The plaintiff in Heary Bros. Lightning Protection Co. v. Lightning Protection Corp., 2008 U.S. App. LEXIS 377 (9th Cir. Jan. 4, 2008), opposed the defendants’ motion for summary judgment on its Sherman Act claims but did not oppose summary judgment on three other counts. The District Court imposed sanctions under the inherent power of the court, finding “that the plaintiffs had engaged in bad faith by failing to dismiss Courts II, III, and IV prior to the filing of [defendant’s] motion for summary judgment.” The Ninth Circuit reversed, holding that “[t]he plaintiff’s decision to not oppose summary judgment [as to Counts II, III and IV] appears to be a reasonable trial strategy designed to narrow the issues for trial” and that the trial court’s “finding of bad faith was clearly erroneous, and its imposition of sanctions on that basis was an abuse of discretion.”

This is a fact-driven determination. One can envision circumstances in which the failure to oppose summary judgment might give rise to an inference that litigation on the unopposed issues was obviously pointless at some point prior to the summary judgment motion practice stage. It would therefore be prudent for parties who chose not to pursue claims either to offer to withdraw them (through amendment or otherwise) if and to the extent that they continue to be litigated after that decision is made or, alternatively, clearly state in papers filed with the court the rationale for not opposing dispositive motions seeking their dismissal.