Commercial Litigation and Arbitration

May a Federal Court Enter Summary Judgment on an Issue That Is Less Than a Full “Claim”? — Caselaw Split as to Meaning of “Claim”

Hamblin v. British Airways PLC, 2010 U.S. Dist. LEXIS 67401 (E.D.N.Y. June 15, 2010):

Some courts have limited the availability of summary judgment motions to foreclosure of specific claims, not remedies. For example, in In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 517 F. Supp. 2d 662, 666 (S.D.N.Y. 2007) ("MTBE"), the defendants moved for "summary judgment" against plaintiff's claim for punitive damages. Judge Scheindlin pointed out that punitive damages is not a claim, but a remedy, and reasoned that the word "claim" in Rule 56 refers to the legal theory upon which the request for relief is based, not the remedy that would flow from success on that theory. She supported this conclusion, in part, by referring to Rule 56(c)(2), which describes the basis for the entry of a "judgment," and from there reasoned that since no "judgment," in the sense of a final or appealable order, could be entered as a result of eliminating the plaintiffs' punitive damage demand, the defendants' motion could not properly be categorized as one for summary judgment. She also relied on Rule 54(b)), which allows, upon proper findings, entry of a final judgment as to disposition of less than all of the "claims" before the Court, and read that in pari materia with Rule 56. Nevertheless, she found that she had the inherent power to consider the defendants' motion by construing it as a motion in limine, and granted it on that basis, rather than under Rule 56.

The posture of this case differs from that of MTBE. As Judge Scheindlin noted, the basis for the defendants' motion there was that the plaintiffs' theory of liability did not permit punitive damages as a matter of law. The issue was thus purely legal, not "whether plaintiffs' claims should fail for lack of evidence." 517 F. Supp. 2d at 666. It therefore made some sense to treat the motion as a motion in limine. In contrast, defendant's motion here is precisely whether plaintiff's claims should fail for lack of evidence, i.e., whether there is sufficient evidence to raise a factual issue for the jury to resolve. That kind of search for factual issues, based on an analysis of the record, does not lend itself comfortably to the motion in limine context, which is generally confined to evidentiary, or perhaps most broadly, as in MTBE, non-record dependent legal issues, like those that could just as easily be raised in the Rule 12 context. See generally BLACK'S LAW DICTIONARY 1109 (9th ed. 2009) (defining motion in limine). Only through application of the tests employed under Rule 56 can I evaluate defendant's motion, and if those tests under Rule 56 are unavailable, I must deny it, because there is no other procedural vehicle for the pretrial determination of an issue like this.

In contrast to the MTBE court, I conclude that the word "claim" in Rule 56 is not limited to the theory of liability that a plaintiff asserts. A theory of liability is useless to a plaintiff without remedies flowing from that claim, and so I see the "claim" as being composed of both the theory of liability and the remedies that that theory supports. See BLACK'S LAW DICTIONARY 81-82 (defining "claim" both as "[t]he aggregate of operative facts giving rise to a right enforceable by a court" and as "[a] demand for money, property, or a legal remedy to which to which one asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks for" (i.e., the ad damnum clause)). Under this analysis, the right and the remedy are each part of the "claim" as defined in Rule 56.

This recognition that a particular element of requested damages, like a theory of liability, is a part of a "claim" as used in Rule 56 is determinative of whether I can consider defendant's motion because Rule 56(a) and (b) expressly allow summary judgment as to part of a claim: "A party against whom relief is sought may move . . . for summary judgment on all or part of a claim." Fed. R. Civ. P. 56(b) (emphasis added). In addition, it would seem unduly restrictive to not allow a motion directed to an element of damages, such as defendant seeks here, since the scope of the Rule is defined by reference to a party "against whom relief is sought," not, for example, a party against whom a theory of liability is asserted.

I do not see that this analysis is undermined by Rule 56(c)(2), which discusses the basis for rendering a "judgment," any more than it is undermined by the name of Rule 56 ("Summary Judgment") itself. I reach this conclusion because Rule 56(d) expressly contemplates that there will be summary judgment motions that, although granted in part, will result in the entry of an order other than a judgment:

(d) Case Not Fully Adjudicated on the Motion.

(1) Establishing Facts. If summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely at issue. The court should so determine by examining the pleadings and evidence before it and by interrogating the attorneys. It should then issue an order specifying what facts--including items of damages or other relief--are not genuinely at issue. The facts so specified must be treated as established in the action.

That is precisely what defendant is asking me to do here.

This analysis is supported by, rather than contrary to, Rule 54(b). The MTBE court seemed to believe that Rule 56 and Rule 54(b) must be co-extensive in scope -- that any order entered under Rule 56 that does not dispose of the case entirely must be amenable to certification under Rule 54(b) because both Rules use the word "judgment" -- but I do not see why that has to be the case. It is well settled that an order under Rule 56(d)(1) that resolves liability in plaintiff's favor but leaves open the remedy does not qualify for Rule 54(b) certification. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976); Steve's Homemade Ice Cream, Inc. v. Stewart, 907 F.2d 364 (2d Cir. 1990). That means that such orders can be entered under Rule 56, even though they are not judgments. Rule 56 thus provides for a broader range of orders than can be certified under Rule 54(b).

Finally, I note, as did the MTBE court, that the Second Circuit has regularly reviewed grants of "partial summary judgment," eliminating elements of damages before trial, when the case has later come up on final judgment. *** In fact, Ehrlich v. American Airlines, Inc., 360 F.3d 366 (2d Cir. 2004), in which the Second Circuit affirmed "partial summary judgment" precluding plaintiffs from pursuing claims for mental injuries resulting from the crash landing of defendant's airplane when it overshot its designated runway, has obvious factual and procedural similarities to the issues before me.

The MTBE court correctly referred to this as "a lack of precision by courts" in defining motions seeking to preclude the jury's consideration of particular elements of damages. 517 F. Supp. 2d at 666 n.17. The Wright & Miller treatise similarly considers the term "partial summary judgment" to be ambiguous or worse, since the order is not a judgment as referred to in other rules or as generally understood and recommends that courts use the phrase "partial summary adjudication." ***That, however, seems to raise the somewhat obscure question of when an "adjudication" does not result in a "judgment." I think "partial summary judgment" is as good a phrase as any, since the important concept is that the tests for issue-finding under Rule 56 are being applied in the determination of the motion.

In any event, so long as it is understood that the established Rule 56 tests for determining whether an issue of fact exists are being applied, it matters little what the resulting order is called. I will therefore proceed to consider whether defendant has established that there is no genuine issue of material fact as to plaintiff's right to recover damages for being laid off from Microsoft, and I will do that under Rule 56.

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