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No. 09-1188
NATASHA SINCLAIR,
Plaintiff Appellant,
v.
MOBILE 360, INCORPORATED;
GERALD ELDRIDGE,
AUTO
ADVANTAGE;
KEVIN
GEAGAN;
KEVIN
GEAGAN;
Defendants Appellees.
No. 09-1189
MICHAEL A. KITCHEN,
Plaintiff Appellant,
v.
MOBILE 360, INCORPORATED;
GERALD ELDRIDGE,
AUTO
ADVANTAGE;
Defendants Appellees.
Appeals from the United States District Court for the Western
District of North Carolina, at Asheville.
Dennis L. Howell,
Magistrate Judge. (1:07-cv-00117-DLH)
Argued:
Decided:
March 3, 2011
ARGUED:
Philip J. Roth, Jr., MILLER MARSHALL ROTH, PC,
Asheville, North Carolina, for Appellants.
Kevin Patrick Kopp,
Jacqueline Denise Grant, ROBERTS & STEVENS, PA, Asheville, North
Carolina, for Appellees.
ON BRIEF: Joel Shelton, Arden, North
Carolina, for Appellants.
Sinclair
and
Michael
Kitchen
(collectively,
the
In response, the
filed
discovery
counterclaim
proceedings,
two
against
separate
the
Defendants.
summary
judgment
After
motions
were pursued, the first by Auto Advantage alone and the second
by all of the Defendants.
As
explained
to
herein,
the
magistrate
judge
erred
in
failing
I.
In her amended complaint of June 4, 2008, Sinclair alleged
that
Defendants
Mobile
360
and
Auto
Advantage
served
as
and/or
owner
of
Mobile
360.
J.A.
98-99. 3
The
had
performed
work
for
them,
alleged
that,
if
she
and
completely
controlled
by,
Michael
Kitchen,
J.A. 131.
an
Thus, the
reply,
Kitchen
denied
being
an
independent
contractor,
J.A. 111.
Kitchen also
Kitchen
filed
separate
counterclaim
against
the
Geagan to work for both Auto Advantage and Mobile 360, that he
had been trained at Auto Advantage, and that his paychecks were
written by Auto Advantage. 4
On
May
12,
2008,
after
discovery
was
conducted,
Auto
for
summary
judgment
(the
First
Motion),
contending
Mobile
360,
no
employment
relationships
had
been
shown
been
Reply).
performed
for
Auto
Advantage
(Auto
Advantages
filing
the
First
Motion,
Auto
Advantage
withdrew
such
the
second
Rule
56
motion
for
summary
judgment
(the
in
administration
conduct
of
utterly
justice,
inconsistent
J.A.
351,
and
with
the
claiming
orderly
that
the
On
December
5,
2008,
the
Appellants
lawyer
in
the
working
magistrate
on
judge
their
behalf.
conducted
On
hearing
December
on
16,
Wimers
2008,
motion
the
to
withdraw, questioned him about the Renewed Motion and the Rule
41(b)
Motion
(which
were
pending),
and
observed
that
the
504.
Indeed,
Wimer
also
the
magistrate
judge
advised
Id.
the
court
that
the
granted
Wimers
motion
to
J.A. 519.
that
the
evidence
show[ed]
very
clear
Employee-
did
contained
in
not
the
reference
Counseled
affidavits
Response,
and
made
The Pro Se
and
exhibits
several
new
In
the
against
the
magistrate
judge
Appellants.
of
None
being
of
part
these
of
conspiracy
accusations
were
facts
that
were
genuinely
in
dispute.
The
Defendants
also
with
the
Renewed
Motion,
which,
according
to
the
judge
submitted
struck
the
various
exhibits
with
the
Pro
Se
Responses, ruling that they had not been properly filed by the
pro se Appellants and could not be considered because they were
not supported by explanatory affidavits or declarations.
Opinion 9-10.
See
Id. at
Id. at 10-11.
such
facts
evidence.
corroborated
On
those
by
facts,
the
the
Defendants
judge
uncontroverted
ruled
fatal
to
the
Appellants state and federal wage claims that Mobile 360 and
Auto Advantage were entirely independent of each other, id. at
17, and that Kitchen was merely an independent contractor of
Mobile 360 who had hired and supervised Sinclair, id. at 18-19.
Additionally, the judge ruled that the Appellants state law
breach
of
Standards
contract
Act.
claims
Id.
at
were
20.
preempted
The
Opinion
by
the
Fair
therefore
Labor
awarded
Id. at 21. 10
10
11
The
Appellants
judgment.
We
have
have
timely
appealed
consolidated
their
from
the
adverse
appeals
and
possess
of
summary
II.
We
review
judgment.
de
novo
district
courts
award
III.
A.
As a threshold matter, we recognize that Federal Rule of
Civil
Procedure
56
has
twice
been
amended
effective
on
otherwise,
retroactively
unless
we
must
determine
the
2010
apply
that
the
doing
so
amendments
would
be
amendments
engendered
considerable
fully
outcome
explained
of
this
committees
note
below)
appeal.
changes
See
(clarifying
Fed.
that
12
that
R.
the
could
Civ.
2010
P.
affect
56
the
advisory
amendments
were
motions
consistent
those
leaving
with
[t]he
unchanged).
to
already
standard
In
and
for
these
make
used
granting
in
the
more
courts,
while
many
summary
circumstances,
procedures
it
judgment
would
work
.
an
appropriately
rely
on
the
2009
version
of
Rule
56
in
written
in
2009,
Rule
56
instructed
that
summary
Fed. R.
In contrast, subdivision
(e)(2)
in
of
Rule
56
provided
that,
opposing
properly
11
The
13
Indeed, a majority
to
to
the
materials
motion
submitted
(as
Rule
with
and
56(e)(2)
may
relied
on
in
contemplate). 12
version
consider
only
of
the
Rule
56
cited
now
specifies
materials,
that
though
it
court
may
need
consider
12
14
committees
note
(explaining
that
the
2010
versions
stating
that
the
court
may
decide
motion
for
when
because
it
it
awarded
did
not
summary
judgment
consider
their
to
the
Counseled
Defendants,
Response.
the
Counseled
Response
was
on
file
in
this
case
when
15
Coleman
Inc.,
&
Associates,
recognized
that,
in
assessing
Id.
Id.
Id. at 54-
16
55.
awarded
such
Id. at 55.
judgment
to
the
simply
Id.
to
consider
Mrs.
Campbells
interrogatory
answers
See Campbell,
First, in
ruling on
obligated
determine
exists,
omitted);
Second,
a
court
should
not
grant
summary
judgment unless the entire record shows a right
to judgment with such clarity as to leave no room
for controversy and establishes affirmatively
that the adverse party cannot prevail under any
circumstances, id. (quoting Phx. Sav. & Loan,
Inc., v. Aetna Cas. & Sur. Co., 381 F.2d 245, 249
(4th Cir. 1967)); and
pleadings
because
she
17
had
filed
both
answers
and
As
[a]lthough
result,
Mrs.
the
Campbell
Campbell
did
not
opinion
file
Id. at
concluded
these
that,
[interrogatory
court
should
have
considered
them
when
determining
Id.
Of additional
judge.
Their
appellate
position
concerning
the
Campbell
precedent,
we
are
always
obliged
to
construe
See
Put
18
Erickson v. Pardus,
invocation
of
general
legal
principles
need
not
detour the district court from resolving that which the litigant
himself has shown to be his real concern.
Beaudett v. City of
Hampton,
1985).
775
Appellants
F.2d
claims
1274,
were
1278
made
(4th
clear
Cir.
not
only
by
Here,
the
the
amended
proceeding pro se, and they are entitled to the less stringent
standards applicable to such litigants.
Indeed,
19
may
address
the
contentions
pursued
in
the
Renewed
the
Counseled
Response
directly
addressed
the
though
Response
and
the
First
Auto
Motion
Advantages
on
file
in
withdrawn,
Reply
were
never
the
Counseled
withdrawn
or
this
was
case
when
summary
judgment
was
20
IV.
Pursuant to the foregoing, we vacate the judgment of the
district court and remand for such other and further proceedings
as may be appropriate.
VACATED AND REMANDED
21
I.
The
previous
version
of
Rule
56
stated
that
summary
Coleman & Assocs., Inc., 21 F.3d 52, 55-56 (4th Cir. 1994).
However, the Federal Rules of Civil Procedure were amended
in 2010, and these amendments eliminated the on file language
from Rule 56.
states
that
district
courts
need
only
the
cited
Fed. R. Civ. P.
support
their
assertions
22
with
citations
to
the
record.
and
supporting
materials
--
including
the
facts
Advisory
Committee
Notes
explain,
these
changes
56
advisory
committees
rejected
our
minority
approach
followed
by
position
the
note.
Thus,
in
majority
the
Campbell
of
the
Fed. R. Civ.
2010
in
amendments
favor
circuits
of
the
that
had
district
court
here
certainly
satisfied
consider
majority
nor
central
issue
should
have
the
uncited
the
appellants
dispute
this
--
in
reviewed
Counseled
case
the
whether
Counseled
23
It had no duty
Response.
this.
the
Response
the
Neither
the
Accordingly,
the
magistrate
--
is
judge
clearly
II.
Rule 86(a) explains that amendments to the Federal Rules of
Civil Procedure govern:
(1) proceedings in
effective date; and
(2) proceedings
pending unless:
an
after
action
that
commenced
date
in
an
after
their
action
then
2010
appeal,
amendments
on
December
took
1,
effect
2010.
during
the
pendency
Accordingly,
as
the
of
this
majority
infeasible
86(a)(2)(B).
or
work
an
injustice.
Fed.
R.
Civ.
P.
applies
--
whether
applying
the
2010
amendments
Fed. R. Civ. P.
case.
If
the
test
for
injustice
is
whether
the
But
is
generally
treatment
as
that
Precision
Instrument
the
last
granted
Mfg.
one
by
Co.
to
this
v.
anything
but
deserving.
receive
They
such
equitable
Automotive
generous
exception.
Maintenance
the
lower
court
Appellants
then
terminated
25
their
counsel
at
the
eleventh
hour,
mere
week
before
their
summary
judgment
in
motion
summary
for
assertions
poison
the
that
their
responses
judgment,
the
to
including
Defendants
Appellants,
the
had
Majority
motion
the
to
utterly
threatened
Opinion
dismiss
at
to
9,
and
unfounded
stalk
and
that
the
and
fine
colleagues
are
right
to
note
that
[n]one
of
these
Id.
exhibited
commendable
patience,
even
though,
as
the
Majority Opinion at 9
In fact, this may be the first time that this court has
suggested
behavior
that
and
sanctions
then
given
may
that
be
same
appropriate
party
the
for
benefit
partys
of
an
equitable exception.
Additionally, the notions of injustice and equity embodied
in Rule 86 seem to presume some reliance interest.
no professed reliance interest here.
But there is
Surely they
were aware that the 2010 amendments would be going into effect
just a few short months from oral argument.
26
Indeed, in its
shall
govern
. . .
insofar
as
just
and
practicable,
all
And yet
no
importance
to
the
question
of
whether
the
2010
It is
Moreover,
They voluntarily
considered
on
remand.
And
this
Counseled
Response
judgment
motion.
Therefore,
27
while
appellants
technically
may
have
been
assistance of counsel.
the
Counseled
pro
se
they
were
not
without
the
Response
to
their
Pro
Se
Responses,
task
But they
failed to do so, and they now seek to blame the court for their
oversight.
III.
I am mystified as to why the equitable exception to the
general rule should be invoked here.
for
when
extraordinary
circumstances
prevent injustice.
many
reasons
not
to
--
it
is
necessary
to
the
presumptive
counsel
of
the
the exception, and I regret that appellees and the trial court
must suffer it.
court.
28