Filed March 29, 2000
| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
SECURITIESAND EXCHANGE COMMISSION, No. 98-56980 Plaintiff-Appellee, D.C. No. v. CV-97-06546-DDP ROB NITE, OPINION Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted February 24, 20001
Filed March 29, 2000
Before: Robert Boochever, Edward Leavy, and
A. Wallace Tashima, Circuit Judges.
Per Curiam Opinion
that the defendant is aware of the requirements for opposing
the plaintiff's motion for summary judgment.
While appellant Rob Nite was in prison for unrelated fraud
convictions, the SEC sued him for securities fraud. Nite
answered the complaint in pro se, denying the allegations.
The SEC's summary judgment motion was served on Nite in
prison, but he failed to file a response. The district court
granted summary judgment for the SEC. Nite appealed.
[1] Nite had insufficient notice of the requirements for
opposing the SEC's summary judgment motion. [2] The dis-
trict court should not have proceeded without ensuring that
Nite had been advised of his obligation to respond. Pro se
prisoners are entitled to fair notice of the requirements of the
summary judgment rule.
_________________________________________________________________
COUNSEL
Rob Nite, Taft, California, in Pro per, for the defendant-
appellant.
Melinda Hardy, Assistant General Counsel, Securities and
Exchange Commission, Washington, D.C., for the plaintiff-
appellee.
_________________________________________________________________
OPINION
PER CURIAM:
Rob Nite, a federal prisoner, appeals pro se the district
court's summary judgment for the Securities and Exchange
Commission ("SEC") in its securities fraud action, alleging
that Nite violated anti-fraud provisions of federal securities
laws. We have jurisdiction under 28 U.S.C. S 1291. We
review de novo, see Bagdadi v. Nazar, 84 F.3d 1194, 1197
(9th Cir. 1996), and we vacate and remand.
Nite allegedly succeeded in getting sixteen individuals to
invest a total of $3,678,500 on his promises of very high rates
of returns. The investors lost all the money they invested with
Nite. When the SEC brought this securities fraud action
against Nite, he was incarcerated on other unrelated fraud
convictions. Nite answered the SEC's complaint, denying all
the charges. Nite also brought counterclaims alleging libel
and slander, malicious prosecution, and fraud. The district
court dismissed these counterclaims and they are not part of
this appeal.
The SEC filed its motion for summary judgment and Nite
did not file an opposition. The SEC then filed a reply, noting
that Nite had not responded to its summary judgment motion.
The SEC's summary judgment motion and reply were served
on Nite in prison. The district court then granted summary
judgment for the SEC, enjoining Nite from further violations
of certain securities laws and ordering disgorgement and pre-
judgment interest totaling $4,558,815.85 and civil penalties of
$100,000.
[1] Upon our review of the record, we conclude that Nite
had insufficient notice of the requirements for opposing the
SEC's summary judgment motion. See Rand v. Rowland, 154
F.3d 952, 960-61 (9th Cir. 1998) (en banc), cert. denied, 119
S. Ct. 2392 (1999); Klingele v. Eikenberry, 849 F.2d 409,
411-12 (9th Cir. 1988); see also Fed. R. Civ. P. 56(e) ("an
adverse party may not rest upon the mere allegations or deni-
als of the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine
issue for trial").
[2] The district court should not have proceeded to sum-
mary judgment without ensuring that Nite had been advised
of his obligation to respond. We have consistently held that
pro se prisoners are entitled to fair notice of the requirements
of the summary judgment rule. See Rand, 154 F.3d at 960-61;
Klingele, 849 F.2d at 411-12. This rule applies to all prison-
ers. Although Rand discusses a prisoner's handicaps in "pros-
ecuting" his case, see Rand, 154 F.3d at 958, Nite, as a pro
se prisoner defendant in this action, was similarly disadvan-
taged in defending against the SEC's summary judgment
motion. Pro se prisoner defendants and plaintiffs are equally
saddled with "the twin infirmities of imprisonment and pro-
ceeding without counsel." Id.
We vacate the district court's summary judgment and
remand so that the district court may provide the required
notice, and Nite may be given the opportunity to file an oppo-
sition to the summary judgment motion. See Rand, 154 F.3d
at 962 & app. "A" (model notice).
VACATED and REMANDED.
_______________________________________________________________
FOOTNOTES
1 The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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