United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, United States District Judge
matter is before the court following telephonic conference
held March 2, 2017, pursuant to Rule 16 of the Federal Rules
of Civil Procedure. Plaintiff appeared through counsel Jose
A. Coker, Quintin D. Byrd, and R. Jonathan Charleston.
Defendant appeared through counsel Nora F. Sullivan and
Jonathan A. Berkelhammer. This order memorializes matters
discussed at conference and responds to request for
clarification of the court's order on summary judgment,
entered February 9, 2017.
parties' prior settlement efforts, concluding in impasse,
briefly were discussed. It appears further efforts are
unlikely at this time to result in a negotiated case
resolution. In response to inquiry by the court concerning
anticipated length of trial, in aid to its determination of a
trial setting, question was raised by counsel as to the
effect of the court's denial of summary judgment.
Clarification of its prior order respectfully was requested.
court proceeds here immediately to its discussion of the
matter, where the case background is a matter of record. In
its prior order, the court denied summary judgment on
plaintiff's claims. The court refers the parties to that
order for the reasons why a triable issue of fact exists on
plaintiff's claim for breach of contract. The parties
also are referred to that order for the reasons why
plaintiff's claim for specific performance fails under
law and why it cannot under law maintain a claim here
premised upon the North Carolina Unfair and Deceptive Trade
Practices Act (“UDPTA”). N.C. Gen Stat. 75-1.1.
16 status conference serves multiple purposes, many of which
are memorialized in Rule 1 of the Federal Rules of Civil
Procedure, which countenances a rules construction that will
“secure the just, speedy, and inexpensive determination
of every action and proceeding.” More specifically, a
Rule 16 conference may be convened, as here, to discuss
settlement activities, expedite the case disposition, improve
the quality of the trial, and discourage wasteful pretrial
activities. Fed.R.Civ.Pro. 16(a).
for plaintiff's question as to the status of the specific
performance and UDPTA claims was raised in response to the
court's question as to estimated length of trial. A
party's calculus of the appropriate amount and type of
resources to be dedicated to a trial effectively can only
flow from an understanding of what issues remain for trial.
At conference, counsel for each side expressed divergent
understandings as to the effect of the court's denial of
summary judgment upon those claims. Among the lawyers for
plaintiff there seemed some difference of opinion, too.
court elevated plaintiff's question to the form of an
oral motion, which it took under advisement indicating, in
response to defendant, that it was not necessary for it or
any party to provide briefing on the issue of the meaning of
its prior order on summary judgment. However, in the context
in which the court now has decided to address the question, a
reasonable time to respond is mandated.
56(f) of the Federal Rules of Civil Procedure provides in
part that “[a]fter giving notice and a reasonable time
to respond, the court may . . . consider summary judgment on
its own after identifying for the parties material facts that
may not be genuinely in dispute. Fed.R.Civ.P. 56(f)(3);
accord Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986). Where a court gives notice that it is considering
entering sua sponte summary judgment, the responding
party must appreciate its status as “target” of
the court's inquiry, and possess that motivation when
preparing a response. John G. Alden, Inc. of Mass. v.
John G. Alden Ins. Agency of Fla., Inc., 389 F.3d 21, 25
(1st Cir. 2004); accord United States Dev. Corp. v.
Peoples Fed. Sav. & Loan Ass'n., 873 F.2d 731,
735 (4th Cir. 1989). Accordingly, a party responding to a
Rule 56(f) inquiry is entitled to “an adequate
opportunity to demonstrate a genuine issue of material
fact.” United States Dev., 873 F.2d at 735.
is hereby given that the court is considering entering
sua sponte partial summary judgment in favor of
defendant with respect to plaintiff's claim for specific
performance and its claim pursuant to the UDTPA. The court
refers the parties to its prior order for identification of
material facts not genuinely disputed and the court's
discussion of applicable law.
foregoing reasons, where the court is considering entering
sua sponte partial summary judgment in favor of
defendant on plaintiff's specific performance claim and
its claim pursuant to the UDTPA:
1. Plaintiff is accorded opportunity to show cause why
partial summary judgment should not issue in favor of
defendant with respect to those claims. Plaintiff shall have
21 days within which to respond to the court's notice.
Plaintiffs response shall not exceed 15 pages in length. If
no response timely is received, the clerk will be directed to
enter judgment in defendant's favor on these two claims,
with trial to be set on plaintiffs remaining breach of
2. Defendant shall have 21 days following service of
plaintiff s response within which to reply. Its reply shall