United States Court of Appeals For the Seventh Circuit
Civil Procedure — summary judgment — notice
A district court cannot decide a motion for summary judgment on a basis not raised and briefed by the parties.
“If judges could decide suits without warning on the basis of considerations the litigants were not contesting, litigation would be even less manageable than it is already. Lawyers would need to submit evidence and legal arguments on issues that appeared to be irrelevant, on the off chance that the judge would second-guess the parties’ litigation strategies. That would produce delay, bloat, and expense. As a norm, waivers are forever. If a waived or forfeited issue is to come back to life, the revival must be preceded by notice. Litigants then safely can limit their submissions to the subjects genuinely in dispute.”
Vacated and Remanded.
Appeals from the United States District Court for the Northern District of Illinois, Hart, J., Easterbrook, J.