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Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.
The 1963 amendment to Rule 56(e) was not designed to modify the burden of making the showing generally required by Rule 56(c). The last two sentences of Rule 56(e) were added to disapprove a line of cases allowing a party opposing summary judgment to resist a properly made motion by reference only to its pleadings. This conclusion is bolstered by the fact that district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence. See 244 U.S.App.D.C. at 167-168, 756 F.2d 189 (Bork, J., dissenting); 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2720, pp. 28-29 (1983). It would surely defy common sense to hold that the District Court could have entered summary judgment sua sponte in favor of petitioner in a case, but that petitioner's filing of a motion requesting such a disposition precluded the District Court from ordering ...
