APPEAL POINTS

1: Whether the Magistrate Judge erred in granting and the District Judge erred in denying the appeal of a motion to enlarge time to respond to Summary Judgment by not treating the motion as a Rule 56(f) motion.

2: Whether the Magistrate Judge erred in granting and the District Judge erred in denying the appeal of a motion to enlarge time to respond to Summary Judgment by not holding the Defendants' motion to enlarge time to the requirements of Rule 56(f).

3: Whether the requirements of Rule 56(f) have been met in Defendants' motion to enlarge time to respond to Summary Judgment.

4: Whether the motion to enlarge time to respond to Summary Judgment should be reversed and remanded to the District Court for action on the Motion for Summary Judgment.

STATEMENT OF FACTS

Plaintiff filed a properly structured Motion for Summary Judgment on November 1, 2004. 

Defendants filed a motion to enlarge time to respond to Plaintiff's motion for Summary Judgment, pursuant to rule 6.01 on November 12, 2004.

Plaintiff received the Motion to enlarge time to respond to Summary Judgment on November 15, 2004.

The Magistrate Judge granted the motion to enlarge time for Defendant's response to Summary Judgment on November 16, 2004.

Plaintiff filed a response in objection to the motion to enlarge time on November 17, 2004.

Plaintiff filed a timely Notice of Appeal and objection to the Magistrate Judge's order granting the enlargement of time on November 23, 2004.

Plaintiff filed a Motion of Appeal to the District Judge on December 3, 2004.

Plaintiff filed a Motion for Stay on December 3, 2004.

The Magistrate Judge ordered the Plaintiff to take part in the Deposition for December 8, 2004, on December 3, 2004.

The District Judge denied the Motion of Appeal on December 7, 2004. Such order was not posted to the docket until December 8, 2004.

Plaintiff was deposed by Defendants on December 8, 2004.

All time for discovery has expired as of December 10, 2004.

AUTHORITIES

Quoting the Third Circuit; "the United States Supreme Court has held that a district court must apply Federal Rule of Civil Procedure Rule 56(f) if the opposing party has not made full discovery. Celotex, 477 U.S. at 326. In order to preserve the issue for appeal, Rule 56(f)
requires the opposing party to a motion for summary judgment to file an affidavit outlining the reasons for the party's opposition. See St. Surin, 21 F.3d at 1313; Galgay v. Gil-Pre Corp., 864 F.2d 1018, 1020 n.3 (3d Cir. 1988); Dowling v. City of Philadelphia, 855 F.2d 136, 139-40 (3d Cir. 1988).The Third Circuit has stated that if a Rule 56(f) motion does not meet the affidavit requirement, the opposing party "must still 'identify with specificity what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.'" Id. (quoting Lunderstadt, 855 F.2d at 71)." (quoted from SYNCOR INTERNATIONAL CORPORATION v. CHETAN MODY and PINESTAR TECHNOLOGY; NO. 98-6284)

Here, it appears that the district court did not apply Rule 56(f). Both the granting of the motion to enlarge time and the denial of the motion of appeal were ordered without comment through a stamped order on the front page of the documents ordered. Defendants had not conducted any discovery. Defendants filed a motion to enlarge time to respond to Summary Judgment and failed to outline the reasons for any opposition in support of their motion to enlarge time to respond. Defendants did not meet the affidavit requirement. Defendants have failed to file any response to the motion for Summary Judgment.

Quoting the DC Circuit: "Under the Federal Rules, a party who has had a reasonable opportunity to prepare his case may not plead ignorance of the facts that would support his Opposition.  See, 10A Federal Practice and Procedure at § 2741 (1983).  Instead, a respondent to a summary judgment motion must either present affidavits opposing a summary judgment motion or explain his inability to do so.  United States v. General Motors Corp.  518 F.2d 420, 442 (D.C. Cir. 1975)." and "In a recent case, the Court of Appeals for this [DC] Circuit summarized the burden that a Rule 56(f) movant bears.  He must "show...the trial court what facts he hopes to discover and what reason justifies his inability to produce them on the motion."  Hotel & Restaurant Employees Union, Local 25, et. al., v. Attorney General of the United States, No. 84-5859, slip op. at 22-23 (Oct. 31, 1986) (citing Exxon Corp. v. FTC, 633 F.2d 120, 126-27). (quoted from Camm v. Kennickell; No. 85-3844; 

Here, Defendants' motion to enlarge time to respond to Summary Judgment does not even attempt to meet this burden.

Quoting this Court of Appeals; "Rule 56(f) of the Federal Rules of Civil Procedure allows a party who has no specific material contradicting her adversary's presentation of summary judgment to survive a summary judgment motion if she presents valid reasons justifying the failure of proof. In addition, the party or counsel must file an affidavit explaining why she could not respond to the motion for summary judgment without discovery. Committee for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992). Where a party opposing summary judgment and seeking a continuance pending completion of discovery fails to take advantage of the shelter provided by Rule 56(f) by filing an affidavit, there is no abuse of discretion in denying the motion to extend time and granting summary judgment, if it is otherwise appropriate. Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 832-33 (10th Cir. 1986); see also Murphy v. International Business Machs. Corp., 23 F.3d 719, 722 (2d Cir. 1994) (concluding no abuse of discretion in granting summary judgment where plaintiff alleged necessity for additional discovery but failed to submit affidavit specifying why)." Quoted from the unpublished case No. 01-1580; WORSTER v. UNITED STATES POSTAL SERVICE, 4th cir.). 

Here, Defendants did not file the required affidavit and did not present any valid reason excusing either the failure to conduct timely discovery or the failure to file a Rule 56(f) affidavit.  

Quoting this Court of Appeals; "The party opposing the motion for summary judgment must submit an affidavit showing that it could not properly oppose the motion without conducting discovery. See Fed. R. Civ. P. 56(f). As we have often stated, "`[a] party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirements of Rule 56(f).'" Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (quoting Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 215 (4th Cir. 1993))(quoted from the unpublished opinion of MUNONYE v. SODEXHO MARRIOTT SERVICES, December 20, 1999 (4th cir.).

Here, Defendants did not file any information indicating that discovery was necessary to respond to the Summary Judgment. Defendants simply asserted a desire to make a response, "much more efficient". 

Quoting this Court of Appeals: "As the Sixth and Eighth Circuits aptly stated: "Rule 56(f) is not a shield that can be raised to block a motion for summary judgment without even the slightest showing by the opposing party that his opposition is meritorious." Emmons v. McLaughlin, 874 F.2d 351, 356 (6th Cir. 1989) (quoting Willmar Poultry Co. v. Morton-Norwich Prod., Inc., 520 F.2d 289, 297 (8th Cir. 1975)). To take advantage of Rule 56(f) the party opposing summary judgment must show how discovery will allow her to rebut the motion. Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 409 (6th Cir. 1998). First, discovery should not be used for fishing expeditions. R. Ernest Cohn, D.C. v. Bond, 953 F.2d 154, 159 (4th Cir. 1991). [Defendants] [have] not made [the] court aware of any claims [they] might have against [Plaintiff's motion for Summary Judgment], and mere speculation and conjecture are insufficient grounds for discovery. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 533 (1st Cir. 1996)." (quoted from the unpublished opinion of DELGADO v. PRUDENTIAL INSURANCE COMPANIES OF AMERICA No. 97-2593, October 22, 1998)

Here, Defendants have not shown the slightest opposition to the motion for Summary Judgment. Defendants motion to enlarge time to respond to Summary Judgment did not allege any issue of material fact.

Quoting this Court of Appeals: "In declining to order a continuance under Rule 56(f), the district court noted that Morrow had failed to identify any specific facts that he was yet to discover. Rather, the court concluded that Morrow sought a "fishing expedition" in that he made only generalized statements about disparate treatment by the Prince George's County Police Department's disciplinary system without specifying what discovery might be needed or pointing to specific facts that might merit further discovery. Moreover, Morrow had several months from the time he filed his complaint until the summary judgment motion was filed to conduct discovery, yet failed to do so. We find that the district court did not abuse its discretion in denying the Rule 56(f) motion. See Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995)." (quoted from the unpublished opinion of BARNES, Appeal from the United States District Court for the District of Maryland, at Greenbelt, Deborah K. Chasanow, District Judge, CA-01-1221-CA, November 18, 2002)

Here, Defendants failed to identify any specific facts yet to be discovered. Defendants failed to point to any specific facts that might merit further discovery. Defendants had several months from the time the complaint was filed until the Summary Judgment motion was filed to conduct discovery and failed to do so.

Quoting the Sixth Circuit Court of Appeals: "...it is well-established that a motion for summary judgment may be filed prior to discovery. Rule 56(b) allows a defendant to file the motion at any time, so long as the non-moving party has had sufficient time to engage in discovery. Fed R. Civ. P. 56(b); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 232 (6th Cir. 1994). Under the facts of this case, where the summary judgment motion was filed a full six months after Chattanooga Publishing filed its answer to Jefferson’s complaint, we conclude that Jefferson had sufficient time to engage in the discovery process. Furthermore, Jefferson never indicated, as Rule 56(f) requires, that he did not have a sufficient opportunity for discovery. Rule 56(f) provides that a party opposing a motion for summary judgment is allowed to claim an inability to present facts essential to justify its opposition to summary judgment, and in certain cases the district court may postpone the motion and permit further discovery. It is up to the party opposing the motion to take advantage of Rule 56(f), however, and to state why more discovery is needed. See Good v. Ohio Edison Co., 149 F.3d 413, 422 (6th Cir. 1998) (holding that a party invoking Rule 56(f) protections must “affirmatively demonstrate . . . how postponement of a ruling on the motion will enable him, by discovery and other means, to rebut the movant’s showing of the absence of a genuine issue of fact”). Jefferson made no such demonstration. Thus, he cannot properly assert this argument on appeal." (quoted from Willie Jefferson, v. Chattanooga Publishing Company, 04a0219p.06, 

Here, Plaintiff filed his motion for Summary Judgment a full six months after the filing of the complaint and Defendants had sufficient time to engage in discovery. Defendants never indicated, as Rule 56(f) requires, that they did not have sufficient time to engage in the discovery process. Defendants never indicated, as Rule 56(f) requires, that they did not have sufficient opportunity for discovery. Defendants never indicated why discovery was needed to respond to Summary Judgment. Defendants did not 'affirmatively demonstrate' how postponement of a ruling on the motion would enable them, by discovery or any other means to rebut the movant's showing of the absence of a genuine issue of fact.

Quoting The Ninth Circuit, Rule 56(f) "affords trial courts the discretion to postpone summary judgment proceedings where the opposing party demonstrates, for [ref. del] reasons specified in an affidavit, that it needs more time to obtain information that is necessary to oppose to the motion. The rule provides that: Should it appear from the affidavits of a party opposing [summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may . . . order a continuance to permit [further] discovery to be had . . . ." FED. R. CIV. PROC. 56(f). The purpose of this rule is to preclude summary judgment where the other side has not had a fair opportunity to gather relevant evidence. However, rule 56(f) was not intended to absolve a party opposing summary judgment of its affirmative rule 56(e) obligation to set forth the evidence it does have at the time its opposition is due. As the Ninth Circuit has held, this Court should exercise its discretion to grant a Rule 56(f) application where the applicant "makes a timely application which specifically identifies relevant information" that can be obtained through further discovery. Church of Scientoiogy of San Francisco v. IRS, 991 F.2d 560, 562 (9th Cir. 1993) (emphasis added), vacated in part on other grounds, 30 F.3d 101 (9th Cir. 1993)." (quoted from PATMONT MOTOR WERKS, Inc. v. GATEWAY MARINE, Inc., et al; No. C 96-2703 TEH)

Here, Defendants have not shown, in any way, that they needed more time to obtain information to oppose the motion of Summary Judgment in that Defendants never indicated discovery would result in any specific fact essential to justify their opposition. Defendants had a fair opportunity to gather relevant evidence and failed to do so. Defendants did not indicate any specific relative information that could be obtained through discovery.

Quoting The Third Circuit, "...plaintiffs did not specify "what particular information is sought; how, if uncovered, it would preclude  summary judgment; and why it has not previously been obtained."  Dowling v. City of Philadelphia, 855 F.2d 136, 140 (3d Cir. 1988)." (quoted from PASTORE v. THE BELL TELEPHONE COMPANY OF PENNSYLVANIA; UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, NO. 93-3556).

Here, Defendants did not specify what particlar information was sought, how, if uncovered, it would preclude Summary Judgment or why it was not previously obtained.

Quoting Fed. R. Civ. P. Rule 56(f) "When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."

Here, Defendants did not attach any affidavit to the motion to enlarge time. Defendants did not state any reasons why they could not present an opposition. Defendants did not allege any issue of material fact existed.

Quoting this Court of Appeals from CAROLINA SECURITY AND FIRE INCORPORATED et.al. v. CONTROL SYSTEMS INTERNATIONAL, INCORPORATED; Appeal from the United States District Court for the District of South Carolina, at Columbia. Patrick Michael Duffy, District Judge. (CA-95-1577-3-23) Decided: July 21, 1998: "A party opposing a properly supported motion for summary judgment may not rest on the mere allegations or denials of his pleadings, but must set forth, by affidavit or other proof, specific facts showing that there is a genuine issue of material fact. Id. The existence of a mere scintilla of evidence in support of the nonmoving party's position is not sufficient to overcome a motion for summary  judgment. A party's response to the motion must set forth specific facts, admissible in evidence, showing that there is a genuine issue for  trial. If he does not so respond, summary judgment should be entered against him. Id. The evidence and all reasonable inferences from the  evidence must be viewed in the light most favorable to the nonmoving party. Id. If a party fails to show an essential element of the case for which that party has the burden of proof, summary judgment is appropriate. Id."

Here, Defendants failed to show any essential element of the case in their burden of proof, both in their lack of response to the motion for Summary Judgment and in their motion to enlarge time to respond to Summary Judgment.


Expedited

This case and the issues within it are of utmost importance to the