An earlier line of cases holds that a district court may never enter summary judgment sua sponte. See, e.g., John Deere Co. v. American Nat'l Bank, 809 F.2d 1190, 1192 (5th Cir. 1987); Clark v. Tarrant County, Texas, 798 F.2d 736, 741 (5th Cir. 1986); Capital Films Corp. v. Charles Fries Productions, Inc., 628 F.2d 387 (5th Cir. 1980). The Supreme Court's recent decision in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) strongly supports the former proposition.
Any reasonable doubt about whether the defendants were on notice that summary judgment might be granted for plaintiff prior to August 2, 1991, must be resolved in favor of the defendants. See, e.g., NL Industries, Inc. v. GHR Energy Corp., 940 F.2d 957, 965 (5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 873, 116 L.Ed.2d 778 (1992). In Capital Films Corp. v. Charles Fries Productions, Inc., 628 F.2d 387, 390-91 (5th Cir. 1980), this court recognized that when a district court's actions induce a party to reasonably believe he has additional time to respond to a motion for summary judgment, the entry of summary judgment prior to the expiration of that additional time is an abuse of discretion. In Capital Films, the defendant filed a motion for summary judgment more than a year before the district court granted the motion.
Some of our cases have found an abuse of discretion and reversed the district court others have not.See Capital Films Corp. v. Charles Fries Productions, Inc., 628 F.2d 387, 391-92 (5th Cir. 1980); Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir. 1976); and Enochs v. Sisson, 301 F.2d 125, 126 (5th Cir. 1962).See Landry v. Air Line Pilots Assn. Int'l, 901 F.2d 404, 434-36 (5th Cir. 1990); Daniels v. Morris, 746 F.2d 271, 274-76 (5th Cir. 1984); and Hamman v. Southwestern Gas Pipeline, Inc., 721 F.2d 140, 143-44 (5th Cir. 1983).
We note that in the past we have generally held that a written summary judgment motion by the prevailing party is a prerequisite to a summary judgment. Capital Films Corp. v. Charles Fries Productions, Inc., 628 F.2d 387 (5th Cir. 1980); Alder v. Hailey (In re Hailey), 621 F.2d 169 (5th Cir. 1980); Hanson v. Polk County Land, Inc., 608 F.2d 129, 131 (5th Cir. 1979). But see Fed.R.Civ.P. 12(b) (providing for conversion of Rule 12(b)(6) motion to dismiss for failure to state a claim for which relief can be granted into a Rule 56 summary judgment motion if the district court considers matters outside the pleadings); Davis v. Howard, 561 F.2d 565, 571-72 (5th Cir. 1977) (no formal motion for summary judgment required in the conversion situation created by Rule 12(b)); see Estate of Smith v. Tarrant County Hospital District, 691 F.2d 207, 208 (5th Cir. 1982) (court must carefully follow Rule 56 notice and hearing requirements when converting a Rule 12(b)(6) motion).
We recognize that the sua sponte grant of summary judgment is a dangerous practice and has resulted in reversal. See Capital Films Corp. v. Charles Fries Productions, 628 F.2d 387 (5th Cir. 1980). These dangers, however, were not present here.
Hickey v. Arkla Indus., Inc., 615 F.2d 239, 240 (5th Cir. 1980); Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979). These procedural safeguards are equally applicable when a judge sua sponte orders summary judgment, Sharlitt v. Gorinstein, 535 F.2d 282, 283 (5th Cir. 1976), or where a summary judgment motion has been filed but no notice of hearing has been given. Capital Films Corps. v. Charles Fries Prod., 628 F.2d 387, 392 (5th Cir. 1980). On June 27, 1980, the plaintiffs in this case instituted an action under 42 U.S.C. § 1983 against various political subdivisions and public officials in the State of Texas. The defendants responded with motions to dismiss for failure to state a claim.
Other courts have held that "[s]o long as the Court is careful to assure that the party against whom the judgment will be entered has sufficient advance notice and an adequate opportunity to demonstrate why summary judgment should not be granted, it is not inappropriate for the Court to act on its own." Capital Films Corp. v. Charles Fries Prod., Inc., 628 F.2d 387, 390 (5th Cir. 1980), citing Kistner v. Califano, 579 F.2d 1004 (6th Cir. 1978); FLLI Moretti Cereali S.P.A. v. Continental Grain Co., 563 F.2d 563 (2d Cir. 1977); and 10 Wright Miller, Federal Practice and Procedure § 2719, at 454 (1973). See, e.g., Choudhry v. Jenkins, 559 F.2d 1085 (7th Cir.), cert. denied, 434 U.S. 997, 1088-1089 (1977); Capital Films Corp. v. Charles Fries Prod., Inc., 628 F.2d 387, 390-391 (5th Cir. 1980).
"[L]ikelihood of confusion occurs when a later user uses a trade-name in a manner which is likely to cause confusion among ordinarily prudent purchasers or prospective purchasers as to the source of the product." Cap. Films Corp. v. Charles Fries Prods., Inc. , 628 F.2d 387, 393 (5th Cir. 1980). In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
” However, “[t]he discretion afforded by Rule 54(c) ... assumes that a plaintiff's entitlement to relief not specifically pled has been tested adversarially, tried by consent, or at least developed with meaningful notice to the defendant.” Peterson v. Bell Helicopter Textron, Inc., 806 F.3d 335, 340 (5th Cir.2015) (citing 10 Charles Alan Wright, Arthur Miller, & Mary Kay Kane, Federal Practice & Procedure § 2662 (4th ed.2014), at 165), reh'g denied, 807 F.3d 650 (5th Cir.2015); see also Capital Films Corp. v. Charles Fries Prods., Inc., 628 F.2d 387, 390 (5th Cir.1980) (court must assure that party against whom judgment is entered has sufficient advance notice and an adequate opportunity to demonstrate why additional relief should not be granted); 10 Wright, Miller, & Kane § 2664 (4th ed.2014), at 180–83 (“The only exception to [Rule 54(c)] is if plaintiff's failure to demand the appropriate relief has prejudiced the defendant.”). Based on the record as a whole, we cannot say that the district court's understanding concerning the scope of the parties' agreements was “tested adversarially, tried by consent, or at least developed with meaningful notice to the defendant.”
While the filing of a motion for summary judgment normally gives sufficient notice, the magistrate judge's previous order led Thunderhorse to reasonably believe that the case was going to trial without consideration of the summary judgment motions. See Capital Films Corp. v. Charles Fries Prods., Inc., 628 F.2d 387, 391-92 (5th Cir. 1980). Given the circumstances, Thunderhorse did not receive sufficient notice, and the magistrate judge's grant of summary judgment was an abuse of discretion.