Did FIU seriously think there would be confusion?
I guess so.
But even more noteworthy is the plan the lawyers and district court came up with to either hear oral argument on a summary judgment motion, take in and admit actual trial testimony in a bench trial, or some Frankensteinian hybrid that was creative but not precisely clear up front:
On December 3, 2014, the court heard oral argument -- in the court’s words -- “on cross motions for summary judgment slash bench trial.” FNU’s counsel initially suggested that the court, “in the first instance,” evaluate the parties’ arguments and evidence under the Federal Rule of Civil Procedure 56 standard of review for summary judgment motions, but recognized that some issues “may require a trial standard” of review. FIU’s counsel responded that he had expected that the court would “tak[e] everything that has been submitted . . . at summary judgment, and in our pretrial stipulation and proposed findings,” “treat that as the record,” and treat the parties’ arguments as “essentially a summary judgment argument but also a closing argument type of presentation in a bench trial.” He continued, “as the finder of fact on those issues that FIU and FNU may disagree on factually,” the district court would “become a fact finder.”Say that again?
Leading to this from the 11th:
At the outset, it is critical that we decide what we are reviewing today -- a summary judgment order or a final judgment entered after a bench trial.Seems reasonable!