Federal Bar Update: Be careful with summary judgment

As federal court practitioners know, in seeking summary judgment, the movant must set forth the facts favorably for the non-movant. In ­­­­­­­­­­­­­­­­­­­Littler v. Martinez, et al., 2:16-cv-00472-JMS-DLP, (S.D. Ind. March 5, 2019), Chief Judge Jane Magnus-Stinson issued a 44-page opinion reinforcing the importance of this requirement. Littler is a must-read decision.

In assessing a defense summary judgment motion in a pro se prisoner case, the chief judge set forth the standard for summary judgment, writing, “The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014).” The court continued, “When defendants move for summary judgment or reply to their motion for summary judgment, there must be a good-faith basis to argue that summary judgment is warranted.” Littler, 2019 U.S. Dist. LEXIS 34735 *8.

In Littler, the court found this standard violated and imposed serious sanctions for pursuit of summary judgment without revealing adverse evidence. The court wrote, “The defendants’ approach is essentially ‘it can’t hurt to ask. It can. Any frivolous motion[] [or] pleading … is subject to sanctions.’ Meeks v. Jewel Companies, Inc., 845 F.2d 1421, 1422 (7th Cir. 1988).”

Chief Judge Magnus-Stinson commented on the seriousness of this issue in the 7th Circuit and the Southern District, writing: “The Seventh Circuit sounded a clear warning to defendants that the failure to take seriously the summary judgment standard is improper and sanctionable: ‘[The defendant] seems to have based its litigation strategy on the hope that neither the district court nor this panel would take the time to check the record. Litigants who take this approach often (and we hope almost always) find that they have misjudged the court. We caution [the defendant] and other parties tempted to adopt this approach to summary judgment practice that it quickly destroys their credibility with the court.’” Littler, quoting Malin v. Hospira, Inc., 762 F.3d 552, 564-65 (7th Cir. 2014).

Further quoting Malin, the chief judge added: “This approach to summary judgment is also both costly and wasteful. If a district court grants summary judgment in a party’s favor based on its mischaracterizations of the record, the judgment will in all likelihood be appealed, overturned, and returned to the district court for settlement or trial. This course is much more expensive than simply pursuing a settlement or trying the case in the first instance. Further, the costs incurred while engaging in these shenanigans stand a real chance of being declared excessive under 28 U.S.C. § 1927, even if the abusive party prevails at trial on remand. Risking such pitfalls in the hope of avoiding a trial is a dramatic miscalculation of the risks and rewards of each approach.” Littler, quoting Malin, 762 F.3d at 65.

Chief Judge Magnus-Stinson then added, “Despite the Seventh Circuit’s warning, ‘these shenanigans’ remain all too common in this District and are certainly present in this case.”

District judge practiceand procedure requirements

Practitioners in the Northern District of Indiana and Southern District of Indiana benefit from a longstanding practice by the two courts to align their local rules as much as possible. Although each court’s local rules have some unique variations, most are the same or similar, particularly when compared to other district courts in a state.

Yet each district judge — within their own district and as compared to other districts — has their own unique preferences and practices. Some of these are unwritten, such as Judge S. Hugh Dillin’s familiar retort to trial counsel through his many decades of service, “Hurry up and make the pitch,” while others are now, thankfully, memorialized in formal written guidelines.

It is beyond the scope of this column to comment on each judge’s practices and procedures, but to point out that these exist and are publicly available on each court’s website. Senior Judge Robert L. Miller Jr. in the Northern District, for instance, has a detailed listing of hyperlinked topics on his page, providing guidance on everything from jury selection, (e.g., “Attorneys for the parties may view the juror questionnaires in the Clerk’s Office after 2:00 p.m. on the Friday before trial commences”), to trial decorum (“Counsel must ask permission to approach the witness. Counsel need not use the podium. The court expects counsel to stand, if they are able, when questioning witnesses and when addressing the court”).

Other district judges have a single “Practices and Procedures” document. However, each judge has organized their own guidance materials, and they are expected to be known by counsel and followed. Southern District Judge J.P. Hanlon, for instance, has an 18-page Practices And Procedures document (available on his page of the court’s website), that begins, “Counsel appearing before Judge Hanlon are expected to read and comply with these Practices and Procedures. Counsel may seek modification of any specific part of these Practices and Procedures as may be appropriate based on the unique facts and circumstances of a case. The Court may also alter them sua sponte as appropriate in any case. Inquiries should be directed to the Courtroom Deputy Clerk… .”

As an example of one of Judge Hanlon’s requirements (that Judge Tanya Walton Pratt also employs), at summary judgment, any deposition excerpts cited must be cited to page and line number, and the supporting appendix must include the three pages immediately preceding and following each cited excerpt.

Because the judges’ various “practice and procedure” requirements address various issues that arise throughout the life of a case, counsel should regularly consult them with each different stage, and with each different filing.•

• John Maley — [email protected] — is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters and appeals. He clerked for Judge Larry McKinney from 1988-90. Opinions expressed are those of the author.