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Respond to Summary Judgment Motions, Even the Crappy Ones

By Robyn Hagan Cain on April 08, 2013 | Last updated on March 21, 2019

We get it. Sometimes someone insults you, and the best response is a haughty “I’m not going to dignify that with a response.”

The rules, however, are slightly different when someone insults your complaint in a lawsuit. When a defendant moves for summary judgment based on your “complete lack of proof concerning all of the essential elements” of your claim, you can’t just attack the perceived deficiencies of his claim without offering any evidence to support your case.

At least, you can’t do that in the Seventh Circuit Court of Appeals.

Leon Modrowski had a bone to pick with TAQ Properties and Capps Management after they fired him, withheld $11,000 in wages, had him jailed, and locked him out of his personal Yahoo email account. Okay, that seems fair.

Modrowski took the defendants to court under the Computer Fraud and Abuse Act for interfering with the email account. Modrowski's initial complaint was dismissed with prejudice on the defendants' 12(b)(6) motion for failure to allege an injury of at least $5,000, but he later filed an amended complaint. The defendants moved for summary judgment, citing Modrowski's "complete lack of proof."

Instead of responding with evidence to support his allegations, Modrowski attacked the "perceived deficiencies of the defendants' motion." He incorrectly believed that he didn't have an obligation to respond because the motion was defective, and he chose to construe the summary judgment motion as another 12(b)(6) motion.

Though he explained how his factual allegations satisfied every element of his claims, Modrowski didn't "go beyond the pleadings" to demonstrate that there was evidence "upon which a jury could properly proceed to find a verdict" in his favor. And that's why the district court dismissed his claim.

Monday, the Seventh Circuit Court of Appeals affirmed that decision, noting "Once the defendants pointed out the gap that they believed existed in Modrowski's case, he was obliged to point to evidence that, if believed by the trier of fact, would be sufficient to show that his loss did in fact exceed $5,000 ... Instead, he rested exclusively on his complaint, and this was plainly inadequate."

Pouring salt in the summary judgment wound, the appellate panel observed that Modrowski might have prevailed with a slightly different strategy, writing that he "might have conclusively established most of the material facts alleged in his complaint simply by highlighting the defendants failure to file a timely answer."

During summary judgment, the non-movant must offer evidence that would reasonably permit a factfinder to rule in his favor. If he doesn't, then a court must enter summary judgment against him. If you want to keep your client out of that sad category of automatic losers, you need to respond to summary judgment motions -- even the crappy ones -- with evidence to support your case.

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