72 The Alabama Lawyer 38 (2011). By denying your motion for summary judgment on legal grounds, the district court has foreclosed your ability to offer at trial a legal argument, claim or defense to which you believe your client is entitled.

• Author: By Abbott Marie Jones

Alabama Lawyer

2011.

72 The Alabama Lawyer 38 (2011).

By denying your motion for summary judgment on legal grounds, the district court has foreclosed your ability to offer at trial a legal argument, claim or defense to which you believe your client is entitled

By denying your motion for summary judgment on legal grounds, the district court has foreclosed your ability to offer at trial a legal argument, claim or defense to which you believe your client is entitled.By Abbott Marie JonesSuppose the federal district court has denied your motion for summary judgment, not because factual disputes exist but because of a legal determination that your client was not entitled to a judgment as a matter of law. The case proceeds to trial, but as a result of the summary judgment denial, the district court has overruled and removed from the case your client's challenge to personal jurisdiction, assertion of a statute of limitations defense, assertion of immunity, assertion of a presumption, in addition to arguments about interpretation of a contract and the interpretation of a statute. By denying your motion for summary judgment on legal grounds, the district court has foreclosed your ability to offer at trial a legal argument, claim or defense to which you believe your client is entitled. How can you, the prudent and zealous advocate, preserve the error and properly present it to the appellate court?

The Eleventh Circuit will not review a district court's denial of summary judgment following a full trial on the merits. While every circuit has accepted this same general rule, most circuits also have recognized an exception to the rule where the issue presented is a "pure question of law." The Eleventh Circuit has not adopted this exception and continues to decline review of all pre-trial summary judgment denials. Because the circuits have divergent procedures for accepting appeals from summary judgment denials following a full trial, the United States Supreme Court recently heard oral arguments in a case that asks the Court to determine whether and under what circumstances courts of appeals may review such summary judgment denials. The focus of this article will be the different approaches used by the circuits and the potential implications that could result from the Supreme Court's decision on the issue.

Purpose of Summary

Judgment Practice

The summary judgment procedure is an integral part of the Federal Rules of Civil Procedure. Pursuant to Rule 56, a party may move for summary judgment as to all or part of a claim. On a motion for summary judgment, the district court must determine whether any genuine issues of material fact exist and, if not, whether the movant is entitled to judgment as a matter of law. According to the Advisory Committee Notes to the 1963 amendments "[t]he very mission of summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial."

The U.S. Supreme Court has maintained that one of the principal purposes of the summary judgment procedure is to identify and eliminate claims or defenses that are not factually supported. In Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1), the Court averred that summary judgment is not a "disfavored procedural shortcut" but instead plays an important role in secur[ing] the just, speedy, and inexpensive determination of every action.'" Though summary judgment is intended to dispose of factually unsupported claims, district courts also have discretion to "deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

If the district court denies a summary judgment motion because genuine issues of material fact remain, or because the moving party is not entitled to judgment as a matter of law, or because there is reason to believe the better course is proceeding to trial, the case proceeds to a full trial on the merits. The question then becomes whether, and under what circumstances, the summary judgment movant may appeal the pre-trial denial of summary judgment following trial.

Eleventh Circuit's Decision in Holley

The Eleventh Circuit first considered whether it would hear an appeal from a summary judgment denial following a full trial on the merits in Holley v. Northrop Worldwide Aircraft Services, Inc., 835 F.2d 1375, 1376-78 (11th Cir. 1988). In Holley, the defendant had moved for summary judgment as to the plaintiff's retaliatory discharge claim, but the district court denied the motion and the case proceeded to trial. Following the trial, the defendant asked the Eleventh Circuit to review the district court's denial of its pre-trial summary judgment motion.

The Eleventh Circuit observed that the summary judgment procedure was designed to decrease the time, effort, and costs associated with a full trial on the merits in cases where the trial process is not necessary. Relying on the purpose behind Rule 56, the Eleventh Circuit declared that a summary judgment determination "was not intended to be a bomb planted within the litigation at its early stages and exploded on appeal." 835 F.2d at 1377. Though it invoked the broad rationale behind summary judgment practice to support its conclusion, the Court narrowed its holding to the specific circumstances presented in Holley:

[W]e hold that the party whose motion for summary judgment was denied may not appeal the motion if the party admits that ... by trial the evidence produced by the opposing party was sufficient to be presented to the jury ... or ... by trial the evidence had been supplemented or changed in some manner favorable to the party who opposed summary judgment.Id. at 1377-78. The Eleventh Circuit, therefore, left open the possibility that it might review some pre-trial summary judgment denials under circumstances different from those presented in Holley.

Circuits Adopt Broad Rationale of Holley-The General Rule is Born

Rather than adopting only the narrow holding of Holley, all of the circuits to consider the issue since Holley have adopted a broad general rule based on the rationale articulated by the Eleventh Circuit in support of its holding. For example, the Fourth Circuit has characterized appellate review of pre-trial summary judgment denials as problematic, because those denials are based on incomplete records that are superseded by the evidence introduced at trial. Chesapeake Paper Prods. Co. v. Stone and Webster Eng'g Corp., 51 F.3d 1229, 1236 (4th Cir. 1995). Even if the evidence presented at trial is identical, the Fourth Circuit views the jury's verdict as superior to the summary judgment denial, because the verdict is based upon credibility assessments and fact finding that the district court cannot engage in during summary judgment consideration.

Likewise, the Fifth Circuit has long held that "'[o]nce trial [begins], the summary judgment motions effectively became moot.'" Black v. J.I. Case Co., 22 F.3d 568, 570-71 (5th Cir. 1994) (quoting Wells v. Hico ISD, 736 F.2d 243, 251 n.9 (5th Cir. 1984)). In the Fifth Circuit, appellate review of pre-trial summary judgment denials is contrary to procedural order and justice, because such review "diminish[es] the discretion of the district court" to determine that, "even in the absence of a factual dispute," summary judgment should be denied "'where there is reason to believe that the better course would be to proceed to a full trial.'" Id. at 571 (quoting Anderson, 477 U.S. at 255).

The Seventh Circuit has observed that pre-trial summary judgment denials become essentially moot after a full trial on the merits, and has concluded that appellate review of those denials is generally inappropriate. The Court explained that a summary judgment denial "'decides one thing-that the case should go to trial; [that denial] does not settle or even tentatively decide anything about the merits of the claim.'" Watson v. Amedco Steel, Inc., 29 F.3d 274, 277 (7th Cir. 1994) (quoting Switz. Cheese Ass'n v. Horne's Mkt., Inc., 385 U.S. 23, 25 (1966)). The Seventh Circuit, therefore, will not "step back in time" to determine whether a different judgment may have been warranted on the factual record presented at summary judgment.

Considering the competing interests in justice, the Ninth Circuit has observed that "the party moving for summary judgment suffers an injustice if his motion is improperly denied... . However, we believe it would be even more unjust to deprive a party of a jury verdict after the evidence was fully presented, on the basis of an appellate court's review of whether the pleadings and affidavits at the time of the summary judgment motion demonstrated the need for a trial." Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359 (9th Cir. 1987). In the Ninth Circuit, "[t]he appropriate forum to review the denial of a summary judgement [sic] motion is through interlocutory...