When deciding whether to file a summary judgment motion, attorneys should be careful to consider the possibility that the court may choose to enter summary judgment in favor of the non-moving party.  This is what recently occurred in Dietrich v. Bell Inc., Case No. 1:11-cv-1145 (W.D. Mich. Jan. 25, 2013)(Neff, J.).

Dietrich moved for summary judgment on his claim for commissions under his contract and under the Michigan Sales Representative Commission Act, MCL 600.2961.  Dietrich's primary argument was that he had procured the customers for which Bell was continuing to make sales after terminating Dietrich as its sales representative.  The court agreed that Dietrich had procured the customers that Bell was selling to; however, there was no evidence that Dietrich had procured the specific sales on which Dietrich was claiming commissions.  The court held that the contract unambiguously provided that Dietrich was to be paid commissions on sales he procured, not customers he procured.

The court chose to grant summary judgment in favor of Bell, the non-moving party.  The court noted that, by filing a motion for summary judgment, "the moving party is considered to have sufficient notice of the imminence of summary judgment in some form."  Op. at 4.  Federal Rule of Civil Procedure 56(f) also gives the court the authority to grant summary judgment in favor of the non-moving party.  This decision reinforces the lesson that attorneys should be thoughtful when asking the court to enter summary judgment; the court just might enter summary judgment against you.