Garn L. Baum and Peggy Baum D/B/A Garn L. Baum v. John Gillman, Glade Gillman, Dean Gillman, Gillman Brothers, Harley Gillman, Muir-Roberts, Merrill Gappmayer, Clyde Lunceford, Elberta Farm Corporation and Deseret Title Holding Corporation

Citations: 648 F.2d 1292; 31 Fed. R. Serv. 2d 1316; 1981 U.S. App. LEXIS 13396Docket: 80-1043

Court: Court of Appeals for the Tenth Circuit; May 12, 1981; Federal Appellate Court

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An appeal was filed by Garn L. Baum and Peggy Baum against multiple defendants, including John Gillman and others, in an antitrust case. The United States Court of Appeals, Tenth Circuit, heard arguments on January 26, 1981, and issued a decision on May 12, 1981. The trial court proceedings lasted around four years, during which approximately thirty depositions were conducted, and discovery was completed. The defendants submitted motions for summary judgment supported by affidavits and analyses of depositions, while the plaintiffs failed to respond as required under Rule 56.

The plaintiffs alleged that the defendants orchestrated a boycott against their fruit processing plant, imposed unreasonable bond requirements, engaged in practices to create a monopoly through cash rebates to growers, and initiated vexatious litigation. The defendants’ motions for summary judgment were scheduled for a hearing on August 31, 1979. Shortly before this date, the plaintiffs changed attorneys, requesting a continuance, which the court granted, stipulating no further continuances would be allowed. 

Despite having additional time to prepare, the plaintiffs did not submit any responsive materials by the rescheduled hearing date of October 15. Their previous attorney had indicated there were factual issues, but the subsequent affidavits filed were brief and addressed only minor matters, and they were not referenced further. When the hearing commenced, the plaintiffs' attorney indicated a lack of preparation.

Mr. Black, the attorney for the plaintiffs, expressed to the court his struggle to understand the case's facts and law after only a month and a half of involvement. He requested to respond to the filed motions one at a time, estimating he could handle about one per month, indicating he was unprepared to address the motions for summary judgment. The court confirmed that a hearing would take place despite his lack of preparation. During the hearing, the plaintiffs, through their attorney, indicated they had no further comments, suggesting they believed they could present a case if the matter went to trial. The court subsequently granted the defendants' motions for summary judgment, leading the plaintiffs to file a Motion to Reconsider, which was denied after oral argument.

The Motion to Reconsider cited two main grounds: ineffective assistance of counsel due to excusable neglect, supported by an attached affidavit, and the retention of a new attorney who would assist in the case. The affidavit detailed the attorney's inability to review essential materials and prepare adequately due to time constraints following his appointment. It asserted that with more time, the plaintiffs could have successfully contested the summary judgment motions, claiming they could demonstrate material factual issues against some defendants.

On appeal, the plaintiffs contended that the trial court abused its discretion by not granting an additional continuance when their attorney admitted to being unprepared. The attorney had previously requested a thirty-day continuance, which the court granted, plus additional time, making him aware of the time limitations. He did not ask for further time during the hearing.

The record indicates that plaintiffs' attorney had access to discovery materials for approximately six months prior to the October hearing, including depositions and interrogatory answers. Despite being co-counsel, the plaintiffs did not take action during this period. The trial judge did not abuse discretion in denying additional time for plaintiffs, as their attorney acknowledged unpreparedness at the hearing, which does not equate to ineffective assistance of counsel. The attorney's failure to prepare and refusal to proceed at the hearing cannot excuse non-compliance with Rule 56 regarding summary judgment.

Plaintiffs did not invoke Rule 56(f) to argue that further discovery was needed, likely because discovery was complete. The attorney suggested he could eventually respond but did not formally identify this under Rule 56(f), nor did he file an affidavit, leaving the trial court uninformed on this matter.

The excerpt highlights that there are no special restrictions on applying Rule 56 in antitrust cases, as established in case law, including Poller and Aladdin Oil Co. v. Texaco, Inc. The burden is on the moving party to demonstrate the absence of genuine issues of material fact, as emphasized in Adickes v. Kress Co. and First National Bank of Arizona v. Cities Service Co. A genuine issue exists if sufficient evidence is presented to require resolution by a jury or judge.

A motion for summary judgment must be supported by specific facts; merely relying on allegations or denials is insufficient. An adverse party must respond with affidavits or evidence demonstrating a genuine issue for trial. If the opposing party fails to do so, summary judgment may be granted. The language in Rule 56(e) indicates that if a properly made motion demonstrates the moving party has met their burden, judgment should be entered accordingly. 

In this case, the defendants submitted a comprehensive analysis of 125 pages, including depositions and other documentary evidence, which was not contested by the plaintiffs. Consequently, the trial and appellate courts may consider this unchallenged evidence as valid support for the motion. If it reveals no material fact issues, summary judgment must be granted. 

Rule 56(c) stipulates that judgment is to be rendered if the existing records show no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The 1963 amendment to Rule 56(e) was intended to prevent parties from opposing summary judgment solely based on well-pleaded allegations, a practice that had been upheld in some prior cases. Subsequent rulings reaffirm this interpretation, emphasizing that opposition to a properly supported summary judgment must include specific factual evidence.

Rule 56(e) places the burden on Waldron to produce evidence supporting his conspiracy claims only after Cities Service has conclusively demonstrated that the facts he relies on do not support his interpretation. The court affirms that this is a correct application of the rule. It rejects any interpretation that would allow plaintiffs in antitrust cases to proceed to trial based solely on their allegations without significant evidence. The court emphasizes the importance of not extending the right to trial to cases lacking probative evidence. In typical cases, when a motion for summary judgment is unopposed, the trial court has no discretion but to grant it based on the motions and supporting materials presented. The court concludes that there are no genuine material fact issues, thus granting defendants judgment as a matter of law. The ruling is affirmed.