Unpublished Dispositionleonidas Herrero Gil De Gibaja, Appellant, v. Sears, Roebuck and Co., et al., Appellees, 824 F.2d 978 (Fed. Cir. 1987)

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US Court of Appeals for the Federal Circuit - 824 F.2d 978 (Fed. Cir. 1987) May 1, 1987

Before FRIEDMAN, Circuit Judge, BALDWIN, Senior Circuit Judge, and NIES, Circuit Judge.



The United States District Court for the Southern District of Florida granted a motion for summary judgment dismissing appellant's action for patent infringement. We affirm on the basis of the opinion of the district court.


Although appellant was given ample time, almost nine months, he failed to proffer any evidence to substantiate the allegations of his complaint. Under the Federal Rules of Civil Procedure, when a motion for summary judgment is made and supported, an adverse party may not rest upon the mere allegations of his pleading. His response must set forth specific facts showing that there is a genuine issue for trial. 28 U.S.C. § 56(e).

The district court deemed appellant's failure to provide a response as an admission of all material facts set forth in support of appellees' motion for summary judgment. This unchallenged evidence establishes noninfringement. Appellant having failed to raise a genuine issue of material fact requiring trial, the district court's entry of summary judgment in favor of appellees as a matter of law was appropriate.