Modrowski v. Pigatto

712 F.3d 1166, 2013 U.S. App. LEXIS 6999



Fed. R. Civ. P. 56 imposes an initial burden of production on the party moving for summary judgment to inform the district court why a trial is not necessary. Where the nonmovant bears the ultimate burden of persuasion on a particular issue. The movant's initial burden may be discharged by showing—that is, point out to the district court—that there is an absence of evidence to support the nonmoving party's case. Upon such a showing, the nonmovant must then make a showing sufficient to establish the existence of an element essential to that party's case. The nonmovant need not depose her own witnesses or produce evidence in a form that would be admissible at trial, but she must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in her favor.


Modrowski sued the defendants in federal court, challenging the defendants' refusal to give back control over Modrowski's personal email account. The district court issued a temporary restraining order, but the defendants had already stripped Modrowski's email of several years worth of correspondences. Modrowski alleged that the defendants violated the Stored Wire and Electronic Communications Act, the Federal Wire Tapping Act, and the Computer Fraud and Abuse Act. The defendants moved to dismiss all the claims. The district court dismissed two of the claims on the grounds that Modrowski voluntarily linked his personal account. The other claim was dismissed because Modrowski failed to allege an injury of at least $5,000. When Modrowski amended his complaint he still failed to meet his burden of stating an injury. On appeal Modrowski insisted that his obligation to produce evidence was never triggered because the defendants failed to meet their initial burden of production. 


Was the plaintiff's obligation to produce evidence triggered?




The plaintiff's obligation to produce evidence was triggered. Once defendants pointed out the gap that they believed existed in plaintiff's case (his inability to produce evidence sufficient to meet his burden of proving that his injury exceeded $5,000, as required by 18 U.S.C.S. § 1030) he was obliged to point to evidence that, if believed by the trier of fact, would be sufficient to show that his loss did in fact exceed $5,000. The Court affirmed the district court judgment. 

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