The SFLC and May 20 , 2010 Summary Judgment conference

[RJack]

The SFLC has been granted a pre-motion conference with Judge Scheindlin
requesting permission to file for FRCP 56 Summary Judgment with respect
to defendant Western Digital Electronics LLC. Western Digital has filed
an ABC (assignment for the benefit of creditors) in the state of
California and does not anticipate responding to the SFLC suit.

Should Judge Scheindlin grant permission for the SFLC to file for
Summary Judgment, the controlling law in the Second Circuit which
defines the guidelines for a district court to follow is:

"Federal Rule of Civil Procedure 56 provides that if a non-moving party
fails to oppose a summary judgment motion, then "summary judgment, if
appropriate, shall be entered against" him. Fed.R.Civ.P. 56(e) (emphasis
added). This Court has made clear, however, that where the non-moving
party "chooses the perilous path of failing to submit a response to a
summary judgment motion, the district court may not grant the motion
without first examining the moving party's submission to determine if it
has met its burden of demonstrating that no material issue of fact
remains for trial." Amaker, 274 F.3d at 681. If the evidence submitted
in support of the summary judgment motion does not meet the movant's
burden of production, then "summary judgment must be denied even if no
opposing evidentiary matter is presented." Id. (internal quotation marks
omitted); Giannullo, 322 F.3d at 141 (noting that the "non-movant is not
required to rebut an insufficient showing"). Moreover, in determining
whether the moving party has met this burden of showing the absence of a
genuine issue for trial, the district court may not rely solely on the
statement of undisputed facts contained in the moving party's Rule 56.1
statement. It must be satisfied that the citation to evidence in the
record supports the assertion. Giannullo,  322 F.3d at 143 n. 5 (stating
that not verifying in the record the assertions in the motion for
summary judgment "would derogate the truth-finding functions of the
judicial process by substituting convenience for facts").

An unopposed summary judgment motion may also fail where the undisputed
facts fail to "`show that the moving party is entitled to judgment as a
matter of law.'" Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996) (per
curiam) (quoting Fed.R.Civ.P. 56(c)). Where the order granting summary
judgment is insufficiently clear to permit this Court to determine
whether the grounds for granting the motion are valid, remand is
appropriate. See Miranda v. Bennett, 322 F.3d 171, 175 (2d Cir.2003);
Amaker, 274 F.3d at 681 n. 1 (vacating and remanding the judgment of the
district court that granted an unopposed summary judgment motion is
singularly appropriate "as the district court is in a far better
position to conduct a summary judgment analysis in the first instance")."
http://ftp.resource.org/courts.gov/c/F3/373/373.F3d.241.03-7030.html

Sincerely,
RJack :)