Petition for Writ of Certiorari — McDuffie v. First Union National Bank

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Supreme Court, U.3.

FILED

971533 JAN 231998

NO.

—ere gs BHE CLERE

In The

Supreme Court of the United States

October Term, 1997

ERNEST MCDUFFIE, III,dba,

D&M Contracting Company

Petitioner,

FIRST UNION NATIONAL BANK,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Ernest McDuffie III, pro se

8803 Yeoman Drive,

Jacksonville, Fla. 32208

904-765-3149

CLEAR IMAGE PRINTING & COPY CENTER, INC. (904) 766-1860

QUESTION PRESENTED

Whether or not a recipeint of Federal funds

can use Federal funds to subsidize racial discrim-

ination, under Public Law 88-352, Title VI of the

Civil Rights Act, 1964 as amended, 42 U. S.C.

2000, by intentionally treating a Black African-

American, SBA (8)a__ certified general contractor

and his or her Black African-American

subcontractors differently in the administration of

construction and professional contracts?

LIST OF PARTIES

The Petitioner is Ernest McDuffie, III, doing

business as D & M Contracting Company, a sole

proprietorship, located in Jacksonville Florida, and

is not a subsidiary of any other corporation.

The Respondent is First Union National Bank of

Florida.

TABLE OF CONTENTS

QUESTION PRESENTED

LIST OF PARTIES

CONSTITUTIONAL AND STATUTORY PROVI-

I ak o's Cow a o'y 4 ces 0 ¥ ie i 2

REASONS FOR GRANTING THE PETITION. .. 17

I. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH THE U.S. SUPREME

COURT’S OPINION IN CELOTEX AND

RULE 56 OF FEDERAL RULE OF CIVIL

eee kia a Wee paw oeG 8 « 18

Il. THE COURT OF APPEALS’ DECISION

BRINGS INTO QUESTION THE METHODS

USED TO MONITOR A_ RECIPIENTS

UTILIZATION OF CRITERIA OR METHODS

OF ADMINISTRATION THAT HAVE THE

EFFECT OF SUBJECTING PERSONS TO

TUE os nou 6564 6k Ao bee . 20

TABLE OF CONTENTS - Continued

Page

Iii. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH OPINION IN

Aware GEEe TNS ee ites Ee 24

IV. THE COURT OF APPEALS’ DECISION

BRINGS INTO QUESTION HOW ADVERSE

OF AN IMPACT DOES AGREEMENTS,

ARRANGEMENTS OR OTHER SPECIAL

CONTRACTS, HAVE ON A GROUP

PRAsEeA tee OY TITLE VE. wk ccc ees 27

AMV SAMI & 6 Rooke La EDC 30

APPENDIX

Judgment of the Eleventh Circuit of Appeals

PN es ee BE a een aie Soe pata eae ce I

Order of the Eleventh Circuit of Appeals,

Denying Petition for Stay of the Issuance

of Mandate (filed Nov. 25, 1997)............. 5

Order of the Eleventh Circuit of Appeals,

Denying Petition for Rehearing

RE NOR OI ee Wea. a ea te 9

TABLE OF CONTENTS - Continued

Page

Judgment and Order of the United States

District Court Middle District of Florida

Jacksonville Division

es: UE Me UNEP owe 6 ves bee bh we ee 12

Order of the United States

District Court Middle District of Florida

Jacksonville Division Denying Second Motion to

Amend or Alter complaint

See Se Ey BP ces ksccteseveive ¢ ee

Order of the United States District Court

Middle District of Florida Jacksonville Division

Removing Action From Trial Calendar

ee GE TROT? 6 on cc ve bab been ee ble 24

Opinion in CELOTEX v. CATRETT

477 US 317 No. 85--198(1986) ... cc ccccccccces 26

Opinion in TWIN CITY v. ITT

No. C4-84-1113 (Filed Dec. 11, 1984) .......... 64

RULE 56 - FEDERAL RULES OF CIVIL

ee ere er ee Se er ae ee 74

Appellant’s Petition for Rehearing to the

United States of Appeals Eleventh Circuit

with Affadavits (filed October 22, 1997) ....... 77

TABLE OF AUTHORITIES - Continued

Page

Cases

Celotex Corporation v. Myrtle Nell Catrett,

477 US 317, 91 L Ed 2d 265, 106 Ct 2548,

PO, Sere che oo ae eeecavavee dee 18 - 20

Twin City v. ITT, C4-84-1113( 1984)....... 25 - 26

Brown vy. Crawford,

FOG F.26 G67 (Lite Cir.) (2996) . cc vccvcccveces 25

Association of Mexican American Educators

v. The State of California No. C-92-3874 WHO,

to Pe Se a a oe ee eee ee ee 26,28

Grove City College v. Bell,

MED SUT O UP A cer eecteceseumecundés 20 - 21

Juhn y. Dept. Profession Regulations,

| 6 UM. PTE eTEETTrTErer Te 24

Luis v. Anchorage Asphalt.

UO. Mae MR LESTER oh ob eet eceseceeesees 23

Wood-Hopkins v. Masonry,

NO.M-44, Ist Dist. Fin. (197O) .ccciccccsccccne 23

Hodges by Hodges v. Public Bldg. Com’n of

Chicago, 864 F.Supp. 1493, No. 93 C 4329

GE. cbudese Cbvwe vek tes eeeeheteewwns 22

vii

TABLE OF AUTHORITIES - Continued

page

Federal Material

United States Constitution

Pee. ABV Se ecisecdveceans suse . passim

Public Law 88 - 352 Title VI of the Civil

Rights Act of 1964, as amended......... passim

GE Us Be Cis BOOP bv ce cicicedeesvsocces passim

RUMOGUEEVO COEGOE EZEGO ccc ccc ccncosesecece 30

De CH WORE BOSD cence ec cesecesencéne . 20

cote Be, og | rrr ree ee eo 20, 21

BOGE FUT EAD cc ccccccrenecccaceses 20

BO CEM FOR Fre GEE) ccccccsscesescece . 20

Be CRI ONE DIOMOA) ccc cccceteceseccesss 20

BP Geek BOt SAAB sc ccc cvccecccscteocuses 18

BS Come. Peet EEA) wn ec ccccccces rerrer 21

som; @. f° | | Perrerverrrrerrirar sk 21

io Me fF | PP rere re ERE LEE Eee 21

EAA ER PORG COMMA) cc ccccccesccsaces

viii

TABLE OF AUTHORITIES - Continued

page

29 CUR Past SES). cc cree cc cccesedenecaes 28

49 COR Past 23.5E) oc ccccccvcsecccccecees 14,20

4D CHR Part FSB oc ccc ceca stvcveccesotass 14

BD CUR Past FAS. ccccccececvestesessesen 14

r iw §, fe. ;, Pee OPER EEET CE UOTE CLE. 27

Federal Rule of Civil Procedure ..........+. 18,19

Florida State Material

481.122.5 Florida Statute .......ccecccceeees 15

Jacksonville City Material

Jacksonville Ordinance Code

Chapter 126, Part 401, 404, ........5eeeee- 22

Executive Order No. 87-104 .....2cceeeevees 22

PETITION FOR WRIT OF CERTIORARI

Petitioner Ernest McDuffie, III, ‘pro se’

respectfully requests that a writ of certiorari is

issued to review this order by the United States

Court of Appeals for the Eleventh Circuit issued

September 19, 1997.

OPINIONS BELOW

The opinion of the Court of Appeals for the

Eleventh Circuit is reprinted in the Appendix

commencing at page 1.

“&

JURISDICTION

Jurisdiction before the District Court existed

under 42 U.S. C. 2000d-1. On February 4, 1997,

the District Court entered summary judgment. On

February 28, 1997, the Petitioner filed a notice of

appeal from the judgment. Appellate jurisdiction

existed below under 28 U.S.C. 1291.

On September 19, 1997, the Court of Appeals

for the Eleventh Circuit issued its order under

Title VII, and affirmed the District Court’s Title VI

judgment. On November 5, 1997, the Court of

Appeals modified the order to read Title VI, 42

U.S.C. 2000e from a Title VII case to a Title VI,

reaffirming the District Court’s judgment.

iain ill

ee ee ee

On October 22, 1997, Petitioner filed a_ timely

petition for rehearing. The petition for rehearing

was denied on November 25, 1997. Appendix page 6.

Jurisdiction of this Court exists under, Public Law

88-352, Title VI of the 1964, as amended and 28 U.

S. C. 1254.

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND

REGULATIONS INVOLVED

The Fourteenth Amendment to the United

States Constitution provides in relevant part:

Amendment XIV

Section 1. All persons born or natural-

ized in the United States, and subject to

the jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any state deprive any per-

son of life, liberty, or property, without

due process of law; ror deny to any person

within its jurisdiction the equal protection

of the laws.

Public Law 88 - 352 Title VI of the Civil Rights

Act of 1964, as amended, in relevant part:

Section 601

“No person in the United States shall,

on the ground of race, color, or National

origin, be excluded from participation in,

be denied the benefits, of or be subjected

to discrimination under any program or

activity receiving Federal assistance.”

42 U. S. C. 2000d-4a, provides in relevant part:

“that a “program or activity” (or

just a “program”) includes “all the

operations of” any one of a number of

entities, subject only to the provso that

at least one (or, as the statute provides,

“any”) “part of” that entity’s operations

“is extended Federal financial assistance.”

United States Code Executive Order 12250 of

November 2, 1980, 1-2. Coordination of

Nondiscrimination Provisions, provides’ in_ relevant

part:

Executive Order 12250 1-201(a) (d)

1-201. The Attorney General shall coordi-

nate the implementation and enforcement by

Executive agencies of various nondiscrimina-

tion provisions of the following laws:

(a) Title VI of the Civil Rights Act of

1964 (42 U.S.C. 2000d),

(d) Any other provision of Federal statu-

tory law which provides, in whole or in

part, that no person in the United States

shall, on the ground of race, color, national

origin, handicap, religion, or sex, be excluded

from participation in, be denied the benefits

of, or be subject to discrimination under any

program or activity receiving Federal assis-

ee ae ER

tance.

Code of Federal Regulation, 12 CFR Part 25.4

(b) (2), provides in relevant part:

12 CFR Part 25.4(b)(2),

“Each CRA statement shall include at least

the following, “a list of specific types of

credit within certain categories, such as resi-

dential loans for one to four dwelling units,

residential loans for five dwellings units and

over, housing rehabilitation loans, home im-

provement loans, small business loans, farm

loans, community development loans, commercial

loans, and consumer loans, that the bank is

prepared to extend within the local community.”

Code of Federal Regulation 13 CFR Part 112.2

(b), provides in relevant part:

13 CFR Part 112.2(b)

“The term Federal financial assistance

includes:

(1) Grants and loans of Federal funds;

(2) the grant or donation of Federal property

and interest in property; (3) the detail of

Federal personnel; (4) the sale and lease

of, and the permission to use (on other

than a casual or transient basis, Federal

property or any interest in such property

without consideration, or at a nominal

consideration which is reduced for the

purpose of assisting the recipient, or in

recognition of the public interest to be

served by such sale or lease to the

recipient; and (5) any Federal agreement,

arrangement, or other contract which

has as one of its purposes the

provision of assistance.”

Code of Federal Regulation 13 CFR Part

112.2(d), provides in relevant part:

13 CFR Part 112.2(d)

“The terms applicant and recipient mean,

respectively, one who applies for and one

who receives any of the financial assistance

under any of the statutes referred to in para-

graph (a) of this section, the term recipient

also shall be deemed to include subrecipients of

SBA financial assistance, i.e., concerns which

secondarily receive financial assistance from

the primary recipients of such financial

assistance.”

Code of Federal Regulation, 15 CFR Part 8.4

(1)(b), provides in relevant part:

15 CFR Part 8.4(1)(b)(v)(vii)

A recipient of Federal financial assistance,

or other party subject to this part under any

program to which this part applies, shall not

participate directly or through contractual or

other arrangements, in any act or course of

conduct which, on the ground of race, color,

or national origin:

(v) Treats a person differently from others

in determining whether he satisfies any admis-

sion, enrollment, quota, eligibility, membership,

or other requirement or condition which

persons that meetin order to be provided

any service, financial aid, or other benefit

provided under the program.

(vii) Denies a person the same opportunity

or consideration given others to be selected

as a_ contractor, subcontractor, or sub-

grantee when a program is applicable here-

to.

Code of Federal Regulation, 24 CFR Part 1.4(2)(D,

provides in relevant part:

24 CFR Part 1.4(2)(D

“A recipient, in determining the types

of ... services, financial aid, or other

benefits which will be provided under any

such program or activity, or the class of

persons to whom, or the situations in

which, such ... services, financial aid,

or other benefits will be provided under any

such program or activity, or the class of

persons to be afforded an opportunity to

participate in any such program or activity,

may not, directly or through contractual or

other arrangements, utilize criteria or methods

of administration which have the effect of

subjecting persons to discrimination because

of their race, color, or national origin, or

have the effect of defeating or substantially

impairing accomplishment of the objectives

of the program or activity as respect to

persons of a particular race, color, or

national origin.”

Code of Federal Regulation, 24 CFR Part 570-

601 (a), provides in relevant part:

24 CFR Part 570- 601 (a)

“A recipient may not, treat an individual

differently from others in determining whether

the individual satisfies any admission, enrollment,

eligibility, membership, or other requirement or

condition which the individual must meet in

order to be provided any facilities, services

or other benefit provided under the program

or activity.”

Code of Federal Regulation 24 CFR Part

570.602(v), provides in relevant part:

24 CFR Part 570.602(v)

“A recipient may not, treat an individual

differently from others in determining whether

the individual satisfies any admission, enrollment,

eligibility, membership, or other requirement or

condition which the individual must meet in

order to be provided any facilities, services or

other benefit provided under the program or

activity.”

Code of Federal Regulation 29 CFR Part 31.3(2),

provides in relevant part:

29 CFR Part 31.3(2)

“A recipient, in determining the types of

services, financial aid, or other benefits, or

facilities which will be provided under such

program, or the class of individuals to whom, or

the situations in which, such services, finan-

cial aid, other benefits, or facilities will be

provided under any such program or the

class of individuals to be afforded an oppor-

tunity to participate in any such program,

may not, directly or through contractual or

other arrangements, utilize criteria or methods

of administration which have the effect of

subjection individuals to discrimination be-

cause of race, color or national origin, or

have the effect of defeating or substantially

impairing accomplishment of the objectives

of the program as respects individuals of a

particular race, color, or national origin.”

Code of Federal Regulation 34 CFR Part 100.3(b),

provides in relevant part:

34 CFR Part 100.3(b)

“Specific discriminatory actions prohibited.

(1) A recipient under any program to which this

part applies may not, directly or through

contractual or other arrangements, on ground

of race, color, or national origin::”

Code of Federal Regulation, 34 CFR Part

106.2(h), provides in relevant part:

34 CFR Part 106.2(h)

“Recipient means any State or political

subdivision thereof, or any instrumentality of

a State or political subdivision thereof, any

public or private agency, institution, or or-

ganization, or other entity, or any person, to

whom Federal financial assistance is extended

directly or through another recipient and

a ‘

;

which operates an education program or

activity which receive or benefits from such

assistance, including any submit, successor,

assignee, or transferee thereof.”

Code of Federal Regulation, 49 CFR Part21.5(v)

provides in relevant part:

49 CFR Part21.5(v)

A recipient may not, “treat a person

differently from others in determining whether

the individual _ satisfies any admission,

enrollment, eligibility, membership, or other

requirement or condition which the individual

must meet in order to be’ provided § any

facilities, services or other benefit provided

under the program or activity.”

Code of Federal Regulation, 49 CFR Part 23.5(i),

provides in relevant part:

49 CFR Part 23.5(i)

“Minority means a person who is a citizen

or lawful permanent resident of the United States

and who is:

(a) Black (a person having origins in any of

the black racial groups of Africa. . .);

(f) Members of other groups, or indi-

viduals, found to be economically and socially dis-

advantaged by the Small Business Administration

section 8(a) of the Small Business Act, as amended

(15 U. S. 63(a).”

Rule 56 of Federal Rules of Civil Procedure,

provides in relevant part:

Rule 56(e) of Federal Rules of Civil Procedure

(e) Form of Affidavits; Further Testimony; .. .

Supporting and opposing affidavits shall be

made on _ personal, knowledge, shall set forth such

facts as would be admissible in evidence, and _ shall

show affirmatively that the affiant is competent to

testify to the matters stated therein.

Florida Statute 481.122.5, provides in relevant

part:

Florida Statute 481.122.5

Plans, drawings, specifications and other

related documents prepared by a registered archi-

tect as part of his architectural practice shall be

of a sufficiently high standard to assure the users

thereof against misunderstanding of the

requirement

intended to be illustrated or described by them.

To be of the required standard, such documents

should clearly and accurately indicate the design

of the structural elements and of all other essen-

tial parts of the work to which they refer.

Ordinance Code City of Jacksonville, Florida

Chapter 126, Part 401 and 404, provides in relevant

part:

City Ordinance Chapter 126, Part 401

126.401 Policy of city. It is hereby declared

to be the policy of the city to assure equal oppor-

tunities to every person, regardless of race, relig-

ion, sex, color, age, handicap, or national origin,

in securing or holding employment in a field

of work or labor for which the person is quali-

fied.. It is also the policy for the city that persons

doing business with the city shall recognize and

comply with this policy and will not expend

public funds in a manner as will encourage, per-

petuate or foster discrimination.

Ordinance Code City of Jacksonville, Florida

Chapter 126, Part 404(a), provides in relevant part:

Chapter 126, Part 404)a)

126.404 Nondiscrimination provisions in all city

contracts. All city contracts shall contain the

following provisions:

(a) The contractor represents that he has

adopted and will maintain a policy of nondis-

crimination as defined by ordinance throughout

the term of this contract.

Executive Order No. 87-104, City of Jacksonville,

provides in relevant part:

Executive Order No. 87-104

4.1 Compiiance with State and Other Laws

The Bank shall comply with any and all

applicable federal, state and local laws, rules

and regulations...,

5.1 Non-discrimination provisions

The Bank warrants that it has adopted

and will maintain a policy of nondiscrim-

ination as defined by Chapter 126, Part 4,

Ordinance Code of the City throughout the

term of this Agreement.

STATEMENT OF THE CASE

This litigation was commenced under Title VI of

the Civil Rights Act of 1964, as amended in

December 1995, with the amended complaint filed

January 1996, as a_ challenge to uphold the

nondiscrimination provisions of Public Law 88-352

Title VI of the Civil Rights Act of 1964, as

amended, that “no person in the United States shall,

on the ground of race, color, or national origin, be

excluded from participation in, be denied the

benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial

assistance.”

In June 1996, Petitioner motioned the District

Court for an order compelling discovery. August

1996, Respondent filed their motion for summary

judgment. February 4, 1997, summary judgment

was granted, and on February 28, 1997, the

Petitioner filed a notice of appeal from _ the

judgment. March 4, 1997, the District Court denied

Petitioner’s motion to enter second amended

complaint. On September 19, 1997, the Court of

Appeals for the Eleventh Circuit issued its order

under Title VII, and affirmed the District Court’s

Title VI judgment. On November 5, 1997, the

Court of Appeals modified the order to read the

reference to “Title VII, 42 U.S.C. 2000d” is hereby

modified to read: Title VI, 42 U.S. C. 2000¢,

reaffirming the District Courts judgment.

On November 25, 1997 the Appeals Court denied

Petitioner’s motion for a stay of the issuance of the

mandate pending petition for writ of certiorari.

Petitioner, an 8(a) contractor certified under the

United States Small Business Administration program

eoEEENN eee nee

and a wholly owned, minority contracting company.

The Respondent, serves as a fund depository for the

City of Jacksonville, Florida. ' The bank and the city

receives Federal funds for one or more of the

following programs or activities; Community

Development, Low to Moderate Income housing and

Small Business Administration loans.”

Pursuant to a commitment letter dated May 25,

1990, the First Union agreed to loan St. Andrew

Andrew Missionary Baptist Church $357,000.00 for

the construction of a new facility. Meanwhile, St.

Andrew submitted plans dated 4-1-89 to D&M

Contracting Company,(a small SBA(8)a minority’owner

firm), for pricing and bidding the job. Around

July 9, 1990, D&M, submitted a proposal in the

amount of $350,000 for the church’s construction,

At the request of the Bank’s Real Estate Officer

Master Agreement for General Banking Services Between

The City of Jacksonville and First Union National Bank of Florida,

entered into January 1991, by Mayor Thomas L. Hazouri under

the Authority of Executive Order No. 87-104.

‘ “Receipts via ACH are primarily represented by monthly

distributions of three Categories of State Revenue Sharing, three

categories of HUD Section 8, Community Development Block

Grant drawdowns and distributions from various miscellaneous

federal grants.” Master Agreement for General Banking

Services Between The City of Jacksonville and First Union

National Bank of Florida: XVIII..E., page 25-26.

“Minority means a person who is a citizen or lawful

permanent resident of the United States and who is: (a) Black

(a person having origins in any of the black racial groups of

Africa . . .); (f) Members of other groups, or individuals,

found to be economically and socially disadvantaged by the

Small Business Administration section 8(a) of the Small

Business Act, as amended (15 U. S. 63(a).” 49 CFR Part

23.5(i)(f).

(7/12/90) Chris Raisner, the contract price was

increased to $432,316 to add parking which

would increase the property’s value.

In August 1990, a contract was signed between

St. Andrew and D & M Contracting Company,

after prior approval of the Contractor by the

Bank, a condition stated in the Commitment

Letter.* Upon the approval by the Bank,

payment and performance bonds were submitted,

which was also a condition of the Commitment

Letter.® Shortly thereafter, D&M, dida plan walk

through with the City’s building permitting

authority, however substantial omissions’ on the

plans were identified, which were brought to the

attention of the architect Steve Lazar; the Banks’

Community Development’ Loan Officer, Ramon L.

Day and the borrower St. Andrew. D&M, was

4 “Contractor: The contractor to be used to complete the

improvements shall be subject to the approval of the Bank,

prior to closing of the loan.” Commitment Letter, May 25,

1990, Ramon L. Day, Regional Director of Community

Development Lending.

5 “Performance and Payment Bonds: The construction

contract shall be covered by a “dual obligee” performance

bond and a “dual obligee” labor and material payment bond

in amounts sufficient to cover the costs of the improvement.

Bank approval of the surety of the bonds is required.”

6 «plans, drawings, specifications and other related documents

prepared by a registered architect as part of his architectural

practice shall be of a sufficiently high standard to assure—the

users thereof against misunderstanding of the requirement

intended to be illustrated or described by them. To be of

the required standard, such documents should clearly and

accurately indicate the design of the structural elements and

of all other essential parts of the work to which they refer.

Florida Statute 481.122.5

eeu

informed by the Bank that as long as the building

is constructed according to the City’s Building

Code> and _ St. Andrew agreed there is no problem.

On September 12, 1990, D&M _ signed an agreement

with the Bank, to continue performance of the

construction contract on behalf of the Bank, in the

event of borrowers’ default. Around October 1990,

a second set of plans dated 8/12/90 (amended plans)

surfaced. The amended plans had not been approved

by St. Andrew nor the Bank, as required by the

construction loan agreement Commitment Letter,®

regarding plans and specifications. On October 18,

1990, the building permit was’ issued, to _ the

architect.

On several occasions, the Bank withheld funds

requested by D&M, containing payments for Black

subcontractors. Using the 8/28/90 plans as a _ basis

for withholding. However, payments for the White

subcontractors were paid. In addition to

delaying disbursements, the Bank contacted D&M’s

Surety, Hartford after receiving a letter from

Wayne C. Kelly of M. V. Cummings Engineers,

Inc., an engineering consultant, for the Bank,

advising Hartford, D&M had _ deviated from

approved plans and _ specifications and that the

electrical system installed was unsafe, an allegation

; Community Development Loan Officer responsible for

assuring Bank is reinvesting in the local community, under

the Community Reinvestment Act (CRA). 12 CFR Part

25.4(b)(2)

* “Plans and Specifications: .. the Borrower agrees that no

change will be made in the plans and specifications without

prior consent of the Bank.” Commitment Letter 5/25/90.

later proven false by independent engineer, David

J. Ross of Winter Park, Florida.” As a result

of the Bank’s withholding disbursements of the

construction progress payments, wrongful default,

contacting the Surety, and other interference with

construction contract, D&M an §8(a) approved

contractor, secured a Small Business Administration

loan, through Barnett Bank of Florida, with the

approval of the SBA Program Manager to be used

for the completion of the St. Andrew Project.

The project was scheduled to began August 28,

1990 with completion within 248 calendar days; a

completion date of May 23, 1991. The building

was dedicated and put in use November 17, 1991,

prior to the Bank’s release of $91,828 that was to

represent the final payment on the St. Andrew

contract to the Surety. On December 2, 1991,

Hartford’s representative Edwin G. Clovin, wrote

employee Vice President John G. Munger, asking for

clarification on the disbursed amount stating that

“there would still be $8,811.40 under contract.”

After exhausting all avenues to resolve the issue

through administrative procedures,” D&M

Contracting Company filed a claim.

” “The engineer, came out and literally criticized and said each

one of these things were wrong and not right. In his letter of

July the 6th, I find every one of those items, and I believe there

is seven of them there, they are not acode violation. There is

a reason for every one of them and they still comply with

code. David J. Ross Disposition taken August 29, 1996, page 21,

lines 4-8.

'° Administrative Process: Written complaint filed with

Mayor Ed. Austin,, City of Jacksonville, Florida, 11/22/91;

John H. Atkinson - Office of Comptroller of the Currency,

12/15/91, 1/28/92; Charles EB. Bennett House of

Representatives Congress of the US, 2/24/92; U.S. Department

HUD, 3/3/94; US Department of Justice, 11/8/93.

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The question regarding federal funds was raised

in amended complaint filed January 8, 1996, with

the U.S. District Court Middle District of Florida,

Jacksonville Division, and in the Appellant’s Brief

filed May 1, 1997, with the U. S. Court of

Appeals.

Federal jurisdiction in the United States court of

Appeals for the Eleventh Circuit. Jurisdiction is spe-

cifically conferred on the Court of Appeals by 28 U.

S.C. 1291, Public Law 88-352, Title VI of the 1964,

as amended: District court by 42 U.S. C. 2000d.

REASONS FOR GRANTING THE PETITION

America was built by hardworking individuals

and small family owned businesses attempting to

reach the American dream. The drafters of the

United States Constitution wanted to ensure that

equity, fairness, and impartiality would be a part of

American life (“We the people of the United States,

in order to form a more perfect union, establish

Justice"...),”"" thereby guaranteeing all citizens an

opportunity to life liberty and the pursuit of

happiness.

The success of any firm, small or large depends

on good banking relationships. Banks that have

reached the status of National, often forget or fail

to acknowledge that they are recipients of federal

financial assistance.'” Banks overlook how federal

re Preamble to the Constitution of the United States of America

~ “The term financial assistance includes: (1) Grants and loans

of Federal funds; (2) the grant or donation of Federal property

and interest in property; (3) any Federal agreement, arrangement,

funds are administrated in their organizations, lack

sensitivity to the needs of small and minority business

concerns, and as a_ result, underestimate the far

reaching impact of their noncompliance to

nondiscrimination laws and _ provisions.

I. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH THE U.S. SUPREME

COURTS’ OPINION IN CELOTEX AND

RULE 56 OF THE FEDERAL RULES OF

CIVIL PROCEDURE

Petitioner submitted affidavits pursuant to Rule

56(e), however the Court of Appeals’ opinion do not

reflect that the affidavits of individuals with first

hand personal knowledge were considered.

The Supreme Court in Celotex v. Catrett maintained

that Rule 56(e) of Federal Rules of Civil Procedure,

did not indicate that evidence must be _ structured

for trial, “we do not mean that the nonmoving

party must produce evidence in a form that would

be admissible at trial in order to avoid

summary judgment. Obviously, Rule 56 does not

require the nonmoving party to depose her own

witnesses. Rule 56(e) permits a proper summary

judgment motion to be opposed by any of the kinds

of evidentiary material listed in Rule 56(c), except the

mere pleadings themselves.” ? [477 US 324][5]}.

(a) The motion for summary judgment was filed

prematurely by Respondent. Petitioner filed his

amended complaint January 6, 1996. Seven (7)

or contract which has as one of its purpose the provision of

assistance.” 13 CFR Part 112.2(b).

'’ Rule 56(c) of Federal Rules of Civil Procedure, “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any,...“

—————————eeEEeEeEeEeEeEeEeEeEeEEeEeee

months into the action. Respondent filed for

summary judgment on August 6, 1996. The Court

in Celotex states:

“The Plaintiff in a District Court

cannot claim to have been ‘railroad’

by a premature motion for summary

judgment, where the motion is filed

12 months after the commencement

of action...” headnotes at 6.

Even if the Appeals and District Courts had used

the initial filing date of December 11, 1995, the

summary judgment would still be premature because

the motion would be eight (8) months into the case.

In Celeotex the Court held, “No serious claim can

be made that respondent was “railroad” by a pre-

mature motion for summary judgment, since the

motion was not filed until one year (emphasis added)

after the action was commenced...” syllabus at 1(c)

(b) Petitioner’s witnesses were a part of the

record, prior and when the respondent filed its

premature motion for summary judgment.

The court in Celotex at [477 US 337], addressed the

issue of evidence already a part of the record:

“summary judgment should be denied on the ground

that the moving party failed to satisfy its initial

burden of production.”

In June 1996, the Petitioner revealed his list of forty

five (45) witnesses (exhibit 17)"* as required by the

Case Management Report. Justice White, (Celotex)

in separate opinions agrees that if required to

reveal witness, it should be done, “but he need not

“ Exhibits 1 through 35, referenced in this document were a

part of the record filled with the District And Appeals Courts,

and the Respondent.

also depose his witnesses or obtain their affidavits to

defeat a summary judgment motion asserting that he

has failed to produce any support for his case.”

at 477 US 329

Ii. THE COURT OF APPEAL’S DECISION BRINGS

INTO QUESTION A RECIPIENTS’ UTILIZA-

TION OF CRITERIA OR METHODS OF

ADMINISTRATION THAT HAVE THE EFFECT

OF SUBJECTING PERSONS TO DISCRIMINA-

TION.

The Bank intentionally treated D&M _ different in

the administration of the St. Andrew construction

contract, thereby violating his civil rights, that are

protected under Title VI of the Civil Rights Act, of

1964 as amended, Public Law 88-352, 29 CFR Part

31,.3(2), 15 CFR Part 8.4(1)(b)(v)(vii), 24 CFR Part

570.602(v), 24 CFR Part 1.4, 13 CFR Part 112.2b,d

and 34 CFR Part 106.2(h), and 49 CFR Part 23.5(i).

The Supreme Court, in Grove City College v.

Bell, held that Title VI’s non-discrimination provision

only covered the particular program receiving

Federal funds, the Civil Rights Restoration Act of

1987 went further to include the entire organization

of a Federal funds recipient.’

“Recipient means any State or political

subdivision thereof, or any instrumentality

of a State or political subdivision thereof,

any public or private agency, institution, or

organization, or other entity, or any person,

to whom Federal financial assistance is

extended directly or through another re-

cipient and which operates an education

' Grove City v. Bell, 465 U. S. 555 (1984).

“ ia o> ON ee bs 1h AARP aoe ss

program or activity which receive or benefits

from such assistance, including any submit,

successor, assignee, or transferee thereof.”'®

As of 12/31/91, the Bank showed outstanding SBA

loans totaling 3.5 million and in 1993, SBA

outstanding loans were 21 million dollars (see exhibit

35, page 122). First Union receives funds from their

participation “in the State Housing Initiatives

Partnership(SHIP) and Home Programs. Both

(according to the Bank) programs use government funds

to assist borrowers, (see Exhibit 35, p-124).

First Union National Bank of Florida, also serves

as the fund depository for the City of Jacksonville,

Florida, (see exhibit 35, pp). 132 - 146), the city

receives federal assistance in the form of Community

Block Grants and funds from the Housing and Urban

Development. The Small Business Administration loan

program (CFR 13) and the City of Jacksonville (CFR

15, CFR 24, CFR 29, CFR 49, CFR 34) are recipients

of federal financial assistance and are to comply with

the Title VI coverage, so must the Bank.

U. S. Code, 42 U.S. C. 2000d-4a, provides that

a “program or activity (or just a ‘program’)

includes all the operations of” any one of a

number of entities, subject to the proviso that at

least or (or, as the statue provides, “any”) “part

of” that entity’s operation is extended Federal

financial assistance.” The same principle applies in

this case, so long as any part of that Bank’s

“operations” receive federal financial assistance,”

“all” of that bank’s operations” are “programs or

activities” and are subject to Title VI. The use of

SBA proceeds on the St. Andrew project and the

34 CFR Part 106.2(h)

—_— en

Bank’s participation in the SBA program made the

Bank a co-recipient.

Title VI case “Hodges by Hodges v. Public Building

Commission of Chicago,” No. 93 C 4329. U S District

Court, N.D. Illinois, Eastern Division, Sept. 14, 1994,

where a similar defense of not receiving federal

assistance was given, the Court stated:

“All of the parties place far too much

importance on whether or not the defendants

actually receive federal funding. In the

post CRA era, whether or not an entity

receives federal funds is no longer the sine qua

non of a Title VI action. Consistent with the

broad definition of “program or activity”

courts have rejected such a formalistic approach

in favor of examining the defendant’s relation-

ship to the entity receiving the federal funds.”

The Bank in their agreement with the City of

Jacksonville “warrant” "’ that they had “adopted and

would maintain a policy of nondiscrimination, and

comply with any and all applicable federal, state

and local laws, rules and regulations”."®

The Bank required a (bid, payment, performance)

bond for St. Andrew, when on similar and higher

cost projects built by white contractors no such

demand was made. The Bank withheld funds on

payment request covering African- American

subcontractors even after approval by architect, but

paying those for white subcontractors.”

'’ Executive Order No. 87-104, Master Agreement between

the City of Jacksonville and First Union National Bank.

'® Ordinance City of Jacksonville, Fl, Chapter 126,Parts 401,

404(a).

ai a aa

The Bank insisted that amended plans be used to

construct the facility, even though not approved.”

The issuing of wrongful default based on a third

party, who later would not stand behind the

allegations and disregarding approvals’ of

governmental inspection authorities, even though this

agency is the body charged with inspection and

approval duties. Further, advocating and

recommending St. Andrew to default contractor based

on the omissions of others.

“When an owner gives a contractor a set of plans

and specifications for constructing a building, there

is an implied warranty that the plans and specifications

are of good quality and fit for the purpose intended.”

This theory was supported in Wood-Hopkins

Contracting Co. y. Masonry Contractors, Inc., 235 So

2d 548, No.-44, District Court of Appeal of Florida, First

District, May 26, 1970. On the other hand, the

Luis v Anchorage Asphalt Paving Co., 535 P 2d 11888,

No. 2136, Supreme Court of Alaska, May 21, 1975, case

gives aid, in that “where the contractor knows about

the differences, he/she is obligated to inform the owner

of the omission.” D&M made the Borrower and

the Co-owner (the Bank) aware of the plans.

The vast difference in the two sets of plans and

: the demands from the Bank were unjustified and goes

: against a standard of architect’s care prescribed by

Florida Statute 481.221(5).”!

OSTA ERR AES CEL AERA RE TE NIST YAEL IROL Lp Te ED

; The electrical subcontractor Nathaniel Richardson,”

Charles Wilcox,” the Heating/Air subcontractor,

” Affidavit of Ernest McDuffie, III, Appendix page 131, at par 3.

is Plans and Specifications: Commitment Letter 5/25/90.

*" “Juhn vy. Dept of Professional Regulations, No. AN-305,

District Court of Appeal of Florida, Apr. 14, 1983,”

ss]

and A. B. Coleman of St. Andrew, certified in

their affidavits to the unfair treatment by First

Union.“ The statements of these individuals were a

part of the petition sent to the Appeals Court and

the plaintiff's second motion to amend (alter)

complaint was a part of the record, which the

Supreme Court ruled permissible, plaintiff's could

amend their pleadings to conform to the evidence

under Fed.R.Civ.P, 15(b) even at the appeals

stage.”

Ill. THE COURT OF APPEAL’S DECISION CON-

FLICTS WITH THE OPINION IN TWIN CITY.

* «tT had to seek work outside of area.” “I have never

seen a bank and engineer get so involved,” and “I have

completed other projects, such as schools, airports, and

churches .” “As the only Black state certified electrician in

Florida during this time, the way we were treated nearly

ran me out of business.” Affidavit of Nathaniel Richardson,

page 115, at paragraph 5,6.

* “It was a bad situation with First Union on St. Andrew.

The Church was the one paying for the equipment, but the

bank along with the architect and engineer wanted them to

have something also. The project gave Mr. McDuffie and

his subcontractors in Jacksonville, a bad name making

work hard to obtain. As a result Bill Refrigeration had to

close its doors, and I found employment _ elsewhere.

Affidavit of Charles Wilcox, page 118, at paragraph 5.

«There seemed to be two standards being applied: one for

black contractors and the other for white contractors, on the

project." “There were two set or more sets of plans,

The motivation behind the letters from the engineer was

unfair and suspicions... and the bank withheld approved

payments.” “ In my eyes Rob Dunn was First Union... his

actions towards us seemed to be negative and discriminatory.”

Affidavit of A. B. Coleman, page 99-100, paragraphs. 6, 7, 8, 9.

* Brown v. Crawford, 906 F.2d 667 ( 11th Cir.) Footnote 2.

oe]

Tak IRR

al Aa oe es Wah ae ey

Bishi n ES

Factors in determining if D & M has standing

to bring action against the Bank, rest upon if either

the duty owed or the intent to benefit is met.

The court in Twin City Construction Company y. ITT

Industrial Credit Co., No. C4-84-1113, Court of Appeals

of Minnesota, Dec. 11, 1984., states:

“a construction loan agreement was intended

for the benefit of the contractor +... even

though there was the provision that no third

party was entitled to rely on any provisions in

the agreement.”

D &M_ agreed to construct St. Andrew church. The

duty owed” by St. Andrew was the obligation to

pay for the church. That duty was assumed

by the Bank when it committed itself to the

construction loan. Having assumed the obligation, it

proceeded to discharge the duty owed by St.

Andrew by paying D & M some of the progress

payments. Thus, the Bank’s performance under the

contract discharged a duty owed D & M by St.

Andrew; the duty-owed test was met.

The intent to benefit test is met if the contract

expresses some intent by the parties to benefit the

third party through contractual performance. The

requirement of the Bank to approve the contractor

prior to loan closing, the signing of a Contractor’s

" Duty owed: “The duty owed test is met if the promisor’s

performance under the contract discharges a duty otherwise owed

the third party by the promisee. The intent to benefit test is met,

if the contract expresses some intent by the parties to benefit the

third party through contractual performance...” Twin City

Construction Company of Fargo, N.D. v. ITT Industrial Credit

Company No. C4-84-113.

: a i i le

agreement that subordinated D & M’s interest and

the posting of a performance and payment bond

made D&M apartytothe construction loan with

third party beneficiary rights,” despite the Bank’s

third party disclaimer. Additionally, stated under

the Bank’s Real Estate Loan Continuation

Agreement, “the contractor’s agreement is a condition

to the making of the loan and that the contractor

derives a direct economic benefit from the loan being

made.” (See Exhibit 35, p. 109). The posting of

$10,000.00 for the three bonds by D&M and the

signing of the Continuation agreement, gave the

contractor standing.

In the case Association of Mexican American

Educators v. The State of California Commission on

Teacher Credentialing. No. C-92-3874 WHO, U.S.

District Court, N. D. California, Aug. 25, 1993, the

Court states:

“Plaintiffs under Title VI of Civil Rights

Act, which prohibits use of federal funds

to subsidize racial discrimination, may

maintain private right of action based

on administrative regulations promulgated

pursuant to Title VI; Supreme court has

held that those regulations are valid and

that they further congressional purpose of

withholding federal funds from discrimina-

tory practices.”

*7 “A third party beneficiary is one to whom the promisee owes or

is believed to owe a duty which is discharged by the promissor’s

performance, and the contractual right the third party beneficiary

acquires is to enforce a promise made for his benefit which he

otherwise would not be able to enforce. Twin City Construction

Company of Fargo, N.D. v. ITT Industrial Credit Company No.

C4-84-113.

OPE aR gl tS. I PPE LS SERA

ie ed

FEE oS A 8 Ca A STR ee Set SE

IV. THE COURT OF APPEAL’S DECISION

BRINGS INTO QUESTION HOW ADVERSE

OF AN IMPACT DOES AGREEMENTS,

ARRANGEMENTS OR OTHER SPECIAL

CONTRACTS, HAVE ON A GROUP PRO-

TECTED BY TITLE VI.

The final issue to be consider is whether the

Bank’s actions had a disproportionate adverse

effect on a group protected by Title VI. The

requiring and then attacking the bonding capability

of Black African Americans is a practice that

prevent the growth and marketability of small

businesses, The Respondent made no _ bond

requirement on similar and higher cost projects built

by white contractors. For example, First Timothy

Baptist Church ($750,000.00) constructed by John

Stokes Company; and Saint Paul African Methodist

Episcopal Church ($2,100,000.00) built by

Benchmark Companies.” Respondent argues that

posting a bid, payment, and performance bond is

usual in these types of transactions. However, if

this is the practice, why was a different criteria or

requirement applied for D & M Contracting

Company?” -

- Appellant’s Petition for Rehearing, Appendix pp 77-83, 130-135

” Public Law 88-352, Title VI, of the Civil Rights Act of 1964, as

amended: “No person in the United States shall, on the ground of

race, color, or National origin, be . . . subjected to discrimination

under any program or activity receiving Federal assistance.”

*° 49 CFR Part21.5(v) “A recipient may not, “treat a person

differently from others in determining whether the individual

satisfies any admission, enrollment, eligibility, membership, or

other requirement or condition which the individual must meet

in order to be provided any facilities, services or other

benefit provided under the program or activity.”

The District Court nor the Appeals Court

addressed the issue of First Union utilizing,

“criteria or methods of administration which have

the effect of subjection individuals to

discrimination.”

The bank holds a pivotal position in the

business community and could help to reduce the

disparity between 7 Black and 656 white General

contractors, in the local community. A bondable

general contractor maybe able to employ a_ large

work force, engage innumerable subcontractors

who in turn employ a __ substantial work force

within the community. Bondability and bank

support are key factors. Over 95 percent of the

workforce on the St. Andrew project were African

American livings in the local community.

The Bank’s history in dealing with minority

issues speak to the far reaching effect of the

organization’s corporate business practices.

Discrimination cases filed in Winter Garden, Florida,

1990, protest in Orlando, Florida and Charlotte, the

Bank’s Corporate Headquarters, are indicative of the

lack of sensitivity to Blacks and minorities. Federal

law prohibits using federal funds to _ subsidize

discrimination according to Association of Mexican

American Educators v. The State of California

Commission on Teacher Credentialing. No. C-92-3874

WHO, U.S.,District Court, N. D. California, Aug. 25,

1993, “held that Title VI itself forbade the used of

Federal funds, in programs with a _ discriminatory

effect, regardless of the purpose behind the

program.”

The District Court in its order of February 4,

1997, writes: “it may very well be that Plaintiff was

*'29 CFR Part 21.3 (2).

;

ss I

(oe

FE et PR EE SPL Dail Del aah @,

mistreated in some respect by the

Defendant; however, based on the current

record, a reasonable jury could not find that

such mistreatment was the result of intentional

discrimination based on Plaintiff's race and/or

color or that Defendant’s actions had a dis-

proportionate impact on African Americans.”

The Petitioner’s rights of equal protection of the

laws and due process, under the Fourteenth

Amendment of the Constitution of the United States

were violated. Affidavits of African-American directly

involved and affected by the “mistreatment” were

never considered by the Appeals Court, yet affidavits

used by the Defendant were considered as evidence

to properly support a premature motion for

summary judgment in the District Court. The

Appeals Court affirmed the lower court’s order.

Legal fairness was not applied as one would expect

pursuant to the Fourteenth Amendment.

As a national bank,” a federal funds recipient,

and one of the largest commercial banking

institutions in Florida, the bank’s obligation to

uphold federal laws should be paramount, since

the impact of their actions affect not just a city

or state but individuals nationwide. First Union

* “Consolidated assets of $72.3 billion, controls eight banks in

North Carolina: Georgia; South Carolina: Florida; Virginia:

Washington, D.C.: Maryland; and Tennessee. First Union is the

second largest commercial banking organization in Florida, with

its subsidiary depository institutions controlling , $21.4 billion in

deposits, representing approximately 12.3 percent of the total

deposits in depository institutions in the State.” Federal Reserve

System, Order Approving Application to Acquire and Merge a

Savings Association Into a Subsidiary Bank, Board of Governors,

July 1, 1994,

control banks in North Carolina, South Carolina,

Florida, Virginia, and the District of Colombia,

all of which have African American population.

Just as the Attorney General is charged with the

coordination of various nondiscrimination

provisions, the Bank had a similar duty. That

duty was to ensure all entities, operations,

branches, offices and subsidiaries abide by the

nondiscrimination laws, regardless of the location

of the branch, office, entity, operation, or

subsidiary. The impact of the day to day business

practice of utilizing “criteria or methods of

administration that have the effect of subjection

individuals to discrimination,” is forbidden by

Title VI.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Ernest McDuffie, III, pro se

8803 Yeoman Drive

Jacksonville, Fla 32208

March 1998 904-765-3149

3 Executive Order 12250 1-201(a) (d) 1-201. “The Attorney

General shall coordinate the implementation and enforcement

by Executive agencies of various nondiscrimination provisions

of the following laws: (a) Title VI of the Civil Rights Act

of 1964 (42 U.S.C. 2000d),.. (d) Any other provision ol

Federal statutory law which provides, in whole or in part,

that no person in the United States shall, on the ground of

race, color, national origin, handicap, religion, or sex, be

excluded from participation in, be denied the benefits of, or

be subject to discrimination under any program or

activity receiving Federal assistance.”

499 CFR Part 31.3 (2).

eneemmeneenieneneeeiniaiiiiiuial

appendix |

DO NOT PUBLISH)

September 19, 1997

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 97-2263

Non-Argument Calendar

D. C. Docket No. 95-01210-CIV-J-20B

ERNEST McDUFFIE, III,

individually d.b.a.

D & M Contracting Co..,

Plaintiff-Appellant,

versus

FIRST UNION NATIONAL BANK

OF FLORIDA

Defendant-Appellee.

Appeal from the United States District Court for the

Middle District of Florida

(September 19, 1997 )

Before HATCHETT, Chief Judge, EDMONSON and

CARNES, Circuit Judges.

PER CURIAM:

appendix 2

Ernest McDuffie, Ill, filed a lawsuit against First

Union National Bank alleging violation of Title VII,

42 U. S. C. 2000d. The district court granted sum-

mary judgment for First Union, and McDuffie ap-

peals. We agree with the district court that even

assuming First Union had receive federal financial

assistance with respect to the loan involved in this

case and McDuffie has standing to bring this action,

First Union is still entitle to summary judgment,

because McDuffie has not made out a prima facie

case of discrimination.

AFFIRMED.

Ernest McDuffie \P

8803 Yeoman Drive

Jacksonville, Fl 32201-3315

RE: 97-2263McDuffie v. First Union NationalDIST,

CT.NO.-95-01210 CIV-J-20B

Other addressees: Richard D. Sletten

Hon. Harvey E. Schlesinger

E. Lanny Russell

appendix 3

September 19, 1997

IN THE UNITED STATES COURT OF APPEALS

NO. 97-2263

Non-Argument Calendar

D. C. Docket No. 95-01210-CIV-J-20B

ERNEST McDUFFIE, III,

individually d.b.a.

D & M Contracting Co.,

Plaintiff-A ppellant,

versus

FIRST UNION NATIONAL BANK

OF FLORIDA

Defendant-Appellee.

Appeal from the United States District Court for the

Middle District of Florida

Before HATCHETT, Chief Judge, EDMONDSON and

CARNES, Circuit Judges.

JUDGMENT

This cause to be heard on the transcript of the

record from the United States District Court for the

Middle District of Florida, and was taken under

appendix 4

submission by the Court upon the record and briefs

on file, pursuant to Eleventh Circuit Rule 34-3;

UPON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court that the

judgment of the said District Court in this cause be

and the same is hereby AFFIRMED;

IT IS FURTHER ORDERED THAT plaintiff-

appellant pay to defendant-appellee, the costs on ap-

peal to be taxed by the Clerk of this Court.

Entered: September 19, 1997’

For the Court: Miguel J. Cortez, Clerk

BY: Matt Davidson

Deputy Clerk

ISSUED AS MANDATE: 11/25/97

appendix 5

November 25, 1997

Ernest McDuffie\P

803 Yeoman Drive

Jacksonville, Fl. 32201-3315

RE: 97-2263 McDuffie v. F irst Union National

DIST.CT.NO -95-01210 CIV-JB

Other addressees: Richard D. Sletten

E. Lanny Russell

appendix 6

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO, 97-2263

November 25, 1997

ERNEST McDUFFIE, III,

Plaintiff-Appellant,

versus

FIRST UNION NATIONAL BANK

OF FLORIDA

Defendant-Appellee.

On Appeal from the United States District Court for

the Northern District of Florida

ORDER:

(f) The motion of Appellant, ERNEST MCDUFFIE,

Ill, for stay of the issuance of the mandate pend-

ing petition for writ of certiorari is DENIED.

( ) The motion of Appellant, ERNEST MCDUFFIE,

Ill, for stay of the issuance of the mandate pend-

ing petition for writ of certiorari is GRANTED to

and including , the stay to continue in

force until the final disposition of the case by the

Supreme Court, provided that within the period

above mentioned there shall be filed with the Clerk

of this Court the certificate of the Clerk of the Su-

preme that the certiorari petition has been filed, The

Clerk shall issue the mandate upon the filing of a copy of

an order of the Supreme Court denying the writ, or upon

ES]

“a

appendix 7

expiration of the stay granted herein, unless the above

mentioned certificate shall be filed with the Clerk of this

Court within that time.

( }) The motion of Appellant, for a further stay of the

issuance of the mandate is granted to and including , un-

der the same conditions as set forth in the preceding

paragraph,,.

( ) IT is ordered that the motion of appellant, , for a

further stay of the issuance of the mandate is denied.

UNITED STATE CIRCUIT JUDGE

ORD-45

appendix 8

United States Court of Appeals

Eleventh Circuit

56 Forsyth Street,N. W.

Atlanta, Georgia 30303

Thomas K. Kahn November 25, 1997

Clerk

In Replying Give Number of Case and

Names of Parties

Richard D. Sletten

Clerk, U.S. District Court

311 West Monroe, Room 110

Jacksonville, F132201

RE: 97-2263 McDuffie v. First Union National

DC DKT No.: 95-01210 CIV-J-20B

The motion for stay of mandate has been denied. The

enclosed certified copy of the judgment and a copy of this

court’s opinion are hereby issued as the mandate of this

court.

Also enclosed are the following:

™) Original Exhibits, consisting of four boxes

] Original record on appeal or review, consisting of

two volumes.

Please acknowledge receipt on the enclosed copy of this

letter.

Sincerely,

THOMAS K. KAHN, Clerk

Reply To: Anne Shadinger 404-331-5440

seeremeerenemneemnnnsiaatianaasanimmseeiiiiiaeaiiiiaaiill

eee

appendix 9

Encl. MDT-1 (2/92)

IN THE UNITED STATES COURT OF APPEALS

NO. 97-2263

November 5, 1997

ERNEST McDUFFIE, III,

Plaintiff-Appellant,

versus

FIRST UNION NATIONAL BANK

OF FLORIDA

Defendant-Appellee.

Appeal from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING

Before HATCHETT, Chief Judge, EDMONSON and

CARNES, Circuit Judges.

PER CURIAM:

In the first sentence of our September 19,

1997 opinion in this case, the reference to “TITLE

Vil, 42 U. S.C 2000d” is hereby modified to read:

“Title VI, 42 U. S.C. 2000e.”

reer

appendix 10

In all other respects the petition for a rehearing

is DENIED.

November 5, 1997

Ernest McDuffie \P

8803 Yeoman Drive

Jacksonville, Fl 32201-3315

RE: 97-2263McDuffie v. First Union National —

DIST, CT.NO.-95-01210 CIV-J-20B

Other addressees: Richard D. Sletten

Hon. Harvey E. Schlesinger

E. Lanny Russell

TOA EN EET EY

appendix 11

United States Court of Appeals

Eleventh Circuit

56 Forsyth Street,N. W.

Atlanta, Georgia 30303

Thomas K. Kahn November 5, 1997

Clerk

In Replying Give Number of Case and

Names of Parties

MEMORANDUM TO COUNSEL OR PARTIES:

RE: 97-2263 McDuffie v. First Union National

DC DKT No.: 95-01210 CIV-J-20B

The enclosed order has been entered on petition(s)

for rehearing.

See Rule 41, Federal Rule of Appellate Procedure,

and Eleventh Circuit Rule 41-1 for information re-

garding issuance and stay of mandate.

Sincerely,

THOMAS K. KAHN, Clerk

Reply To: Ed McElhenney (404) 331-6147

Encl. REHG-1(7/87)

appendix 12

United States District Court

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

February 4, 1997

JUDGMENT IN A CIVIL CASE

Ernest McDuffie, III

individually d.b.a.

D & M Contracting Company

v. CASE NUMBER: 95-1210-Civ-J-20B

First Union National Bank OF

FLORIDA.

( ) Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and

the jury has rendered its verdict.

( ) Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

Pursuant to the Court’s order entered February

4, 1997, Judgment is hereby entered in favor of

Defendant.

February 5, 1997 Richard D. Sletten

Date Clerk

Counsel notified

(By) /Deputy Clerk

he oe ie VS

appendix 13

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ERNEST McDUFFIE, III,

individually d.b.a.

D & M Contracting Co.,

Plaintiff,

v. Case No. 95-1210-Civ-J-20B

FIRST UNION NATIONAL BANK

OF FLORIDA

Defendant.

ORDER

Before the Court are Defendant’s Motion for

Summary Judgment (Doc. No. 25, filed August 6,

1996), Plaintiff's Motion for an Order Denying De-

fendant’s Motion for Summary Judgment (Doc. No.

40, filed September 16, 1996; “Plaintiff's Response”’)

' and Defendant’s Motion for Leave to File Response

to Plaintiff's Motion for Order Denying Summary

Judgment Motion (Doc. No. 42, filed September 25,

1996. Defendant’s Motion for Leave to File Response

is GRANTED.

Prior to filing his response, the Plaintiff was sent a copy

of this Court’s Order describing the summary judgment pro-

visions found in Rule 56 of the Federal Rules of Civil Pro-

cedure and warning the Plaintiff about a failure to comply.

See Order (Doc. No. 34, filed August 16, 1996).

appendix 14

DONE AND ORDERED at Jacksonville, Flor-

ida, this 4th day of February, 1997.

FACTS

Pursuant to a commitment letter dated May

25, 1990, and a Construction Loan Agreement dated

September 12, 1990, First Union National Bank

(“First Union”) agreed to loan St. Andrew Mission-

ary Baptist Church (“St. Andrew”) in excess of

$4000,000 for the construction of a new church. See

Affidavit of Robert H. Dunn (Doc. No. 30, filed

August 6, 1996; “Dunn Aff,”) at 44 and Exhibits

A, B. According to the Defendant, the loan was a

conventional commercial bank loan that was not fed-

erally funded and was not made under any program

or activity receiving federal financial assistance.

Dunn Aff. at ¢ 5; Affidavit of John G. Munger

(Doc. No. 31, filed August 6, 1996; “Munger Aff. “)

atq 5. Additionally, the Commitment letter ex-

pressly states “No person who is not a part to this

Commitment shall have or enjoy any rights under

this Commitment. Also, all third-party beneficiary

rights are expressly negate.” Dunn Aff., Exhibit A.

Thereafter, St. Andrew hired, and First Union

approved, Plaintiff Ernest K. McDuffie, II

(“McDuffie”) as the general contractor to construct

the building. McDuffie was required by the loan

documents to obtain a performance bond to indem-

nify First Union and St. Andrew in the event

McDuffie failed to perform as required in the Con-

tract. Dunn Aff. at¢12. In the event McDuffie

failed to perform. First Union had the right to no-

tify the surety --- Hartford insurance Company

(“Hartford”) of McDuffie’s default. See Dun, Aff.,

Exhibit E.

PSPS FATEE PASE LOPS OO We!

appendix 15

During construction and on a few occasions,

the Defendant delayed disbursing funds requested by

the Plaintiff. See Plaintiff's Exhibit 19 (received

January 2, 1997) at pp. 104-119, According to the

Defendant, it did so because the work for which the

funds were requested was not done according to the

approved plans and Specifications. Dunn Aff. at ¥

14; Munger Aff. atq 15. First Union ultimately

paid the balance of the loan. Munger Aff. at aS Ba

In addition to delaying disbursement, First

Union contacted Hartford after receiving a letter

from Wayne C., Kelly, President of M. V. Cum-

mings Engineers, Inc., an engineering consultant,

advising First Union that McDuffie had substantially

the church and that the electrical system installed by

McDuffie was unsafe. Dunn Aff., at $13.

As a result of First Union’s delay in the dis-

bursement of the loan proceeds, contacting Hart-

ford, and other actions “interfering with the con-

struction contract,” Plaintiff filed this lawsuit on De-

cember 11, 1995, claiming that First Union violated

Title VI of the Civil Rights Act of 1964, 42 U.S.C.

200d et seq. McDuffie Specifically asserts in his re-

sponse to Defendant’s motion that First Union inten-

tionally treated him differently in the administration

of the construction contract by 1) requiring three

bonds, 2) insisting that the facility be built according

to plans and specifications not used in bidding,

pricing, or bonding the contract, 3) withholding con-

struction funds even though approved, 4) calling for

default based on faulty and misleading information,

and 5) disregarding their March 1, 1988 Real Estate

Policies and Practice of providing evidence of gov-

appendix 16

ernmental approval and plan comparison. Plaintiff's

Response at pp. 29-30.

DISCUSSION

Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories and

admissions on file together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled

to judgment as a matter of.” Red. R. Civ. P.

S6(c). The moving party bears the initial burden of

showing the Court, by reference to materials on file

that there are no genuine issues of material fact

that should be decided at trial. Clark v. Coats &

Clark, Inc., 929 F. 2d 604, 608 (lith Cir. 1991).

When a moving party has discharged its burden,

the nonmoving party must then “go beyond the

pleadings,” and by its own affidavits, or by

“depositions, answers to interrogatories, and admis-

sions on file,” designate specific facts showing that

there is a genuine issue for trial. Celotex Corp, v.

Catrett, 477 U.S. 317, 324 (1986).

In determining whether the moving party has

met its burden of establishing that there is no

genuine issue as to any material fact and that it is

entitled to judgment as a matter of law, the Court

must draw inferences from the evidence in the light

most favorable to the nonmovant, Key West Harbor

vy. City of Key West, 987 F. 2d 723, 726 (llth Cir.

1993), and resolve all reasonable doubts in that

party’s favor, Spence v. Zimmerman, 873 F. 2d 256,

257 (llth Cir. 1989).

Thus, if a reasonable fact finder evaluating

the evidence could draw more than one inference

ge ——E

nee ’ te eld wares Pts. 2 ign iicaa ees ei ae Stick Si

Rp TE SAS iets oa dahil wh dy, ER A a i ED es oc ABE ES RA ella BE tel Dali 2h WE a OREM Be chs

i MARIS BLL iW Se A ATURE ETE RS Ai OR RN A TOA Ti i

appendix 17

from the facts, and if that inference introduces a

genuine issue of material fact, then the court should

not grant the summary judgment motion. Augusta

Iron and Steel Works y. Employers Insurance of

Wausau, 835 F. 2d 855, 856 (llth Cir. 1988). |

must be emphasized that the mere existence of some

alleged factual dispute will not defeat an otherwise

properly supported summary judgment motion.

Rather, “the requirement is that there be no genu-

ine issue of material fact.” Anderson y. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute

about a material fact is “genuine” if the “evidence

is such that a reasonable jury could return a_ver-

dict for the nonmoving party.” Id, at 248. The in-

quiry is “whether the evidence presents a_ sufficient

disagreement to require submission to a jury or

whether it is so one-sided that one party must pre-

vail as a matter of law.” Id. at 251-52.

In its Motion, the Defendant make five ar-

guments for summary judgment: 1) Title Vi has no

application because First Union received no_ federal

financial assistance; 2) Title Vi has no application

because Plaintiff has no Standing to bring this ac-

tion; 3) The statue of limitations has expired,’ 4)

Plaintiff has failed to make a prima facie showing

of discrimination; and 5) Tittle BI does not prevent

discrimination based on economic or minority busi-

ness status. Having considered the Defendant’s Mo-

tion and the Plaintiff's Response, and having read

the Court finds that the Defendant has not shown that

Plaintiff's Complaint is barred by the four year statue of

limitations

appendix 18

the supporting affidavits and filed depositions, the

Court concludes that Defendant is entitled to judg-

ment as a matter of law.

The Plaintiff alleges that Defendant discrimi-

nated against him because of his race, color, eco-

nomic status, and minority business status in viola

tion of Title VI of the Civil Rights Act of 1964, 42

U.S. C. 2000d et seq. and 12 Code of Federal

Regulations (“CFR”) Part 25.7(f), 29 CFR Part 31, 49

CFR Part 21.5, 41 CFR Part 60, and 15 CFR Part 8.

See Amended Complaint (Doc. No. 9, filed January

8, 1996). The Court notes that 12 CFR Part 25.f(f)

and 41 CFR Part 60 were not promulgated pursuant

to Title VI.

Under Title VI, “No person in the United

States shall, on the ground of race, color, or na-

tional origin, be excluded from participation in, be

denied the benefits of, or be subjected to discrimi-

nation under any program or activity receiving Fed-

eral financial assistance.” 42 U.S.C 2000d.

As the statute makes clear, and as stated in

the case law, Plaintiff must demonstrate that Defen-

dant was a recipeint of federal financial assistance.

See Dowdell b. City of Apopka, Fi., 511 F. Supp.

1375 (M.D. Fla. 1981), aff'd, 698 F.2d 1181 (11th

Cir. 1982). In Dowdell, the Plaintiffs were able to

satisfy this requirement by showing that “the City

of Apopka has _ received federal revenue _ sharing

funds and... that these funds have been used to

construct or improve municipal services.” Id. at

1384. In the present case, two bank officials state

that the loan was a conventional commercial bank

loan that was not federally funded and was not

EWP E

BS epee COR oF Gh AN

(i EG ih a OR aha oa

EDR PAS

TAB LEC IE ane

appendix 19

made under any program or activity receiving fed-

eral financial assistance. Dunn Aff. at q 5; Munger

Aff., at]? 5. On the other hand, Plaintiff has iden-

tified a First Union interoffice memorandum which

Suggests that “Community Development Lending

Consideration” were factored into the decision to

make the loan. See Plaintiff's Exhibit 20, pp, 49-

51. Standing alone, however, this document is not

probative of First Union receiving federal financial

assistance. See, e.g., Steptoe vy. Savings of America,

800 F. Supp, 1542, 1548 (N. D. Ohio 1992) (“The

mere fact that (Defendant) is bound by certain fed-

eral statutes or Participates in certain federal pro-

grams is insufficient to give plaintiffs Standing to

bring a claim under 42 U.S.C. 2000d.”). Plaintiff's

remaining arguments on_ this issue are likewise un-

persuasive. Accordingly, the Court concludes _ that

Plaintiff has not shown there to be a genuine issue

as to whether First Union received federal financial

assistance, and therefore Title VI is inapplicable.

Even had the bank been provided federal

funds so that Title VI is applicable, the Court is

not convinced that Plaintiff has Standing. To bring

an action under Title VI, a plaintiff must demon-

Strate that he was “the intended beneficiary of, an

applicant for, or a participant in a federally funded

program.” Doe on Behalf of Doe v. St. Joseph’s

Hospital, 788 F.2d 411, 418-19 (7th Cir. 1986). St.

Andrew, and not Plaintiff, was the applicant for

and the intended beneficiary of the First Union

loan. See Dunn Aff., Exhibit A. Further, based on

Vakhara y. Swedish Covenant Hospital, 824 F. Supp,

769 (N. D. Ill, 1993), this Court concludes that, in

the context of this case, a “participant” in the fed-

erally funded program must be the borrower of the

appendix 20

funds. To hold otherwise would be to swing open

the doors of the Courthouse and invite lawsuits that

Congress never intended.

Even assuming that Defendant received fed-

eral financial assistance with respect to the loan and

that Plaintiff may properly bring this action, Defen-

dant must still be granted summary judgment, as

Plaintiff has not made a prima facie case of dis-

crimination. Title VI bars only intentional discrimi-

nation. Elston v. Talladega County Board of Edu-

cation., 997 F. 2d 1394, 1406 (llth Cir. 1993).

However, when regulations are promulgated pursuant

to Title VI, they “may validly proscribe actions

having a disparate impact on groups protected by

the statute, even if those actions are not intention-

ally discriminatory.” Id. (citation omitted). The

regulations cited by the Plaintiff appear to proscribe

actions “having a disparate impact on groups pro-

tected by the statue.” See 15 CFR Part 8, Subpart A,

sec, 8.4 (b) (2) - (3) and compare with Elston, 997 F.

2d at 1407 n. 12 (quoting relevant Department of

Education Title VI regulations for purpose of dispa-

rate impact standard.

As stated in Elston, “[t]o establish liability

under the Title VI regulations disparate impact

scheme a plaintiff must ... demonstrate by a_pre-

ponderance of the evidence that a facially neutral

practice has a disproportionate adverse effect on a

group protected by Title VI.” 997 F.2d at 1407.

This the Plaintiff has not done. Plaintiff has merely

repeated throughout this pleading that Defendant

discriminated against him in violation of his race

and color. These conclusory allegations are insuffi-

i Na

appendix 21

cient to defeat Defendant’s properly supported mo-

tion for summary judgment. See, e. g., Elliottt y.

Group Medical & Surgical Service, 714 F. 2d 556, 564

(Sth Cir. 1983), cert, denied, 467 U.S. 1215 (1984).

The Court recognizes that Plaintiff has filed with

Court a large number of documents concerning his

lawsuit; however, he has not identified one document

showing that the Defendant’s actions had dispropor-

tionate effect? on African Americans or that race

played any role whatsoever in Defendant’s actions

vis-a-vis the construction of St. Andrew Church. Nor

has the Court found any such evidence after con-

ducting an independent review of the record.”

Further, Title VI provides relief only from

discrimination based on race, color, or national ori-

gin; discrimination against Plaintiff's minority busi-

ness status and economic status cannot be the basis

for an action under Title VI, even had Plaintiff

Regardless of the legal standard applied by the Court, jJudg-

ment must be entered in favor of Defendant: Plaint had not

brought forth any direct or circumstantial evidence of inten-

tional discrimination on the basis of his race and/or color

‘The Court notes that the discovery deadline has passed, see

Case Management Report (Doc. No. 14, filed February 20, 1996) at

pp. 5, 7, and that Plaintiff is aware that the discovery deadline has

passed.. See Deposition Transcript of Ernest K. McDuffie. II] (Doc

No. 29, filed August 6, 1996) at p. 209. Although the Plaintiff may

believe that there are relevant documents in Defendant's possession

that will evidence a “pattern of discriminate,” id at pp. 204, 209-10,

the Court's Cast Management and Scheduling Order Clearly states

that “All requests and motions pertaining to discovery shall be filed

So that the discovery desired will be due prior to the completion date

and any disputes which require [] Court intervention shall be made

by proper motion immediately.” Case Management and Scheduling

Order (Doc. No. 15. filed February 27, 1996), at p. | The

Plaintiff has never filed such a motion.

appendix 22

brought forth evidence of such discrimination. See 42

U. S.C. 2000d; grimes by and through Grimes v.

School, 832 F., Supp, 704, 711 (S.D.N.Y. 1993) (“

Title VI is restricted to race, color, and national

origin discrimination.”), aff'd 37 F. 3d 857 (2d Cir.

1994). It may very well be that Plaintiff was mis-

treated in some respect by the Defendant; however,

based on the current record, a reasonable jury

could not find that such mistreatment was the result

of intentional discrimination based Plaintiff's race

and/or color or that Defendant’s actions hada dis-

proportionate impact on African Americans.

Accordingly, Defendant’s Motion for Summary

Judgment GRANTED. The Clerk shall enter judg-

ment in favor of Defendant and shall close the file.

DONE AND ORDERED at Jacksonville, Flor-

ida, this 4th day of February, 1997,

‘Harvey E. Schesinger

United States District Judge

Copies to:

Ernest McDuffie, III

Michael Freeed, Esq.

Garry Randolph

Law Clerk

appendix 23

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

March 4, 1997

ERNEST McDUFFIE, ITI,

individually d.b.a.

D&M Contracting Co.,

Plaintiff,

v. Case No. 95-1210-Civ-J-20B

FIRST UNION NATIONAL BANK

OF FLORIDA

Defendant.

ORDER

Plaintiff's Motion for an Order to Amen or

Alter Court Judgment (Doc. No. 63, filed February

14, 1997) and Petition to Court to Enter Second

DONE AND ORDERED at Jacksonville, Florida

this 4th day of March, 1997,

Harvey E, Scheslinger

United States District Judge

Copies to:

Ernest McDuffie, III

Michael Freeed, Esq.

Garry Randolph

Law Clerk

appendix 24

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

_Filed: January 9, 1997

individually d.b.a.

D & M Contracting Co.,

Plaintiff,

v. Case No. 95-1210-Civ-J-20B

FIRST UNION NATIONAL BANK

OF FLORIDA

Defendant.

ORDER

Before the Court are Defendant’s Second

Motion to Remove Action from Trial Calendar

Pending Resolution of Dispositive Motion (Doc. No.

51, filed December 23, 1996) and Plaintiff's Motion

for an Order Denying Defendant’s Second Motion to

Remove Action from Trial Calendar (Doc. 52, filed

January 3, 1997; “Plaintiff's Response”). Defendant’s

Motion is Granted. The Clerk will remove this ac-

tion from the trial calendar pending resolution of

Defendant’s dispositive Motion.

The Court expects to rule shortly on Defen-

dant’s Motion for Summary Judgment (Doc. No. 25,

filed August 6, 1996). In the event that summary

judgment is denied, the Court will advise the parties

of the new dates for pretrial conference and trial.

appendix 25

This Court’s Order granting Plaintiff's Motion Re-

: questing Meeting Room (Doc. No. 58, filed January

3 8, 1997) is hereby VACATED. in the event that

summary judgment is denied, the Court will again

provide a room in which the parties can meet.

DONE AND ORDERED at Jacksonville, Flor-

ida, this 8th day of January, 1997,

! Harvey E. Schesinger

; United States District Judge

i Copies to:

i Ernest McDuffie, II

; Michael Freeed, Esq.

: Garry Randolph

F Law Clerk

appendix 26

(477 US 317)

CELOTEX COPORATION, PETITIONER

MYRTLE NELL CATRETT, Administratrix of the Es-

tate of LOUIS H. CATRETT, Deceased

477 US 317, 91 L Ed 2d 265, 106 S Ct 2548

[No. 850198]

Argued April 1, 1986. Decided June 25, 1986.

Decision: Party moving for summary judgment held

not required by Rule 56 of Federal Rules of Civil

Procedure to support motion with affidavits or other

similar materials negating opponent’s claim.

SUMMARY

A widow sued in the United States District Court

for the District of Columbia, alleging that her hus-

band’s death resulted from his exposure to asbestos

manufactured or distributed by 15 named corpora-

tions. One corporation moved for summary judg-

ment, claiming that the plaintiff had failed to pro-

duce evidence that her husband had been exposed to

its asbestos products. The plaintiff produced docu-

ments tending to show such exposure, but the mov-

ing party argued that they were inadmissible hearsay

and could not be considered in opposition to the

motion for summary judgment. The District Court

granted the motion, holding that there had been no

showing the decedent had been exposed to the moving

party’s products in the District of Columbia or

elsewhere. The United States Court of Appeals for

the District of Columbia Circuit reversed, holding

that the moving party had not adduced evi-

appendix 27

dence, in the form of affidavits or otherwise, to

support its motion, and that Rule 56(e) of the Fed-

eral Rules of Civil Procedure and the decision of

the United States Supreme Court in Adickes y S. H.

Kress & Co. 398 US 144, 26 L Ed 2d 142, 90 S Ct 1598,

required that the party opposing the motion for

summary judgment bore the burden of responding

only after the moving party had met its burden of

coming forward with proof of the absence of any

genuine issue of material fact (244 App DC 160, 756

F2d 181).

On certiorari, the United States Supreme Court

reversed and remanded the case for further proceed-

ings. In an opinion by REHNQUIST, J., joined by

WHITE, MARSHALL, POWELL, and O’CONNOR,

JJJ., it was held that the position taken by the

majority of the Court of Appeals was inconsistent

with the standard for summary judgment set forth

in Rule 56(c) of the Federal Rules of Civil Proce-

dure, because Rule 56 did not require the moving

party to support its motion with affidavits or other

similar materials negating the opponent’s claim, Rule

56(c) suggesting the absence of such requirement

when it referred to “the affidavits, if any,” and

because the decision in Adickes vy. §. H. Kress & Co.

Should not be construed to mean that the burden is

on the moving party to produce evidence showing

the absence of a genuine issue of material fact.

WHITE, J., concurred in the court’s Opinion and

judgment, expressing the view that while the Court

of Appeals was wrong in holding that the moving

party must always support his motion with evidence

to affidavits showing the absence of a genuine dis-

pute about a material fact, the moving party must

discharge the burden that the rules placed upon him

appendix 28

and it was not enough to move for summary judg-

ment without supporting the motion in any way or

with a conclusory assertion that the plaintiff had no

evidence to prove his case.

BRENNAN, J., joined by BURGER, Ch. J., and

BLACKMUN, J., dissented, expressing the view that

while the Court of Appeals erroneously read _ the

decision in Adickes v S. H. Kress & Co., when it

required the moving party to submit evidence estab-

lishing that the widow’s decedent had not been ex-

posed to the moving party’s asbestos, and while the

moving party could seek summary judgment on the

ground that the widow could not prove exposure to

the moving party’s asbestos at trial, the moving

party was nevertheless still required to satisfy its

initial burden of production under Rule 56, and it

had failed to do so, thereby rendering summary

judgment improper.

STEVENS, J., dissent, expressing the view that, in

the context of the motion for summary judgment

based on the decedent’s lack of exposure to the

moving part’s asbestos in the District of Columbia,

the District Court’s decision to grant the motion was

erroneous and the reversal of summary judgment

should have been affirmed on the narrow ground

that the widow had made an adequate showing that

the decedent had been exposed to the moving party’s

asbestos in Illinois.

Briefs of Counsel, p 660, infra.

a — a. te

appendix 29

477 US 317, 91 L Ed 2d 265, 106 S Ct 2548

HEADNOTES

Summary Judgment and Judgment on the Pleadings

3- summary judgment - evidence negating nonmoving

party’s claim

la-le. In a wrongful death action in Fed-

eral District Court arising from the death of

the plaintiff's husband allegedly due to expo-

sure to asbestos manufactured or distributed

by named corporations, where one corpora-

tion moved for summary judgment on the

ground that the plaintiff failed to produce

evidence showing the decedent’s exposure to

the moving part’s asbestos, the decision of the

Federal Court of Appeals reversing the grant

of summary judgment on the ground that the

moving party failed to produce proof of the

absence of any genuine issues of material fact

is inconsistent with standard for summary

judgment set forth in Rule 56(c) of the

Federal Rules of Civil Procedure, because (1)

Rule 56 does not require that the moving

party support its motion with affidavits or

other similar materials negating the oppo-

nent’s claim, Rule 56(c) Suggesting the absence

of such requirement when it refers to “ the

affidavits, if any”,: (2) Rule 56(e), in requiring

the nonmoving party to come forward with

rebuttal affidavits or other specified kinds of

materials only in response to a motion for

summary judgment “made and supported as

provided in this rule,” does not require that

the motion be supported by affidavits, since.

appendix 30

in a case such as the instant one where the

nonmoving party will bear the burden of

proof at trial on a dispositive issue, the

moving party may rely solely on the plead-

ings, depositions, answers to interrogatories,

and admissions on file, and such a motion

will be “made and supported as provided in

this rule”,; and (3) the statement in Adickes

b. S.H. Kress & Co., 398 US 144, 26 L Ed 2d

142, 90 S Ct 1598, that the moving party must

show initially the absence of a genuine issue

concerning any material fact, should not be

construed to mean that the moving party

must produce evidence showing the absence

of a genuine issue of material fact, even with

respect to an issue on which the nonmoving

party bears the burden of proof, but should

instead be understood as requiring the moving

party to discharge his burden by showing -

that is, pointing out to the District Court-that

there is an absence of evidence to support the

nonmovng party’s case. (Stevens, J., dissented

from this holding.)

Summary Judgment and Judgment on the Pleadings

5 -summary judgment - nonmoving party’s burden

2. The plain language of Rule 56(c) of the

Federal Rules of Civil Procedure mandates the

entry of summary judgment, after adequate

time for discovery and upon motion, against a

party who fails to make a showing sufficient

to establish the existence of an element es-

sential to that party’s case, and on which

that party will bear the burden of proof at

trial; in such a situation, there can be no

appendix 31

genuine issue as to any material fact, since

a complete failure of proof concerning an es-

sential element of the nonmoving party’s case

necessarily renders all other facts immaterial;

the moving party is entitled to judgment as a

matter of law because the nonmoving party

has failed to make sufficient showing on an

essential element of his case with respect to

which he has the burden of proof.

Summary Judgment and Judgment on the Pleadings

3 - summary judgment - moving party’s burden

3. A party seeking summary judgment al-

ways bears the initial responsibility of inform-

ing the district court of the basis for its mo-

tion, and identifying those portions of the

pleading, depositions, answers to interrogato-

ries, and admissions on file, together with the

affidavits, if any, which it believes will dem-

onstrate the absence of any genuine issue of

material fact.

Summary Judgment and Judgment on the Pleadings

I - summary judgment - purpose

4. One of the principal purposes of the

summary judgment rule is to isolate and dis-

pose of factually unsupported claims or de-

fenses, and the rule Should be interpreted in

: a way that allows it to accomplish this pur-

pose.

Summary Judgment and Judgment on the Pleadings

4 - summary judgment - nonmoving party’s proof

5. The nonmoving party is not required to

produce evidence in a form that would be

admissible at trial in order to avoid summary

judgment; Rule 56 of the Federal Rules of

Civil Procedure does not require the nonmoy-

appendix 32

party to depose his own witnesses; 56(e) per-

mits a proper summary judgment motion to

be opposed by any of the kinds of eviden-

tiary materials listed in Rule 56(c), except the

mere pleadings themselves, and it is from this

list that would normally expect the nomoving

party to show that there is a genuine issue

for trial.

Summary Judgment and Judgment on the Pleadings

6-summary judgment - premature motion

6. The plaintiff in an action in Federal Dis-

trict Court cannot claim to have _ been

“railroaded” by a premature motion for

summary judgment, where the motion is filed

12 months after the commencement of the

action; any potential problem with a prema-

ture motion can be adequately dealt with un-

der Rule 56(f) of the Federal Rules of Civil

Procedure, which allows a summary judgment

motion to be denied, or the hearing on the

motion to be continued, if the nonmoving

party has not had an opportunity to make

full discovery.

1692.2 - summary judgment - issues not de-

termined - remand

7. In a wrongful death action in

Federal District Court arising from the

death of the plaintiff's husband alleg-

edly due to exposure to asbestos

manufactured or distributed by named

corporations, where one corporation

moved for summary judgment on the

ground that the plaintiff failed to pro-

duce evidence showing the decedent’s

appendix 33

exposure to the moving party’s asbes-

tos, and the plaintiff produced docu

ments tending to show such exposure,

but the moving party argued that they

were inadmissible hearsay and could

not be considered in opposition to the

motion for summary judgment, and

where the United States Supreme

Court reverses and remands for fur-

ther proceedings of the Federal Court

of Appeals which reversed summary

judgment for the moving party’s fail-

| ure to produce evidence negating the

nonmoving party’s claim, the Supreme

Court will leave to the Court of Ap-

. peals the determination of the ade-

| quacy of the showing made by the

;

plaintiff in opposition to the motion for

summary judgment and whether such

a showing, if reduced to admissible

evidence, would be sufficient to carry

the plaintiff's burden of proof at trial,

because that court with its superior

knowledge of local law is better suited

than the Supreme Court to make these

determinations in the first instance.

Summary Judgment and Judgment on the Pleadings

3, 4-summary judgment - construction of Rule 56

8. Rule 56 of the Federal Rules of Civil

Procedure must be construed with due regard

not only for the rights of persons asserting

claims and defenses that are adequately based

in fact to have those claims and defenses tried

to a jury, but also for the rights of persons

appendix 34

opposing such claims and defenses to demon-

strate in the manner provided by the Rule,

prior to trial, that the claims and defenses

have not factual basis.

SYLLABUS BY REPORTER OF DECISIONS

In September 1980, respondent administratrix filed

this wrongful death action Federal District Court,

alleging that her husband’s death in 1979 resulted

from his exposure to asbestos products manufactured

or distributed by the defendants, who included peti-

tioner corporation. In September 1981, petitioner

filed a motion for summary judgment, asserting that

during discovery respondent failed to produce any

evidence to support her allegation that the decedent

had been exposed to petitioner products. In response,

respondent produced documents tending to show such

exposure, but petitioner argued that the documents

were inadmissible hearsay and thus could not be

considered in opposition to the summary judgment

motion. In July 1982, the court granted the motion

because there was no showing of exposure to peti-

tioner’s products, but the Court of Appeals reversed,

holding that summary judgment in petitioner’s favor

was precluded because of petitioner’s failure to sup-

port its motion with evidence tending to negate such

exposure, as required by Federal Rule of Civil Pro-

cedure 56(e) and the decision in Adickes V. S.H.

Kress & Co. 398 US 144, 26 L Ed 2d 142, 90 S Ct 1598.

Held:

1. The Court of Appeals’ position is inconsistent

with the standard for summary judgment set forth

in Rule 56(c), which provides that summary judg

appendix 35

ment is proper “if the pleadings, depositions, answers

to interrogatories and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of law.”

(a) The plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails

to make a showing sufficient to establish the exis-

tence of an element essential to that party’s case,

and on which that party will bear the burden of

proof at trial. In such a situation, there can be “no

genuine issue as to any material fact,” since a com-

plete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all

other facts immaterial. The moving party is “entitled

to a judgment as a matter of law” because the

nonmoving party has failed to make a sufficient

showing on an essential element of its case with re-

spect to which it has the burden of proof.

(b) There is no express or implied requirement in

Rule 56 that the moving party support its motion

with affidavits or other similar materials negating the

opponent’s claim. On the contrary, Rule 56(c),

which refers to the affidavits, “if any,” suggests the

absence of such a requirement, and Rules $6(a) and

(b) provide that claimants and defending parties may

move for summary judgment “with or without sup-

porting affidavits.” Rule 56(e), which relates to the

form and use of affidavits and other materials, does

not require that the moving party’s motion always

be supported by affidavits to show initially the ab-

sence of a genuine issue for trial. Adickes vy. S. H.

Kress & Co., supra, explained.

appendix 36

dent was “railroaded” by a premature motion for

summary judgment, since the motion was not filed

until one year after the action was commence and

since the parties had conducted discovery. Moreover,

any potential problem with such premature motions

can be adequately dealt with under Rule 56(f).

2. The questions whether an adequate showing of

exposure to petitioner’s products was in fact made

by respondent in opposition to the motion, and

whether such a showing, if reduced to admissible

evidence, would be sufficient to carry respondent’s

burden of proof at trial, should be determined by

the Court of Appeals in the first instance.

244 US App DC 160, 756 F2d 181, reversed and re-

manded. Rehnquist J., delivered the opinion of

the Court, in which White, Marshall, Powelll, and

O’Connor, JJ,. joined. White, J., filed a concurring

opinion. Brennan, J., filed a dissenting and Blackman,

J., joined. Stevens, J., filed a dissenting opinion.

APPEARANCE OF COUNSEL

Leland S. Van Koten argued the cause for

petitioner.

Paul March Smith argued the cause for re-

spondent. Briefs of Counsel, p 660, infra.

OPINION OF THE COURT

(477 US 319)

Justice Rehnquist delivered the opinion of the

Court.

[la] The United States District Court for the Dis-

trict of Columbia granted the motion for petitioner

Celotex Corporation for summary judgment against

respondent Catrett because the latter was unable to

produce evidence in support of her allegation in her

appendix 37

wrongful-death complaint that the decedent had be

exposed to petitioner’s asbestos products. A divided

panel of the Court of Appeals for the District of

Columbia Circuit reversed, however, holding that pe-

titioner’s failure to support its motion with evidence

tending to negate such exposure precluded the entry

of summary judgment in is favor. Catrett b Johns-

Manville Sales Corp,. 244 US App DC 160, 756 F2d 181

(1985). This view conflict with that of the Third

Circuit in In re Japanese Electronic Products, 723

F2d 238 (1983), rev’d on other grounds sub nom

Matsushita Electric Industrial Co, v. Zenith ?Radio

Corp. 475 US 574, 89 L Ed 2d 538, 106 S Ct 1438

(1986). We granted certiorari to resolve the con-

flicted, 474 US 944, 85 L Ea 2d 157, 105 S Ct 1863

(1985), and now reverse the decision of the District

-* Columbia Circuit.

Respondent commence _ this lawsuit in September

1980, alleging that the death in 1979 of her hus-

band, Louis H. Catrett, resulted from his exposure

to products containing asbestos manufactured or dis-

tributed by 15 named corporations. Respondent’s

complaint sounded in negligence, breach of warranty,

and strict liability. Two of the defendants filed mo-

tions challenging the District Court’s in personam ju-

risdiction, and the remaining 13, including petitioner,

filed motions for summary judgment. Petitioner’s

motion, which was first filed in September 1981, ar-

gued that summary judgment was proper because

respondent had “failed to produce evidence that any

[Celotex] product ... was the proximate cause of the

injuries alleged within the jurisdictional [477 US 320]

limits of [the District] Court,” In particular, _peti-

tioner noted that respondent had failed to identify,

1. Since our grant of certiorari in this case, the Fifth Circuit has

rendered a decision Squarely rejecting the Position adopted her by

appendix 38

in answering interrogatories specifically requesting

such information, any witness who could testify

about the decedent’s exposure to petitioner’s asbestos

products. In response to petitioner’s summary judg-

ment motion, respondent then produced three docu-

ments which she claimed “demonstrate that there is

a genuine material factual dispute” as to whether

the decedent had ever been exposed to petitioner’s

asbestos products. The three documents included a

transcript of a deposition of the decedent, a letter

from an official of one of the decedent’s former

employers whom petitioner planned to call as a trial

witness, and a letter from an insurance company to

respondent’s attorney, all tending to establish that

the decedent had been exposed to petitioner’s asbes-

tos products in Chicago during 1970-71. Petitioner, in

turn, argued that the three documents were inad-

missible hearsay and thus could not be considered in

opposition to the summary judgment motion.

In July 1982, almost two years after commencement

of the lawsuit, the District Court granted all of the

motions filed by the various defendants. The court

explained that it was granting petitioner’s summary

judgment motion because “there [was] no showing

that the plaintiff was exposed to the defendant Ce-

lotex’s product in the District of Columbia or else-

where within the statutory period.” App217.z

Respondent [477 US 321]

Respondent appealed only the grant of summary

judgment in favor of petitioner, and a divided panel

of the District of Columbia Circuit reversed. The

majority of the Court of Appeals held that peti-

tioner’s summary judgment motion was_ rendered

“fatally defective” by the fact that petitioner “made

no effort to adduce any evidence, in the form of

affidavits or otherwise, to support its motion.” 244

appendix 39

US App DC, at 163, 756 F2d, at 184 (emphasis in origi-

nal). According to the majority, Rule 56(e) of the

Federal Rules of Civil Procedure,; and this Court’s

decision in Adickes b S. H. Kress & Co. 398 US 144,

159, 26 L Ed 2d 142, 90S Ct 1598 (1970), establish that

“the party Opposing the motion for summary judg-

ment bears the burden of responding only after the

moving party has met. its burden of coming for-

ward with proof of the absence of any genuine is-

sues of material fact.” 244 US App DC, at 163, 756

[477 US 322} F2d, at 184 (emphasis in original; foot-

note omitted). The majority therefore declined to

consider petitioner’s argument that none of the evi-

dence produced by respondent in Opposition to the

decision in Adickes b S. H. Kress & Co. 398 US 144,

159, 26 L Ed 2d 142, 90S Ct 1598 (1970), establish that

“the party Opposing the motion for summary judg-

ment bears the burden of responding only after the

moving party has met its burden of coming for-

ward with proof of the absence of any genuine is-

sues of material fact.” 244 US App DC, at 163, 756

motion for summary judgment would have been

admissible at trial. Ibid. The dissent judge argued

that “[t}he majority errs in supposing that a party

seeking summary judgment must always make an

affirmative evidentiary showing, even in case where

the District of Columbia Circuit. See Fontenot v Upjohn Co. 780 F2d

1190(1986).

2. Justice Stevens, in dissent, argues that the District Court

granted summary judgment Only because respondent presented no

evidence that the decedent was exposed to Celotex asbestos prod-

ucts in the District of Columbia. See post, at 338-339, 91 L Ed 2d

at 283. According to Justice Stevens, we should affirm the deci-

sion of the Court of Appeals, reversing the District Court, on the

“Narrower ground” that respondent “made an adequate showing”

appendix 40

there is not a triable, factual dispute.” Id,. at 167,

756 F2d, at 188 (Bork, J., dissenting). According to

the dissenting judge, the miajority’s decision

“undermines the traditional authority of trial judges

to grant summary judgment in meritless cases.” Id,

at 166, 756 F2d, at 187.

{lb, 2] We think that the position taken by the ma-

jority of the Court of Appeals is inconsistent with

the standard for summary judgment set forth in

Rule 56(c) of the Federal Rules of Civil Procedure.4

Under Rule 56(c), summary judgment is proper “if

the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to

any material fact and that the moving party is en-

titled to a judgment as a matter of law.” In our

view, the plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for

discovery and upon motion, against a party who

that the decedent was exposed to Celotex asbestos products in Chi-

cago during 1970-71. See post, at 338-339, 91 L Ed 2d, at 283.

Justice Stevens’ position is factually incorrect. The District

Court expressly stated that respondent had made no showing of

exposure to Celotec, asbestos products “in the District of Columbia

or elsewhere.” App 217 (emphasis added). Unlike Justice Ste-

vens, we assume that the District Court meant what it said. The

majority of the Court of Appeals addressed the very issue raised

by Justice Stevens, and decided that “ “[the District Court’s grant

of summary judgment must therefore have been based on its con-

clusion that there was “no showing that the plaintiff was exposed to

defendant Celotex’s product in the District of Columbia or else-

where within the statutory period.’ “ Catrett v Johns-Manville

Sales Corp,244 US App Dc 160, 162, n 3, 756 R2d 181, 183, n3

(1985) (emphasis in original). In other words, no judge involved

in this case to date shares Justice Stevens’ view of the District

Court’s decision.

eee

appendix 41

fails to make a showing sufficient to establish the

existence of an element essential to that party’s case,

and on which that party will bear the burden of

proof at trial. In such a Situation, [477 US 323]

there can be “no genuine issue asto any mate-

rial fact,” since a complete failure of proof concern-

ing an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial.

The moving party is “entitled to a judgment as a

matter of law” because the nonmoving party has

failed to make a sufficient Showing on an essential

element of her case with respect to which she has

the burden of proof. “[T]h[e] standard [for granting

summary judgment] mirrors the standard for a di-

rect verdict under Federal Rule of Civil Procedure

under Federal Rule of Civil Procedure SOfa). ...”

Anderson b Liberty Lobby inc., ante, at 250, 91 L

Ed 2d 202, 106 S Ct 2505 (1986).

[1c,3, 4] Of course, a party seeking summary

judgment always bears the initial responsibility of

informing the district court of the basis for its mo-

tion, and identifying those portions of “the plead-

ings, 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. But unlike the Court

of Appeals, we find no express or implied require-

ment in Rule 56 that the moving party support its

motion with affidavits or other similar materials ne-

gating the opponent’s claim. On the contrary, Rule

56(c), which refers to “the affidavits, in any”

(emphasis added), Suggests the absence of such a

requirement. And if there were any doubt about the

meaning of Rule 56(c) in this regard such doubt is

clearly removed by Rules 56(a) and (b), which pro-

vide that claimants and defendants, respectively, may

appendix 42

move for summary judgment “with or without sup-

porting affidavits” (emphasis added). The import of

these subsections is that, regardless of whether the

moving party accompanies its summary judgment

motion with affidavits, the motion may, and should,

be granted so long as whatever is before the district

court demonstrates that the standard for the entry

of summary judgment, as set forth in Rule 56(c), is

satisfied. One of the principle purposes of the sum-

mary judgment rule is to isolate and dispose of

factually unsupported [477 US 324] claims or defense,

and we think it should be interpreted in a way that

allows it to accomplish this purpose.s

[ld] Respondent argues, however, that Rule 56(e),

by its terms, places on the nonmoving party the

burden of coming forward with rebuttal affidavits,

or other specified kinds of materials, only in re-

sponse to a motion for summary judgment “made

and supported as provided in this rule.” According

to respondent’s argument, since petitioner did not

“support” its motion with affidavits, summary

judgment was improper in this case. But as we

have already explained, a motion for summary

judgment may be made pursuant to Rule 56 “with

or without supporting affidavits.” In case like the

instant one, where the nonmoving party will bear the

burden of proof at trial on a dispositive issue, a

summary judgment motion may properly be made in

reliance solely on the “pleadings, depositions, an-

swers to interrogatories, and admissions on file,”

Such a motion, whether or not accompanied by

affidavits, will be “made and supported as provided

competent to testify to the matters stated therein. Sworn or cer-

tified copies of all papers or parts thereof referred to in an

appendix 43

in this rule,” and Rule 56(e) therefore requires the

nonmoving party to go beyond the pleadings and by

her own affidavits, or by the “depositions, answers

to interrogatories, and admissions on file,” designate

“specific facts showing that there is a genuine issue

for trial.”

[5] We do not mean that the nonmoving party

must produce evidence in a form that would be

admissible at trial in order to avoid summary judg-

ment. Obviously, Rule 56 does not require the non-

moving party to depose her own witnesses. Rule

56(e) permits a proper summary judgment motion to

be opposed by any of the kinds of evidentiary ma-

terials listed in Rule 56(c), except the mere plead-

ings themselves, and it is from this list that one

would normally expect the nonmoving party to make

the showing to which we have referred.

[477 US 325]

{le] The Court of Appeals in this case felt itself

constrained, however, by language in our decision

in Adickes vy §S. H. Kress & Co. 398 US 144, 26 L

Ed 2d 142, 90 S Ct 1598 1970). There we held that

summary judgment had been improperly entered fa-

vor of defendant restaurant in an action brought

under 42 USC 1983 [42 USCS 1983]. In the course of

its opinion, the Adickes Court said that “both the

commentary on and the background of the 1963

amendment conclusively show that it was not in-

tended to modify the burden of the moving party. .

affidavit shall be attached thereto or served therewith. The

court may permit affidavits to be supplemented or opposed by

depositions , answers to interrogatories, or further affidavits.

appendix 44

wm show initially the absence of a genuine issue con-

cerning any material fact.” Id., at 159, 26 L Ed 2d 142,

90 S 1598. We think that this statement is accurate

in a literal sense, since we fully agree with the

Adickes Court that the 1963 amendment to Rule

56(e) was not designed to modify the burden of

making the showing generally required by Rule 56(c).

It also appears to us that, on the basis of the

showing before the Court in Adickes, the motion for

summary judgment in that case should have been

denied. But we no not think the Adickes language

quoted above should be construed to mean that the

burden is on the party moving for summary judg-

ment to produce evidence showing the absence of a

genuine issue of material fact, even with respect to

an issue on which the nonmoving party bears the

burden of proof. Instead as we have explained, the

burden on the moving party may be discharged by

“showing” - that is, pointing out to the district court

- that there is an absence of evidence to support the

nonmoving party’s case.

The last two sentences of Rule 56(e) were added, as

this Court indicated in Adickes, to disapprove a

supported as provided in this rule, an adverse party may not

rest upon the mere allegations or denials of his pleading, but

his response, by affidavits or as otherwise provided in this

rule, must set forth specific facts showing that there is a

genuine issue for trial. If he does not so respond, summary

judgment, if appropriate, shall be entered against him.”

rule, must set forth specific facts showing that there is a

genuine issue for trial. If he does not so respond, summary

judgment, if appropriate, shall be entered against him.”.

appendix 45

to show initially the absence of a genuine issue con-

cerning any material fact.” Id., at 159, 26 L Ed 2d 142,

90 S 1598. We think that this statement is accurate

in a literal sense, since we fully agree with the

Adickes Court that the 1963 amendment to Rule

56(e) was not designed to modify the burden of

making the showing generally required by Rule 56(c).

It also appears to us that, on the basis of the

showing before the Court in Adickes, the motion for

The last two sentences of Rule 56(e) were added,

as this Court indicated in Adickes, to disapprove a

line of cases allowing a party opposing summary

too resist a properly made motion by ref-

erence only to its pleadings. While the Adickes

was

Court of Appeals would produce; in effect, an

amendment to Rule 56(e) designed to {477 US 326]

facilitate the granting of motions for summary

judgment would be interpreted to make it more dif-

appendix 46

ficult to grant such motions. Nothing in the two sen-

tences themselves requires this result, for the reasons

we have previously indicated, and we now put to

rest any inference that they do so.

Our conclusion is bolstered by the fact that district

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. See 244 US App,

DC, at 167-168, 756 F2d, at 189 (Bork, J., dissenting);

10A C. Wright, A. Miller, & M Kane, Federal Practice

and Procedure 2720, pp 28-29 (1983). It would surely

defy common sense to hold that the District Court

could have entered summary judgment sua sponte in

favor of petitioner in the instant case, but that pe-

titioner’s filing of a motion requesting such a dispo-

sition precluded the District Court from ordering it.

[6] Respondent commenced this action in September

1980, and petitioner’s motion was filed in Septem-

ber 1981. The parties had conducted discovery, and

no serious claim can be made that respondent was

in any sense “railroaded” by a premature motion

for summary judgment. Any potential problem with

such premature motions can be adequately dealt with

under Rule 56(f)).s which allows a summary judg-

ment motion to be denied, or the hearing on the

motion to be continued, if the nonmoving party has

4. Rule 56(c) provides: “The motion shall be served at least 10

days before the time fixed for the hearing. The adverse party prior

to the day of hearing may serve opposing affidavits. The judgment

sought shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitle to judgment as a

not had an opportunity to make full discovery.

appendix 47

[7] In this Court, respondent’s brief and oral argu-

ment have been devoted as much to the proposition

that an adequate showing of exposure to petitioner’s

asbestos products was [477 US 327]

made as to the proposition that no such showing

should have been required. But the Court of Ap-

peals declined to address either the adequacy of the

showing made by respondent in opposition to peti-

tioner’s motion for summary judgment. or the ques-

tion whether such a showing, if reduced to admissi-

ble evidence, would be sufficient to carry respondent’s

budded of proof at trial. We think the Court of

Appeals with its superior knowledge of local law is

better suited than we are to make these determina-

tions in the first instance.

[8] The Federal Rules of Civil Procedure have for

almost 50 years authorized motions for summary

judgment upon proper showings of the lack of a

genuine, triable issue of material fact. Summary

judgment procedure is properly regarded not as a

disfavored procedural shortcut, but rather as in in-

tegral part of the Federal Rules as a whole, which

are designed “to secure the just, speedy and inex-

pensive determination of every action.” Fed Rule Civ

Proc 1; se Schwarzer, Summary Judgment Under the

Federal Rules: Defining Genuine Issues of Material

Fact, 99FRD 465, 467 (1984). Before the shift to

“notice pleading” accomplished by the Federal Rules,

motions to dismiss a complaint or to strike a defense

were the principal tools by which factually insuffi-

cient claims or defense could be isolated and pre

matter of law. A summary judgment, interlocutory in character,

may be rendered on the issue of liability alone although there is a

genuine issue as to the amount of damages.”

appendix 48

vented from going to trial with the attendant un-

warranted consumption of public and private re-

sources. But with the advent of “notice pleadings,”

the motion to dismiss seldom fulfills this function

any more, and its place has been taken by the mo-

tion for summary judgment. Rule 56 must be con-

structed with due regard not only for the rights of

persons asserting claims and defenses that are ade-

quately based in fact to have those claims and de-

fended tried to a jury, but also for the rights of

person opposing such claims and defenses to demon-

strate in the manner provided by the Rule, prior to

trial, that the claims and defenses have no factual

basis.

477 US 328]

The judgment of the Court of Appeals is accord-

ingly reverse, and the case is remanded for further

proceedings consistent with this opinion.

It is so ordered.

5. See Louis, Federal Stmmary Judgment Doctrine: A Critical

Analysis, 83 Yale LJ 745, 752 (1974); Currie, Thoughts on Di

rected Verdicts and Summary Judgments, 45 U Chi L Rev 72, 79

(1977).

6. Rule 56(f) provides:

“Should it appear from the affidavits of a party opposing the mo-

tion that he cannot for reasons stated present by affidavit facts es

sential to justify his opposition, the court may refuse the applica-

tion for judgment or may order a continuance to permit affidavits

to be obtained or deposition to be taken or discovery to be had or

may make such other order as is just.”

appendix 49

SEPARATE OPINIONS

Justice White, concurring,

I agree that the Court of Appeals was wrong in

holding that the moving defendant must always sup-

port his motion with evidence or affidavits showing

the absence of a genuine dispute about a material

fact. I also agree that the movant may rely on

depositions, answers to interrogatories, and the like,

to demonstrate that the plaintiff has no evidence to

prove his case and evidence that there can be no

factual dispute. But the movant must discharge the

burden the Rules place on him: It is not enough to

move for summary judgment without supporting the

motion in any way or with a conclusory assertion

that the plaintiff has no evidence to prove his case.

A plaintiff need not initiate any discovery or re-

veal his witnesses or evidence unless required to do

so under the discovery Rules or by court order. Of

course, he must respond if required to do so; but

he need not also depose his witnesses or obtain

their affidavits te defeat a summary judgment mo-

tion asserting only that he has failed to produce any

support for his case. It is the defendant’s task to

negate, if he can, the claimed basis for the suit.

Petitioner Celotex does not dispute that if re-

spondent has named a witness to support her claim,

summary judgment should not be granted without

Celotex somehow showing that the named witness’

possible testimony raise no genuine issue of material

fact. Tr of Oral Arg 43, 45. It asserts, however,

that respondent has failed on request to produce

any basis for her case. Respondent, on the other

hand, does not contend that she was not obligated

to reveal her witnesses and evidence but insists that

she has revealed enough to defeat the motion for

appendix 50

summary judgment. Because the Court of Appeals

found it unnecessary to address this aspect [477 US

329] of the case, I agree that the case should be

remanded for further proceedings.

Justice Brennan, with whom The Chief Justice

and Justice Blackmun join, dissenting.

This case requires the Court to determine

whether Celotex satisfied its initial burden of pro-

duction in moving for summary judgment on the

ground that the plaintiff lacked evidence to esta-

blish an essential element of her case at trial. I do

not disagree with the Court’s legal analysis. The

Court clearly rejects the ruling of the Court of Ap-

peals that the defendant must provide affirmative

evidence disproving the plaintiff's case. Beyond this,

however, the Court has not clearly explained what

is required of a moving party seeking summary

judgment on the ground that the nonmoving party

cannot prove its case. This lack of clarity is unfor-

tunate district courts must routinely decide summary

judgment motions, and the Court’s opinion will very

likely create confusion. For this reason, even if I

agreed with Court’s result, I would have written

separately explain more clearly the law in this area.

However, because I believe that Celotex did not

meet its burden of production under Federal Rule

of Civil Procedure 56, I respectfully dissent from

the Court’s judgment.

[477 US 330]

Summary judgment is appropriate where the

court is satisfied “that there is no genuine issue as

to any material bat and that the moving party is

appendix 51

entitle to a judgment as a matter of law.” Fed Rule

Civ Proc 56(c). The burden of establishing the non-

existence of a “genuine issue” is on the party mov-

ing for summary judgment. 10A C. Wright, A. Miller

& M. Kane, General Practice and Procedure 2727, p

121 (2d ed 1983) hereinafter Wright) (citing cases); b

J. Moore, W. Taggart & J. Wicker, Moore’s Federal

Practice 56.15[3] (2d ed 1985) (hereinafter Moore)

(citing cases). See also, ante, at 323, 91 L Ed 2d, at

273-274; ante, at 328, 91 L Ed 2d, at 277 (White, J.,

concurring). This burden has two distinct compo-

nents: an initial burden of production, which shifts

to the nonmoving party if satisfied by the moving

party; and an ultimate burden of persuasion, which

always remains on the moving party. See 10A Wright

2727. The court need not decide whether the

moving party has satisfied its ultimate burden of

persuasion 2 unless and until the court finds that

moving party has discharged its initial [477 US 331]

burden

of production. Adickes vy S. H. Kress & Co., 398 US

144, 157-161, 51 L Ed 2d 260, 97 S Ct 990 (1970); 1963

Advisory Committee’s Notes on Fed Rule Civ Proc.

56(e), 28 USC App, p 626 [USCS Court Rules, Fed

Rules of Civ Proc, Notes following Rule 56].

The burden of production imposed by Rule 56

requires the moving [arty to make a prima facie

1. It is also unclear what the Court of Appeals is suppose to do in

this case on remand. Justice White - who has provided the Court's

fifth vote - plainly believes that the Court of Appeals should ree-

valuate whether the defendant met its initial burden of production.

However, the decision to reverse rather than to vacate the

judgment below implies that the Court of Appeals should assume

that Celotex has met its initial burden of production and ask only

whether the plaintiff responded adequately, and, if so, whether the

appendix 52

showing that it is entitle to summary judgment. 10A

Wright 2727. The manner in which this showing can

be made depends on which party will bear the bur-

den of persuasion at trial, that party must support

its motion with credible evidence - using any of the

materials specified in Rule 56(c)- that would entitle

it to a directed verdict if not controverted at trial.

Ibid. Such an affirmative showing shifts the burden

of production to the party opposing the motion and

requires that party either to produce evidentiary ma-

terials that demonstrate the existence of a “genuine

issue” fo: trial or to submit an affidavit requesting

additiona) time for discovery. Ibid; Fed Rules Civ

Proc. 56¢), (f).

If the barden of persuasion at trial would be on the

nonmovirg party, the party moving for summary

judgment may satisfy Rule 56’s burden of production

in either of two ways. First, the moving

party may submit affirmative evidence that negates

an esseitial element of the mnonmoving party’s

claim.. Second, the moving party may demonstrate

to the ourt that the nonmoving party’s evidence is

insufficiat to establish an essential element of the

nonmoving party’s claim. See 10A Wright 2727, pp

130-131;Louis, Federal; Summary Judgment Doctrine;

A Critcal Analysis, 83 Yale LJ 745, 750 (1974)

(hereinater Louis). If the nonmoving party cannot

muster jufficient evidence to make out its claim, a

trial waild be useless and the moving party is entitle

to sumnary judgment as a matter of law. Anderson

defendanthas met its ultimate burden of persuasion that no genuine

issue exits for trial. Absent some clearer expression from the

Court tothe contrary, Justice White’s understanding would seem

to be conrolling. Cf. Marks b United States, 430 US 188, 193, 51

L Ed 2d’60, 97 S Ct 990 (1977).

appendix 53

v Liberty Lobby, Inc., ante, at 249, 92 L Ed 2d 202,

106 S Ct 2505.

Where the moving party adopts this second option

and seeks summary judgment on the ground that

the nonmoving party - who will bear the burden of

persuasion at trial - has [477 US 332]

no evidence, the mechanics of discharging

Rule 56’s burden of production are somewhat trick-

ier. Plainly, a conclusory assertion that the nonmovy-

ing party has no evidence is insufficient. See ante, at

328, 91 L Ed 2d, at 277 (White, J., concurring). Such

a “burden” of production is no burden at all and

would simply permit summary judgment procedure

to be converted into a_ tool for harassment. See

Louis 750-751, Rather, as the Court confirms, a

party who moves for summary judgment on the

ground that the nonmoving party has no evidence

must affirmatively show the absence of evidence in

the record. Ante, at 323, 91 L Ed 2d, at 273. This

may require the moving party to depose the nonmovy-

ing party’s witnesses or to establish the inadequacy

of documentary evidence. If there is literally no

evidence in the record, the moving party may dem-

onstrate this by reviewing for the court the admis-

sions, interrogatories and other exchanges between

2. The burden of persuasion imposed on a moving party - by

Rule 56 is a Stringent one. 6 Moore 56.15[3], p56-466: 10A

Wright 2727, p124. Summary judgment should not be granted un-

less it is clear that a trial is unnecessary, Anderson v Liberty

Lobby, Inc., ante, at 255, 91 L Ed 2d 202, 106 S Ct 2505, and any

doubt as to the existence of a genuine issue for trial should be re-

solved against the moving party, Adickes v S. H. Kress & Co. 398

US 144, 158-159, 51 L Ed ed 260, 97 § Ct 990 (1970). In deter-

mining whether a moving party has met its burden of persuasion,

appendix 54

the parties that are in the record. Either way, how-

ever, the moving party must affirmatively demon-

strate that there is no evidence in the record to

support a judgment for the nonmoving party.

If the moving party has not fully discharged this

initial burden of production, its motion for summary

judgment must be denied, and the court need not

consider whether the moving party has met its ul-

timate burden of persuasion. Accordingly, the non-

moving party may defeat a motion for summary

judgment that assets that the nonmoving party has

no evidence by calling the court’s attention to sup-

porting evidence already in the record that was

overlooked or ignored by the moving party. In that

event, the moving party must respond by making an

attempt to demonstrate the inadequacy of this evi-

dence, for it is only by attaching all the record

evidence allegedly supporting the nonmoving party

that a party seeking summary judgment satisfies

Rule 56’s burden of production. 3 Thus, if the rec-

ord disclosed that the moving [477 US 333] party

had overlooked a witness who would provide rele-

vant testimony for the nonmoving party at trial, the

court could not find that the moving party had dis-

charged its initial burden of production unless the

moving party sought to demonstrate the inadequacy

of this witness’ testimony. Absent such a demonstra-

tion, summary judgment would have to be denied on

the ground that the moving party had failed to

meet its burden of production under Rule 56.

the court is obliged to take account of the entire setting of the case

and must consider all papers or records as well as any materials

prepared for the motion. 10A Wright 2721, p 44; see, eg Ste-

panischen v Merchants Despatch Transportation Corp, 722 F2d

922, 930 (Cal a983); Higgenbotham b Ochsner Foundation Hosp,

pat

‘

appendix 55

The result in Adickes v S. H. Kress & Co. supra, I

fully consistent with these principles. In that case,

petitioner was refused service in respondent’s

lunchroom and them was a arrested for vagrancy by

a local policeman as she left. Petitioner brought an

action under 42 USC 1983 [42 USCS 1983] claiming

that the refusal of service and subsequent arrest

were the product of a conspiracy between respondent

and the police; as proof of this conspiracy, peti-

tioner’s complaint alleged that the arresting officer

was in respondent’s store at the time service was

refused. Respondent subsequently moved for sum-

mary judgment on the ground that there was no

actual evidence in the record from which a jury

could draw an inference of conspiracy. In response,

petitioner pointed to a statement from her own

deposition and an unsworn statement by a Kress

employee, both already in the record and both ig-

nored by respondent, that the policeman who ar-

rested petitioner was in the store at the time she was

refused service. We agreed that “fiJf a policeman

were present,... it would be open to a jury, in

light of the sequence that followed, [477 US334]

to infer from the circumstances that the policeman

and Kress employee had a ‘meeting of the minds’

607 F2d 653, 656 (CAS 1979). As explained by the Court of Ap-

peals for the Third Circuit in In re Japanese Electronic Products

Antitrust Litigation, 723 F2d 238 (1983), rev’d on other grounds

sub nom. Matsushita Electric Industrial Co. v Zenith Radio Corp.

475 US 574, 89 L Ed 2d 538, 106 S Ct 1348(1986), . 2

there is any evidence in the record from any source from which a

reasonable inference in the [nonmoving party’s] favor may be

drawn, the moving party simply cannot obtain a summary judg-

ment... .” 723 F2d, at 258.

appendix 56

and thus of the mind’s and thus reached an under

standing that petitioner should be refused service.”

398 US, at 158, 26 L Ed 2d 142, 90 S Ct 1598. Conse-

quently, we held that it was error to grant sum-

mary judgment “on the basis of this record” be-

cause respondent had “failed to fulfill its initial

burden” of demonstrating that there was no evi-

dence that there was a policeman in the store. Id,.

at 157-158, 26 L Ed 2d 142, 90 S Ct 1598.

The opinion in Adickes has sometimes been read to

hold that summary judgment was inappropriate be-

cause the respondent had not submitted affirmative

evidence to negate the possibility that there was a

policeman in the store. See Brief for Respondent 20,

n 30 (citing cases). The Court of Appeals apparently

read Adickes this way and therefor required Celotex

to submit evidence establishing that plaintiff's dece-

dent had not been exposed to Celotex asbestos. I

agree with the Court that this reading of Adickes

was erroneous and that Celotex could seek summary

judgment on the ground that plaintiff could not

prove exposure too Celotex asbestos at trial. How-

ever, Celotex was still required to satisfy its initial

burden of production.

I do not read the Court’s opinion to say anything

inconsistent with or different from the preceding

discussion. My disagreement with the Court concerns

the application of these principles to the facts of

this case.

Defendant Celotex sought summary judgment on

the ground that plaintiff had “failed to produce”

any evidence that her decedent had ever been ex-

posed to Celotex asbestos.

ibs arises

spinkech ise apa pide tata ac petite Na ie

appendix 57

App 170 Celotex supported this motion with a 477 US

325] 2-page “Statement of Material Facts as to

Which There is No Genuine Issue” and a 3-page

“Memorandum of Points and Authorities” which as-

serted that the plaintiff had failed to identify any

“Memorandum of Points and Authorities” which as-

serted that the plaintiff had failed to identify any

evidence in responding to two sets of interrogatories

propounded by Celotex and that therefore the rec-

ord was “totally devoid” of evidence to support

plaintiff's claim. See id, at 171-176.

Approximately three months earlier, Celotex had filed

an essentially identical motion. Plaintiff responded to

this earlier motion by producing three pieces of evi-

dence which she claimed “fa]t the very least...

demonstrate that there is a genuine factual dispute

for trial,” id., at 143, 26 L Ed 2d 142, 90S Ct 1598;

(1) a letter from an insurance representative of an-

other defendant describing asbestos products to which

plaintiff's decedent had been exposed, id., at 160, 26 L

Ed 2d 142, 90 S Ct 1598. (2) a letter from T. R. Hoff,

a former supervisor of decedent, describing asbestos

products to which decedent had been exposed, id., at

162, 26 L Ed 2d 142, 90 S Ct 1598; and (3) a copy of

decedent’s deposition from earlier workmen’s com-

pensation proceedings, id., at 164, 26 L Ed 2d 142, 90

S Ct 1598. Plaintiff also apparently indicated [477 US

336] at that time that she intended to call Mr. Hoff

as awitness at trial. Tr of Oral Arg 6-7, 27-29.

Celotex subsequently withdrew its first motion for

summary judgment. See App 1267.5 However, as a

3. Once the moving party has attached whatever record evidence

- if any - the nonmoving party purports to rely upon, the burden of

production shifts to the nonmoving party, who must either (1) re-

habilitate the evidence attacked in the moving party’s papers (2)

appendix 58

result of this motion, when Celotex filed its second

summary judgment motion, the record did contain

evidence - including at least one witness - supporting

plaintiff's claim. Indeed, counsel for Celotex admit-

cedto this Court at oral argument that ?Celotex was

aware of this evidence and of plaintiff's intention to

call Mr. Hoff as a witness at trial when the second

summary judgment motion was filed. Tr of Oral

Arg 507.

Moreover, plaintiff's response to Celotex second mo-

tion pointed to this evidence - noting, that it had

already been provided to counsel for Celotex in

connection with first motion - and argued that Ce-

lotex had failed to “meet its burden of proving that

there is no genuine factual dispute for trial.” App

188.

that what the District Court said was that plaintiff had failed

to show exposure in the District of Columbia “or elsewhere.”

Ante, at 320, n 2, 91 L Ed 2d, at 272. In my view, it does not

really matter which reading is correct in this case. For,

contrary to Justice Stevens’ claim, deciding this case on the

ground that Celotex, failed to meet its burden of production

under Rule 56 does not involve an “abstract exercise in Rule

construction.” Post, at 339, 91 L Ed 2d, at 284 )Stevens, J., dis-

senting). To the contrary, the principles governing a movant’s

burden of proof are straightforward and will established, and

deciding the case on this basis does not require anew con-

struction of Rule 56 at all; it simply entails applying estab-

lished law to the particular fats of this case. The choice to

reverse because of “palpable erro[r]” with respect to the burden

of a moving party under Rule 56 is thus no more “abstract”

than the choice to reverse because of such error with re-

spect to the elements of a tort claim. Indeed, given that the

issue of the moving party’s burden under Rule 56 was the

A Nie ue SIMRAN is EDU MG RIA eke Rolls ANCL Kedah SOR eaReIG :

Dui evan dene ae dael ante Saeed ttab ai Sailers

gig set aioe Uiaci id nash aeta yagi PEti

appendix 59

On these facts, there is simply no question that

Celotex failed to discharge its initial burden of pro-

duction. Having chosen to base its motion on the

argument that there was no evidence in the record

to support plaintiff's claim. Celotex was not free to

ignore supporting evidence that the record clearly

contained. Rather, Celotex was required, as an ini-

tial matter, to attack the adequacy of this evidence.

Celotex’ failure to fulfill this simple requirement con-

stituted a failure to discharge its initial burden of

production under Rule 56, and thereby rendered

summary judgment improper..«

[477 US 337]

This case is indistinguishable from Adickes. Here,

as there, the defendant moved for summary judg-

ment on the ground that the record contained no

evidence to support an essential element of the

plaintiff's responded by drawing the court’s attention

to evidence that was already in the record and that

had been ignored by the moving party. Conse-

quently, here, as there, summary judgment should

be denied on the ground that the moving party

failed to satisfy its initial burden of production. 7

Justice Stevens, dissenting.

As the Court points out, ante, at 319-320, 91 L Ed

2d, at 271-272, the petitioner’s motion for summary

judgment was based on the proposition that respon-

dent could not prevail unless she proved that her

deceased husband had been exposed to petitioner’s

products “within the jurisdictional limits” of the Dis-

trict of Columbia.

produce additional evidence showing the existence of a genuine

issue for trial as provided in Rule 569e), or (3) submit an affi-

appendix 60

davit explaining why further discovery is necessary as provided in

Rule 56(f). See 10A Wright, 2727, pp 138-143. Summary judg-

ment should be granted if the nonmoving party fails to respond

in one or more of these ways, or if, after the nonmoving party

responds, the court determines that the moving party has met its

ultimate burden of persuading the court that there is no genuine

issue of material fact for trial. See, e.g., First National Bank of

Arizona v Cities Service Co.. 391 US 253, 289, 20 L Ed 2d 569,

88 S Ct 1575 (1968).

4. Justice Stevens asserts that the District Court granted sum-

mary judgment on the ground that the plaintiff has failed to show

exposure in the District Columbia. He contends that the judgment

of the Court of Appeals reversing the District Court's judgment

should be affirmed on the “narrow ground” that it was

“palpably erroneous” to grant summary judgment on this _ basis.

Post, at 339. 91 L Ed 2d, at 284 (dissenting). The Court replies

basis of the Court of Appeals decision, the question upon

which certiorari was granted, and the issue briefed by the

parties and argued to the Court, it would seem to be the

preferable ground for deciding the case.

5. Celotex apparently withdrew this motion because, contrary

to the asssertion made in the first summmary judgment motion, its

second set of interrogatories had not been served on the

plaintiff.

6. If the plaintiff had answered Celotex’ second set of inter-

rogatories with the evidence in here response to the first

summary judgment motion, and Celotex had ignored those

interrogatories and based its second summary jucgment mo-

tion on the first set of interrogatories only, Celotex obviously

could not claim to have discharged its Rule 56 burden of

production. This result should not be different simply be-

cause the evidence plaintiff relied upon to support her claim

was acquired by Celotex other that in plaintiff's answers to

interrogatories.

7. Although Justice White agrees that “if [plainuff] has named

a witness to support her claim, summary judgment should

OTE Re G8 Oa TIL A

bad

appendix 61

[477 US 338]

Respondent made an adequate showing - al-

beit possibly not in admissible form: - that her hus-

bandhad been exposed to petitioner’s product in IIli-

nois.3 Although the basis of the motion and the

argument had been the lack of exposure in the dis-

trict of Columbia, the District Court Stated at the

end of augment: “The Court will grant the defendant

Celotex’s motion for summary judgment there being

no showing that the plaintiff was exposed to the

defendant Celotex’s product in the District of Co-

lumbia or elsewhere within the statutory period.”

App 217 (emphasis added). The District Court offered

no additional explanation and no written opinion.

The Court of Appeals reversed on the basis that

Celotex had not met its burden; the court noted the

incongruity of the District Court’s opinion in the

context of the motion and argument, but did not

rest on that basis because of the “or elsewhere”

language.;

Taken in the context of the motion for summary

judgment on the basis of no exposure in the District

not be granted without Celotex somehow showing that the

named witness’ possible testimony raise no genuine issue of

material fact,” he would remand “ [b]ecause the Court of

Appeals found it unnecessary to address this aspect of the

case.” Ante, at 328-329, 91 L Ed 2d, at 277 (concurring). How-

ever, Celotex has admitted that plaintiff had disclosed her

intent to call Mr. Hoff as a witness at trial before Celotex

filed its second motion for summary judgment. Tr of Oral

Arg 6-7 . Under the circumstances. then, remanding is a

waste of time.

appendix 62

of Columbia, the [477 US 339]

District Court’s decision to grant

summary judgment was palpably erroneous. The

court’s bench reference to “or elsewhere” neither

validated that decision nor raised the complex ques-

tion addressed by this Court today. In light of the

District Court’s plain error, therefore, it is perfectly

clear that, even after this Court’s abstract exercise

in Rule construction, we should nonetheless affirm

the reversal of summary judgment on that narrow

ground.s

I respectfully dissent.

1. See Motion of Defendant Celotex Corporation for Sum-

mary Judgment, App 170 (“Defendant Celotex Corporation,

pursuant to Rule 56(b) of the Federal Rules of Civil Procedure

moves this Court for an Order granting Summary Judgment on

the ground that plaintiff has failed to produce evidence that

any product designed, manufactured or distributed by Celotex

Corporation was the proximate cause of the injuries alleged

within the jurisdictional limits of this Court”) (emphasis

added); Memorandum of Points and Authorities in Support of

Motion of Defendant Celotex Corporation for Summary

Judgment, id., at 175 (Plaintiff “must demonstrate some link

between a Celotex Corporation product claimed to be the

cause of the decedent’s illness and the decedent himself. The

record is totally devoid of any such evidence within the

jurisdictional confines of this Court”) (emphasis added); Tran-

script of Argument in Support of Motion of Defendant

Celotex Corporation for Summary Judgment, id., at 211 (“Our

position is ... there has been no product identification of

any Celotex products... that have been used in the District

of Columbia to which the decedent was exposed”) (emphasis

added)

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appendix 63

2. But cf. ante, at 324, 91 Ed 2d, at 274 (Wedo not mean that

the nonmoving party must produce evidence in-a form that

would be admissible at trial in order to avoid summary

judgment”).

3. See App 160 (letter from Aetna Life Insurance Co.)

(referring to the “asbestos that Mr. Catrett came into contact

with while working for Anning-Johnson Company” and noting

that the “manufacture of this product” was purchased by

Celotex); id., at 162 (letter from Anning-Johnson Co.) confirm-

ing that Catrett worked for the company and supervised the

installation of asbestos produced by the company that Celotex

ultimately purchased); id., at 164, 164c (deposition of Catrett)

description of his work with asbestos “in Chicago”).

4. See Catrett v John-Manville Sales Corp, 756 E2d 181, 185,

n 14 (1985) (“[T]he discussion at the time the motion was

granted actually spoke to venue. It was only the phrase ‘or

elsewhere,’ appearing with no prior discussion, in the judge’s

oral ruling at the close of argument that made the grant of

summary judgment even conceivably proper”).

5. Cf.n2, supra. The Court’s statement that the case should

be remanded because the Court of Appeals has a “superior

knowledge of local law,” ante, at 327, 91 L Ed 2d, at 276, is

bewildering because there is no question of local law to be

decided. Cf. Bishop b Wood, 426 Us 341, 345-347, 48 L Ed 2d

684, 96 S Ct 2074(1976).

The Court’s decision to remand when a sufficient ground

for affirmance is available does reveal, however, the Court’s

increasing tendency to adopt a presumption of reversal. See,

¢.g. New York b P.J. Video, Inc., 475 US 868, 884, 89 L Ed 871,

106 S. Ct 1610 (1986)(Marshall, J., dissenting); Icicle Seafood’s,

Inc. v Worthington, 475 US 709, 715, 89 L Ed 2d 739, 106 S Ct

1527 (1986) Stevens, J., dissenting); City of Los Angeles b Heller,

475 US 796, 800, 89 L Ed 2d 806, 106 S Ct 1571 (1986) (Stevens

J., dissenting); Pennsylvania b Goldhammer, 474 US 28, 31, 88 L

Ed 2d 183, 106 S Ct 353 (1986) (Stevens, J., dissenting). As a

matter of efficient judicial administration and of respect for

the sate and federal courts, I believe the presumption should

be precisely the opposite.

appendix 64

TWIN CITY CONSTRUCTION COMPANY OF

FARGO N. D.,

Respondent,

ITT INDUSTRIAL CREDIT COMPANY, Appellant.

No. C4-84-1113.

Court of Appeals of Minnesota.

Dec. 11, 1984.

Contractor commenced suit against lender, claiming

that lender was required to advance final payment

due under construction contract under theories of

express and implied contract, third-party beneficiary,

and equitable principle of unjust enrichment. The

District Court, Ramsey County, Hyan Segell, J., en-

tered summary judgment in favor of contractor, and

lender appealed. The Court of Appeals, Wozniak, J.,

held that: (1) lender was unjustly enriched by its re-

fusal to make final payment under construction con-

tract after completion of work by contractor, and (2)

contractor was entitled to recover from lender final

payment due as_ third-party beneficiary of loan

agreement between owner and lender.

Affirmed.

1. Judgment 181(8)

When contract terms are not patently ambigu-

ous, summary judgment in contractual dispute is

appropriate.

2. Contracts 176(1)

Where intent of parties my be determined en-

tirely from writing, construction of contract is for

court.

oe Rey Sean are Oa ea

appendix 65

3. Contracts 187(1)

Lender, regardless of disclaimer in loan agree-

ment, intended to benefit contractor as third-party

beneficiary of loan agreement between owner and

lender in view of lender’s insistence that contractor

vacate its enforceable mechanic’s lien in amount of

$600,000 and subordinate its interest in of $650,000

during pendency of construction as clear precondi-

tions to commitment of lender’s funds for completion

of construction project, in return for which lender

agreed that it would make progress payments as

work on project progressed.

4. Implied and Constructive Contracts 3

Lender was unjustly enriched by its refusal to

make final payment under construction contract after

completion of work by contractor.

5. Contracts 187(1)

After substantially completing construction proj-

ect, contractor was entitled to recover from lender

final payment due as third-party beneficiary of loan

agreement between owner and lender.

Syllabus by the Court

1. After substantially completing construction pro-

ject, contractor was entitled to recover from lender

final payment due as third party beneficiary of the

loan agreement between owner and lender.

2. In contracting with owner, lender intended to

benefit contractor, despite contrary disclaimer in

loan agreement.

3. If lender were allowed to keep final payment,

unjust enrichment would result.

appendix 66

Ronald H. McLean, Tenneson, Serkland, Lundberg,

Erickson & Marcil, Ltd., Fargo N. D., for respondent.

Brian Leonard, O’Neil, Burke & O’Neil, St. Paul, for

appellant.

Heard, considered, and decided by LESLIEee, P.J.,

and LANSING and WOZNIAK, JJ.

OPINION

WOZNIAK, Judge

This is an appeal from a summary judgment,

granting Twin City Construction Company final

payment due from lender, ITT Industrial Credit

Company, based on principles of third party bene-

ficiary and unjust enrichment. ITT claims Twin City

is not a third party beneficiary of the loan agree-

ment and, further, that it has not been unjustly en-

riched. We affirm.

FACTS

Twin City contracted with Bridge Street Partner-

ship for the construction of a Holiday Inn in New

Ulm, Minnesota, in June 1979.

Constriction began immediately, but halted in No-

vember after Twin City had completed $600,000 work

of work, and Bridge Street had failed to make pro-

gress payments. Twin City then perfected a me-

chanic’s lien for the full amount.

Bridge Street sought a resume loan from ITT in

order to complete the Holiday Inn.

sie? Ried. tic I nha PNR FoF

appendix 67

As part of its bargain with Bridge Street, ITT

demanded the release of the mechanic’s lien. Fur-

ther, it required Twin City to subordinate its inter-

est in the sum of $650,000 during the pendency of

the construction. twin City also agreed to complete

the Holiday Inn project despite and default by

Bridge Street of any payments due Twin City. Fi-

nally, it agreed that it would not be entitled tc any

lien rights on its own behalf or on behalf of any

subcontractors or materialmen. Essentially, Twin City

was to complete the construction project without any

recourse whatsoever against the Holiday Inn project.

A subordination agreement detailing these promises

was signed by Twin City and Bridge Street. Having

secured these concessions from Twin City through

Bridge Street, ITT finalized the loan of #$3,450,000

ina written agreement dated August 7, 1980. In the

agreement, ITT committed $2,900,00 specifically for

construction costs to complete the Holiday Inn,

which it was to pay directly to Twin City. In ad-

dition, ITT took an assignment of the original con-

struction agreement between Bridge Street and Twin

City. Finally, a disclaimer was written into the

agreement which reads: “No third paryt is entitled

to rely on any provisions in this agreement.”

Twin City resumed construction on August 15,

1980. During the period of construction, ITT made

progress payments directly to Twin City upon

Bridge Street’s approval.

Each payment was made after request by Twin

City, by the final request of $34,000, made on No-

vember 13, 1981, was not honored. Twin City had

completed all the steps necessary to receive the final

funds. ITT refused to make the final payment,

claiming Bridge Street was in default of the loan

agreement. The request for final payment was prior

appendix 68

in time to the default, which occurred on March

10, 1982.

Twin City commenced suit, claiming that ITT was

required to advance the remaining $34,000 under the

theories of express and implied contract, third party

beneficiary, and the equitable principle of unjust

enrichment.

The trial court granted Twin City’s motion for

summary judgment, based on theories of third party

beneficiary and unjust enrichment. ITT appeals.

ISSUE

Was Twin City entitled to judgment as a matter of

law?

A. As a third party beneficiary?

B. Under the theory of unjust enrichment?

ANALYSIS

Under Minnesota procedure, summary judgment is

proper when:

[T}he pleadings, depositions, answers to interrogato-

ries, and admissions on file, together with the affi-

davits, if any, show that there is no genuine issue

as to any material fact and that either party is en-

title to judgment asa matter of law.

Min.R. Civ.P 56.03. Viewing the facts from the light most favorable

to the losing party, the prevailing party must show there is clearly

no genuine issue of material fact. Rients v. International Harvester

Co., 346 N.W. 2d 359 (Minn. Ct, App. 1984).

[1,2] When contract terms are not patently

ambiguous, summary judgment is appropriate.

Matter of Turners Crossroads Development Co., 277

N.W. 2d 364 (Minn.1979). Furthermore, where the in-

pigtail Sie eeetGel ee re so tego

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OO a,

appendix 69

tent of the parties may be determined entirely from

the writing, the construction of the contract is for

the court. Id.

Here, the dispute is over the legal effect of the

loan agreement between ITT and Bridge Street. The

terms of the contract are not ambiguous and _ not ex-

trinsic evidence is necessary to interpret it. Sum-

mary judgment was appropriate.

A. THIRD PARTY BENEFICIARY

A third party beneficiary is one to whom the

promisee owes or is believed to owe a duty

which is discharged by the promisors perform-

ance,

and the contractual with the third pary

beneficiary acquires is to enforce a promise

made for his benefit which he otherwise would

not be able to enforce.

Crow & Crow, Inc. v. St Paul-Mercury Indemnity

Co., 247 Minn,426, 428-429, 77 N. W.2d 429, 431 (1956).

The Minnesota Supreme Court recently set forth

the criteria for the recognition of third party benefi-

ciary rights in Cretex Companies,Inc v. Construction

Leaders, Inc., 342 N.W. 2d 135 (Minn,1984).

The Cretex court adopted the intended benefici-

ary approach of the Restatement (Second) of Con-

tracts 302(1979). It provides that a third party in-

tended beneficiary can enforce a contract if it

is appropriate and either the duty owed or the in-

tent to benefit test is met. Id. at129, Contrary to

ITT’s contention, it is not necessary to satisfy both

test.

aaa a al

appendix 70

The duty-owed test is met if the promisor’s per-

formance under the contract discharges a duty oth-

erwise owed the third party by promisee. The intent

to benefit test is met if the contract expresses some

intent by the parties to benefit the third party

through contractual performance.

Duty-Owed

In the instant case, Twin City agreed to construct

a Holiday Inn for Bridge Street. The duty owed by

Bridge Street to Twin City was the obligation to

pay for the Holiday Inn. That duty was assumed by

ITT when it committed itself to the construction

loan. Habin assumed the obligation, it proceed to

discharge the duty owed by Bridge Street by paying

Twin City the progress payments as the work pro-

gressed. Thus, the promisor’s (ITT) performance un-

der the contact discharged a duty owed the third

party (Twin City) by the promisee (Bridge Street);

th duty-owed test was met.

Intent to Benefit

ITT argues that the intent to benefit test cannot

be satisfied in light of the disclaimer, a clear ex-

pression of an intent not to benefit any third party.

In determing whetier ITT intended to benefit

Twin City by its loan agreement with Bridge Street,

it is mecessary to read the contract in light of all

the circumstances at the time of contracting. The

pertinent inquiry in “to who is performance to be

rendered?” Buchman Plumbing Co., Inc. v. Regents

of the University of Minnesota, 298 Minn, 328, 335,

215 N. W. 2d 479, 484 (Minn.1974).

bh RTS send aie EI

ha les Sg

appendix 71

This court may examine the contract language to

ascertain the real exchange of promises. Trans-Bay

Engineers and Builders, Inc. y. Hills, 551 F.2d 370

(D.C. Cir. 1976).

[3] Considering all the circumstances and all the

documents, it is clear that Twin City is an intended

beneficiary of the loan agreement. ITT insisted that

Twin City vacate its enforceable lien in the amount

of $600,000, and further required that it’ subordinate

its interest in the sum of $650,000 during the ten-

dency of the construction. These were clear precon-

ditions by ITT to the commitment of its funds for

the completion of the Holiday Inn. In return for

these commitments by Twin City, ITT agreed that it

would, and did, inn fact, make progress payments as

the work on the Holiday Inn progressed. It did this

until a final sum of $34,000 in retainage remained

to be paid. We conclude that ITT regardless of the

disclaimer, intended to benefit Twin City.

The Default

ITT claims, however, that even if Twin City is a

third party beneficiary under the contract, Twin City

is barred from recovery because Bridge Street de-

faulted.

It is true that as a third party beneficiary, Twin

City was not entitled to payment once Bridge Street

defaulted. Trans-Bay, 551 F.2d at 379,380. However,

Bridge Street was not in default until it failed to

make an interest payment due on March 10, 1982.

Default on a loan agreement does not constitute a

bar to recovery by a third party beneficiary when

that default occurs after substantial completion of

the project.

appendix 72

ITT was informed in November 1981 that Twin

City had substantially completed performance under

the contract. Default was noted five months later, in

March 1982. Thus, at the time of substantial com-

pletion of the project, Bridge Street was not in de-

fault and Twin City was entitled to recovery.

B. UNJUST ENRICHMENT

If ITT were permitted to benefit from the work

performed by Twin City and also to avoid paying

out the complete funds relied upon by Twin City for

its performance,’ it would be unjustly enriched. As

the Trans-Bay court pointed out, it would be inequi-

table to permit the financier of a construction proj-

ect to retain funds committed to a project after

completion of the work by the contractor. Id. at 382.

[4] As part of the consideration for the project,

Twin City had to release its mechanic’s lien and

waive any other recourse against the project for

construction costs not covered by the funds promised

by ITT. Such a reqnirement, written at the insis-

tence of ITT, was doe for ITT’s benefit, and as a

practical matter, it is unlikely that the loan would

have been granted without that condition. Under

these facts, recovery is proper to prevent ITT from

unjustly benefiting from the work completed by

Twin City.

DECISION

[5] Whether viewed from the standpoint of a third

party beneficiary or from the standpoint of unjust

enrichment, Twin City is clearly entitle to recover in

this factual setting. After substantially completing a

construction project, contractor was entitled to re-

cover from lender final payment due as a third

‘

;

appendix 73

party beneficiary of the loan agreement between

owner and lender. The parties to the loan agree-

ment intended to benefit contractor despite the dis-

claimer prohibiting a third party reliance on the

agreement.

Affirmed.

appendix 74

FEDERAL RULES OF CIVIL PROCEDURE

Rule 56

Rule 56. Summary Judgment

(a) FOR CLAIMANT. A party seeking to recover

upon a claim, conterclaim, or cros-claim or to ob-

tain a declaratory judgment may, at any time after

the expiration of 20 days from the commencement of

the action or after service of a motions for summary

judgment by the adverse party, move with or with-

out supporting affidavits for a summary judgment in

the party’s favor upon all or any part thereof.

(b) FOR DEFENDING PARTY. A party against

whom a claim, counterclaim, or cross-claim is as-

serted or a declaratory judgment is sought may, at

any time, move with or without supporting affidavits

for a summary judgment in the party’s favor as to

all or any part thereof.

motion shall be served at least 10 days before the

time fixed for the hearing. The adverse party prior

to the day of hearing mat serve opposing affidavits.

The judgment sought shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits,

if any, show that the moving party is entitled to a

judgment as a matter of law. A summary judgment,

interlocutory in character, may be rendered on the

issue of liability alone although there is a genuine

issue as to the amount of damages.

(d) CASE NOT FULLY ADJUDICATED ON

MOTION. If on motion under this rule judgment is

not rendered upon the whole case or for all the

PEL tne year

LORIN, Se i

appendix 75

relief asked an trial is necessary, the court at the

hearing of the motion, by examining the pleadings

and the evidence before it and by interrogating

counsel, shall if practicable ascertain what material

facts exist without substantial controversy and what

material facts are actually and in good faith contro-

verted. It shall therupon make an order specifying

the facts that appear without substantial controversy,

including the extent to which the amount of dam-

ages or other relief is not in controversy, and di-

recting such further proceedings in the action as are

just. Upon the trial of the action the facts so speci-

fied shall be deemed established, and the trial shall

be conducted accordingly.

(e) FORM OF _ AFFIDAVITS; FURTHER

TESTIMONY; DEFENSE REQUIRED. Supporting and

opposing affidavits shall be made on personal knowl-

edge, shall set forth such facts as would be admis-

sible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated

therein. Sworn or certified copies of all papers or

parts thereof referred to in an affidavit shall be

attached thereto or served therewith. The court may

permit affidavits to be supplemented or opposed by

depositions, answers to interrogatories, or further

affidavits. When a motion for summary judgment is

made and supported as provided in this rule, an

adverse party may not rest upon the mere allega-

tions or denials of the adverse party’s pleading, but

the adverse party’s response, by affidavits or as

otherwise provided in this rule, must set forth spe-

cific facts showing that there is a genuine issue for

trial. If the adverse party does not so respond,

summary judgment, if appropriate,’ shall be entered

against the adverse party.

appendix 76

(f) WHEN AFFIDAVITS ARE UNAVAILABLE.

Should it appear from the affidavits off a party op-

posing the motion that the party cannot for reasons

stated present by affidavit facts essential to justify

the party’s opposition, the court may refuse the

application for judgment or may order a

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