the majority declines to address Jones’ tort claims of intentional interference with an advantageous business relationship and disclosure of confidential information.
In my judgment, Jones sufficiently asserted these claims, which do not challenge the validity of his obligation to the bank, and therefore are not D’Oench barred. Jones presented the claims in his pleadings; he argued them in his Memorandum of Law Opposing Motion for Summary Judgment (“Memorandum”), to which he attached depositions providing sufficient evidence to support his claims; and he referred to them again in his briefs before this Court.
In his Memorandum, Jones alleged, among other things, that bank officers approached potential buyers of his Lake Pickett property and offered to discount the note on the property, provided that Jones received nothing from the deal. Jones offered depositions by the potential buyers, Terry Hagen and Steven Chitwood, to support this claim of interference with an advantageous business relationship. He further alleged that the bank officers deliberately disclosed confidential information about his finances to sabotage his deal in order to benefit a rival bank in which the officers had an interest. I do not find this to be a vague or meritless claim.
In my judgment, RTC was on notice and should have made arguments in response. Although Jones could have better articulated and amplified his tort claims, I find that he fairly presented evidence to the district court to support them, and that he provided sufficient notice to RTC such that it should have adduced evidence in response. Jones did not merely rely on his pleadings, but, in my opinion, offered proof that genuine issues of material fact exist. Accordingly, I believe that the district court should have denied *601 summary judgment on the aforementioned claims.