Generally, federal circuit courts apply de novo review when analyzing a district court’s summary judgment decision. But for federal bench trials where the parties filed cross-motions for summary judgment, district courts apply a relaxed summary judgment standard that leads to the clear error standard upon appellate review, Allison L. Ebeck of Eckert Seamans Cherin & Mellott LLC says. Looking at how and when the relaxed standard applies, she concludes attorneys must prepare their pre-trial strategy with these nuances in mind.
The standard for summary judgment is, seemingly, not a controversial one, as it is generally uniform among the federal circuits.
As is well-known by any trial lawyer or law graduate studying for the bar exam, summary judgment is proper where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Summary judgment may be granted where there is no basis for a reasonable jury to return a verdict for the party opposing the motion. See Milne v. USA Cycling Inc., 575 F.3d 1120, 1128 (10th Cir. 2009) (citing cases).
On appeal, a district court’s disposition of a summary judgment motion is typically reviewed de novo. Stephanie C. v. Blue Cross Blue Shield of Massachusetts HMO Blue Inc., 852 F.3d 105, 110 (1st Cir. 2017).
Generally, the summary judgment standard does not differ between cases set for jury trial and those set for a bench trial. See e.g., Citizen Awareness Project, Inv. v. Internal Revenue Serv., No. 13-CV-2127-WJM-NYW, 2015 BL 132404, at *14, n. 1 (D. Colo. May 6, 2015). However, where parties file cross-motions for summary judgment when a bench trial is set, some district courts choose to employ a lesser, more relaxed standard, whereby the judge is permitted to make factual and credibility determinations from the record to resolve the case on its merits (knowing that he or she will be sitting as fact-finder should a trial be held).
Despite this practice among some federal circuits, others continue to apply the same summary judgment standard as enumerated by Federal Rule 56, regardless of whether a case is set for a jury or bench trial. See e.g., Med. Inst. of Minnesota v. Nat’l Ass’n of Trade & Tech. Sch., 817 F.2d 1310, 1315 (8th Cir. 1987) (“The fact that the end result may be the same—judgment for one of the parties—is not indicative of the different roles performed by the district court in making each decision.”); United States v. DeFelice, No. CIV-14-415-RAW, 2015 BL 370604, at *3 (E.D. Okla. Nov. 10, 2015) (“There is a split of authority, however, regarding a district court making factual findings (and credibility determinations) at the summary judgment stage.”).
When the relaxed summary judgment standard is applied, the appellate review is also altered.
Typically, a district court’s summary judgment determination is reviewed de novo, as the district court’s determination resolves legal, versus factual questions.
Where a relaxed summary judgment standard is applied, however, a district court is making both legal and factual determinations—meaning that the more deferential standard of “clear error” is used to review the factual determinations on appeals. Morris v. City of Colorado Springs, 666 F.3d 654, 660 (10th Cir. 2012) (stating that a district court’s grant of summary judgment is typically reviewed de novo on appeal); Florida Int’l Univ. Bd. of Trustees v. Florida Nat’l Univ., Inc., 830 F.3d 1242, 1252–53 (11th Cir. 2016) (reviewing the district judge’s summary judgment determinations regarding questions of fact for clear error).
The following article addresses this circuit split in more detail, evaluates the elements employed by certain district courts when applying the relaxed summary judgment standard, and notes the relaxed standard’s effect upon litigation practice.
Circuit Split on Standard for Summary Judgment in Bench Trials
A. Circuits Applying Relaxed Standard
A handful of circuits apply a relaxed summary judgment standard for bench trials, allowing the judge to fact-find and make related inferences in rendering its summary judgment determination. These circuits include the First, Fifth, and Eleventh Circuits. See e.g., Nunez v. Superior Oil Co., 572 F.2d 1119, 1123–24 (5th Cir. 1978) (“If decision is to be reached by the court, and there are no issues of witness credibility, the court may conclude on the basis of the affidavits, depositions, and stipulations before it, that there are no genuine issues of material fact, even though decision may depend on inferences to be drawn from what has been incontrovertibly proved.”); Carnival Cruise Line v. Stankovic, No. 16-20353, 2017 WL 1378568, at *1 (S.D. Fla. 2017) (stating that in a non-jury setting where there are no issues of witness credibility: “the Court may make factual determinations and draw inferences at the summary judgment stage,” because “a trial on the merits would reveal no additional data nor aid the determination.”); U.S. Fed. & Guar. Co. v. Planters Bank & Tr. Co., 77 F.3d 863, 866 (5th Cir. 1996) (“[Prior case law has] established that even at the summary judgment stage a judge in a bench trial has the limited discretion to decide that the same evidence, presented to him or her as trier of fact in a plenary trial, could not possibly lead to a different result.”); Regions Bank v. Gator Equip. Rentals, LLC, No. CV 15-5084, 2016 BL 396401, at *4 (E.D. La. Aug. 22, 2016) (“In nonjury cases, such as this one, where the judge is the ultimate finder of fact, the Fifth Circuit suggests that a “more lenient standard for summary judgment” is appropriate.”).
Note that this relaxed standard is only employed where there are no determination of witness credibility to be made with regard to the facts on the record. See Nunez, 572 F.2d at 1123–24.
Courts apply this relaxed standard for a number of reasons, but primarily for judicial economy. One Texas District Court opined that “[i]t makes little sense to forbid the judge from drawing inferences from the evidence submitted on summary judgment when that same judge will act as the trier of fact, unless those inference involve issues of witness credibility or disputed material facts.” Massachusetts Mut. Ins. Co. v. Mitchell, 942 F. Supp. 2d 652, 656 (S.D. Tex. 2013). The Fifth Circuit similarly reasoned that “the judge, as trier of fact, is in a position to and ought to draw his inferences without resort to the expense of trial.” Nunez, 572 F.2d at 1124. Other courts have held likewise. See e.g., Useden v. Acker, 947 F.2d 1563, 1572 (11th Cir. 1991) (“These circumstances may suggest that the judge is in an enhanced position to draw inferences and resolve the action without resorting to the expense of trial.”).
There are several circuits which have not addressed the issue, while others are vehemently opposed to altering the summary judgment standard.
“Those who oppose employing the relaxed standard for bench trials believe that each stage of trial serves its own purpose, and accordingly, each stage, with its corresponding legal and factual determinations and deference, should remain separate. For example, the 8th Circuit opposed applying a relaxed standard. The court explained:
“A judge does not sit as a trier of fact when deciding a motion for summary judgment even if the case is scheduled to be heard without a jury. The fact that the end result may be the same—judgment for one of the parties—is not indicative of the different roles performed by the district court in making each decision and by an appellate court in reviewing those decisions.”
Med. Inst. of Minnesota, 817 F.2d at 1315; see alsoCitizen Awareness Project, 2015 BL 132404, at *14, n. 1 (“[S]ome circuits allow their district courts to make factual findings at the summary judgment phase if the court can confidently say that presentation of live evidence would make no difference. Other circuits hold that the summary judgment standard remains the same regardless… This Court will therefore apply the same summary judgment standard it would apply if the case was set for a jury trial.”).
The circuits which have relaxed the summary judgment standard for bench trials have always done so in circumstances where the summary judgment proceedings can be deemed to have equated to a trial, particularly where the parties consent to a final decision at this pre-trial stage. In these circumstances, the appellate review standard has been reduced from de novo review to the more relaxed, “clear error” standard with regard to the district court’s factual findings. See e.g., Pacific Indemnity v. Deming, 828 F.3d 19, 22–23 (1st Cir. 2016) (“In [certain] cases, the district court may engage in a certain amount of fact-finding, including the drawing of inferences, and we review these factual inferences for clear error.”).
B. When Relaxed Standard Can Apply
Typically, certain circumstances must be present for a federal court to apply a relaxed summary judgment standard. Some courts strictly limit the application of the reduced standard, stating that only in somewhat unusual circumstances can such a reduced standard properly be employed. See Pacific Indemnity, 828 F.3d at 22–23 (reversing the summary judgment determination of the trial court, and stating that only “in somewhat unusual cases,” where certain factors are present can a district court engage in fact-finding at the summary judgment stage).
What circumstances constitute “unusual circumstances” vary slightly among the circuits, but many factors remain the same.
In circuits which have applied a relaxed standard and have allowed judges to make factual determinations at the summary judgment stage, the decision to do so has itself involved a fact-intensive inquiry. In evaluating whether a district court properly employed such a standard, appellate courts have considered some or all of the following factors:
• Whether the district court held a hearing on the motions for summary judgment in which the facts were fully developed;
• Whether the parties expressly stipulated to an agreed set of facts or whether the record reflects that the parties in effect submitted the case to the court on an agreed statement of facts;
• Whether there were issues of witness credibility;
• Whether a trial on the merits would have revealed additional data;
• Whether the court could decide all issues and resolve all factual disputes on the limited record; and/or
• The parties’ intentions and whether the parties agreed to submit the case to the district court for final resolution.
See e.g., Florida Int’l Univ., 830 F.3d at 1252–53; Nunez, 572 F.2d at 1123-24; Jewelers Mutual Ins. Co. v. N. Barquet, Inc., 410 F.3d 2, 10 (1st Cir. 2005).
Most circuits require that the case be submitted essentially as a “case stated” for the relaxed standard to apply, meaning that neither party would introduce additional factual evidence nor present additional witnesses if a trial were held.
For example, in the Eleventh Circuit case Florida Int’l Univ., while preparing for a bench trial, the parties filed cross-motions for summary judgment. Florida Int’l Univ. Bd. of Trustees, 830 F.3d at 1252–53. The parties explicitly advised the court that the parties’ evidentiary submissions (which were complete, with no new evidence to be introduced at trial) and accompanying briefing would allow the court to make the same decision in disposing of the summary judgment motions as it would at trial. Id. at 1253. The court conducted a hearing which treated the parties’ arguments essentially as a summary judgment and closing argument. Id.
Accordingly, the reviewing appellate court reasoned that because “the district court stated it would hold a hearing where the parties could ‘sum up’ their pleadings instead of scheduling a five-day trial,” and that in doing so “it was conducting a hearing on cross-motions for summary judgment slash a bench trial,” that the case was akin to “a trial on a stipulated record.” Id. The appellate court found that the district court’s summary judgment opinion “rea[d] far more like a judgment by a fact-finder after a bench trial than a summary judgment ruling,” and should be reviewed accordingly—reviewing the district court’s conclusions of law de novo and its factual findings for clear error. Id. at 1253–54.
However, it is important that the parties do more than simply file cross-motions for summary judgment.
In Jewelers Mutual Ins. Co., for example, the First Circuit affirmed the granting of summary judgment in favor of Jewelers Mutual on its breach of contract claim and against Barquet on its third-party claims in a stolen jewelry case. 410 F.3d 2, 10 (1st Cir. 2005). In doing so, the court explained that the filing of cross-summary judgment motions, coupled with a jury waiver, was not necessarily sufficient to find that the parties intended to submit their case as a “case stated” rather than going to trial. Id. at 9.
The court found that although the parties filed cross-summary judgment motions, the parties may nonetheless have intended to treat summary judgment as a separate phase, planning to then proceed to a bench trial. Id. at 10. The court stated that “the intentions of the parties and the district court judge, as evidenced by the record on appeal,” is critical to the inquiry of which standard to apply. Id. at 9.
Finding that the parties did not intend the summary judgment motion to be a case stated, the court reviewed the grant of summary judgment de novo rather than for clear error deferential to the district court’s factual determinations. Id.
Applicability to Practice
The potential for a district court to apply a relaxed summary judgment standard in a bench trial can significantly impact a case.
A district court’s possible application of the relaxed standard may impact counsels’ overall case and trial strategy, such as consideration of whether to bring a motion for summary judgment, the balancing of the risk versus the reward of filing a motion for summary judgment, what evidence makes up the record, the consideration of which parts of the record should be stipulated to, if any, and/or considerations regarding witness credibility and testimony.
For those practicing in federal court, a general awareness of the circumstances in which the relaxed standard can be imposed is vital.
In considering whether to file a motion for summary judgment, particularly where the other party has filed or is anticipated to file such a motion, counsel should evaluate the record and to what extent it is complete. In situations where additional factual evidence may not be essential to a summary judgment determination, or where the need to present witnesses is not definite, parties should consider whether presenting a summary judgment motion could be interpreted as presenting a “case stated.”
In some scenarios, disposition at the summary judgment stage is a desirable outcome for the client as well as for the court. In other scenarios it may be desirable to avoid such an early disposition based on the state of the record, and counsel should take care to avoid such a situation.
Accordingly, in the pre-trial stages of a bench trial, practitioners should be aware of the possibility that the court’s summary judgment ruling could become a final judgment.
Practitioners in federal court should be cognizant of the potential imposition of a relaxed summary judgment standard in bench trial scenarios. When considering filing such a motion, a general awareness of this potential standard can significantly impact pre-trial strategy and outcomes.
Allison Ebeck focuses her practice in the areas of general commercial and corporate litigation.