by Andrew Flake
In a trademark case decided just this month, FCOA, LLC v. Foremost Title & Escrow Services LLC, the Eleventh Circuit considered when a case should be decided without a trial, looking at the special case in which both parties, believing they are entitled to judgment, file motions for summary judgment.
Faced with such cross-motions, the trial court has three decision paths:
 granting summary judgment for the plaintiff under the defendant’s best case,  granting summary judgment for the defendant under the plaintiff’s best case, or  denying both motions for summary judgment and proceeding to trial. Before granting summary judgment for a party, the court must consider the evidence in the light most favorable to the non-movant and, unless “there are no genuine issues of material fact,” i.e., all material facts have “been incontrovertibly proved,” and the trial judge is the finder of fact, the court must also draw all inferences in the non-movant’s favor.
Leading to the appeal in FCOA, the district court had apparently drawn an inference against the party that lost summary judgment, which is not normally what is supposed to occur. Rather, the party opposing summary judgment lets the benefit of all inferences, at least any that a reasonable jury might draw.
That didn’t occur, and the interesting wrinkle is the point the Eleventh Circuit made about when district courts can “occasionally” flip the normal script:
We have recognized that district courts deciding summary judgment motions may occasionally draw inferences against the on-movant when “there are no genuine issues of material fact,” “no issues of witness credibility,” and the district court must decide the motion based on a cold record consisting of “affidavits, depositions, and stipulations.” Useden v. Acker, 947 F.2d 1563, 1572 (11th
Cir. 1991) (quoting Nunez v. Superior Oil Co., 572 F.2d 1119, 1123–24 (5th Cir. 1978)).
The case referred to here is an older Fifth Circuit, Nunez v. Superior Oil, identifying when the usual rule — that any inferences on summary judgment are drawn against the movant — might not apply.
When can a Nunez inference be used. We don’t really get clear answer, though the practical reality seems to be: sparingly, if at all. The Eleventh Circuit flags its overuse as a risk:
A district court may not ignore the traditional summary judgment standard merely by invoking the specter of Nunez.
Nunez itself acknowledged that summary judgment can be “a ‘lethal weapon’ capable of ‘overkill’” and that situations where
the Nunez standard is appropriate “may be rare.” 572 F.2d at 1223–24 (quoting Brunswick Corp. v. Vineberg, 370 F.2d 605, 612 (5th
Cir. 1967)). Indeed, the Nunez standard can easily become a trap for unwary district courts and litigants…the Nunez standard should be reserved for those rare cases where it is justified.
The Court goes on to point out that, on appeal, it will not give attention or weight to the trial court’s inferences: the de novo standard of review is “unaffected by any inferential conclusions reached below.”
For the trial court, then, the record really must be viewed carefully. If the district court needs to employ an inference against the non-moving party, the court must explicitly decide whether all material facts have been “incontrovertibly proved.” That would necessarily mean also verifying that the court has considered the full set of material facts considered — including what facts are indeed “material.” Often, the parties will disagree about the universe of facts relevant to summary judgment.
Interestingly, the FCOA case was scheduled for a bench trial September 3, and summary judgment was decided August 1, scarcely a month before. I would add that a ruling that close to trial is not generally helpful for the trial lawyer. Considering this, the Court disapproved from an efficiency standpoint, calling on counsel in future cases to be more mindful of the problem:
Second, cross-motions for summary judgment in non-jury cases are a very inefficient method by which to decide a case.
When parties move for summary judgment, they tell the court that they are ready for a determination on the merits and that no material fact issues remain for a factfinder to decide.
If both parties move for summary judgment after conducting extensive discovery, then the parties effectively agree that no fact issues exist. But then the court grants summary judgment in these situations, the loser will invariably take an appeal and argue that there was a fact dispute or credibility issue that prevented the court from deciding the case, despite arguing the opposite below. The winner will argue that no fact issues remain. If a fact issue does remain, the case must be reversed and remanded to hold a bench trial, which should have occurred in the first place. And, of course, the loser of the bench trial will then appeal. In this case, for efficiency’s sake, the parties should have eschewed moving for summary judgment, informed the court that discovery was complete and that the case was ready for trial, and then held a bench trial.
For counsel, then, a conversation after discovery with opposing counsel about motion practice, including whether the parties want to simply proceed to a bench trial on an agreed record, is a conversation worth having.[The cases discussed are FCOA, LLC v. Foremost Title & Escrow Services LLC, Case 19-13390 (11th Cir., filed Jan. 12, 2023) and Nunez v. Superior Oil Co., 572 F.2d 1119, 1123–24 (5th Cir. 1978).]