APPEALS ELEMENTS --------------------------- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 95-K-2143 RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation; and BRIDGE PUBLICATIONS, INC., a California non-profit corporation, Plaintiffs, v. F.A.C.T.NET, INC., a Colorado corporation; LAWRENCE WOLLERSHEIM, an individual; and ROBERT PENNY, an individual, Defendants. II. STANDARD FOR OBTAINING A RULE 56(f) CONTINUANCE Rule 56(f) of the Federal Rules of Civil Procedure provides that: Should it appear from the affidavits of the 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. The policy behind Fed.R.Civ.P. 56(f) is straightforward: "Summary judgment should not be granted `where the non-moving party has not had the opportunity to discover information that is essential to his opposition.'" Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521-22 (10th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). "The protection afforded by Rule 56(f) is an alternative to a response in opposition to summary judgment under 56(e) and is designed to safeguard against a premature or improvident grant of summary judgment." Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986) (quoting 10A Wright, Miller, & Kane, Federal Practice and Procedure §2740 (1983)). See, Miller v. United States Department of Transportation, 710 F.2d 656, 666 (10th Cir. 1983) ("[D]iscovery is strongly favored and generally denying the right to have full discovery on all pertinent issues before a summary judgment is granted would be error, particularly in the face of a Rule 56(f) affidavit.") Consistent with its underlying policy, courts treat Rule 56(f) motions and affidavits liberally: "`Unless dilatory or lacking in merit, the motion should be liberally treated.'" Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521-22 (quoting James W. Moore & Jeremy C. Wicker, Moore's Federal Practice ¶ 56.24 (1988)). See, Jensen v. Redev. Agency, 998 F.2d 1550, 1554 (10th Cir. 1993); RTC Mortgage Trust 1994-S3 v. Guadalupe Plaza, 918 F.Supp. 1441, 1448 (D.N.M. 1996). More specifically, in order to invoke the shelter provided by Rule 56(f), a party must (1) file an affidavit, Pasternak, 790 F.2d at 832-33, (2) identifying the probable facts not available and their relevance, Committee for the First Amendment v. Campbell, 962 F.2d at 1522, (3) explaining "why facts precluding summary judgment cannot be presented...," Id., and (4) stat[ing] with specificity how the desired time would enable the non-moving party to meet its burden in opposing summary judgment...," Jensen, 998 F.2d at 1554 (citation omitted). -------------------------------- CHURCH OF SCIENTOLOGY v. I.R.S., 991 F.2d 560 (9th Cir. 1993) 991 F.2d 560 A denial of a Rule 56(f) application is reviewed under the abuse of discretion standard. VISA Int'l Serv. v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986). The adequacy of a search under the Freedom of Information Act is judged by a standard of reasonableness. Zemansky v. United States EPA, 767 F.2d 569, 571 (9th Cir. 1985). We review a district court's grant of summary judgment de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 629 (9th Cir. 1987). Rule 56(f) of the Federal Rules of Civil Procedure gives the trial court discretion to allow discovery prior to the grant of summary judgment where "it appear[s] 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." In general, a denial of a Rule 56(f) application is disfavored where the party opposing summary judgment makes a timely application which specifically identifies relevant information, and where there is some basis for believing that the information sought actually exists. Visa, 784 F.2d at 1475. On the other hand, courts have denied a Rule 56(f) application where the evidence sought "was almost certainly nonexistent or was the object of pure speculation." Id. (citations omitted). We have not previously addressed whether it is an abuse of discretion to deny any discovery prior to hearing a motion for summary judgment in a FOIA case. On its face, Rule 56(f) leaves the decision to grant discovery wholly within the discretion of the district judge.4 In determining whether the district court abused its discretion in the cases before us, we must first consider the peculiar disadvantages facing a FOIA plaintiff. ------------------------------ GOLAN v. ASHCROFT (from argument) IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO Civil Action No. 01-B-1854 Federal courts have broad authority pursuant to Federal Rule of Civil Procedure 26(c) tolimit discovery as necessary to “protect a party or person from annoyance, embarrassment,oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). In recognition of this authority,the Supreme Court has directed that “judges should not hesitate to exercise appropriate controlover the discovery process.” Herbert v. Lando, 441 U.S. 153, 177 (1979). See also Schwarz v.Federal Bureau of Investigation, 1998 WL 667643, *3 (10th Cir. 1998) (unpublished) (notingdistrict courts’ “broad discretion to manage the scope of discovery”); Chagnon v. Bell, 642 F.2d1248, 1266 (D.C. Cir. 1980) (district court should stay discovery where doing so would promote“just, speedy, and inexpensive determination” of action). As a result, courts of appeals routinelyhold that it is appropriate to stay discovery where a dispositive motion is pending and where, ashere, the dispositive motion raises purely legal issues, for which factual development isinappropriate. See, e.g., Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir. 2002)(stay of discovery appropriate because Plaintiffs did not persuade the Court that discovery wasnecessary in order to respond to the motion for summary judgment); Petrus v. Bowen, 833 F.2d581, 583 (5th Cir. 1987) (courts should exercise their “broad discretionary and inherent power tostay discovery until preliminary questions which may dispose of the case are determined”);Transunion Corp. v. Pepsico, 811 F.2d 127, 130 (2d Cir. 1987) (stay of discovery appropriatewhere discovery was unnecessary to resolving the pending dispositive motion); Jarvis v. Regan,833 F.2d 149, 155 (9th Cir. 1987) (discovery appropriate only as necessary to resolve factual Page 4 -4-disputes raised in pending dispositive motion; all other discovery properly stayed); Feist v.Jefferson County Commissioners Court, 778 F.2d 250, 252 (5th Cir. 1985) (affirming districtcourt decision to stay discovery until it could be determined whether the plaintiff stated a claimupon which relief could be granted); Florsheim Shoe Co. v. United States, 744 F.2d 787, 797(Fed. Cir. 1984) (holding that, where a motion to dismiss raises questions of law, discovery is“not necessary or appropriate,” and a stay of discovery is proper).Here, the reasons for staying discovery are straightforward. The government’s motion forsummary judgment argues that this lawsuit advances a purely legal challenge to the validity of§514 of the URAA. See Gov’t MSJ, Docket #36. This is further explained in the government’sopposition to Plaintiffs’ Rule 56(f) motion. See Docket #41. The Court can resolve the pendingmotion for summary judgment by reference to the parties’ legal arguments, filed in their legalbriefs. There are no relevant facts to establish; therefore no discovery is necessary. See Personsv. Runyon, 1999 WL 104427, *3 (10th Cir. 1999) (unpublished) (holding that discovery isinappropriate where legal issues determine the outcome of the lawsuit). ------------------------ If you face this problem in your lawsuit, you should request a continu-ance under Rule 56(f).19Rule 56(f) permits a court to delay the date by which you must respond to a summary judgment motion, so that you may prepare declarations and/or conduct additional discovery. To win a Rule 56(f) continuance, you must show you were diligent in your efforts to conduct discovery before the defendants filed their motion. Thus, if during the first three months of discovery you did not serve any inter-rogatories, document requests, requests for admissions, or notices of depositions on the defendants, you will have a tough time convincing the court that you deserve more time for discovery now that the defendants have moved for summary judgment.20As one court put it, “Rule 56(f) is designed to minister to the vigilant, not to those who slumber upon perceptible rights.”21If you want a continuance under Rule 56(f), act quickly; make your request at the very latest – sooner if possible – when you submit your response to the defendants’ summary judgment motion. Different cir-cuits have different rules about how to make Rule 56(f) requests. To be safe, you should file two documents: (1) a Motion for Rule 56(f) Continuance, and (2) a declaration (or affidavit) explaining why you “cannot for reasons stated present . . . facts essential to justify [your] opposition.”22Your declaration should explain, as specifically as pos-sible: what information and exhibits you expect to get through additional discovery; how the information and exhibits would allow you to show the existence of genuine issues of material fact; and why you were unable to get the information and exhibits earlier. 0The district court will grant the defendants’ motion if it concludes that, after having adequate time to conduct discovery, you have failed to establish each element of your claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).21Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996).22Fed. R. Civ. P. 56(f).23For example: Did the defendants file their motion before the discovery process even began? Did you learn about the existence of important documents only as a result of earlier discovery requests? Have the defendants refused to produce certain informa-tion and exhibits, leading you to move to compel their responses?24Becauseherethedefendantsarethenon-movingparty,the court must assume the truth of their evidence anddraw all reasonable inferences in their favor. Rule 56(f) states: “Should it appear from the affida-vits 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.” --------------------------- UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 03-6312 (D.C. No. 02-CV-1695-L) (W.D. Okla.) SUSAN SCHLUSSLER-WOMACK, v. CHICKASAW TECHNOLOGY PRODUCTS INC. et.al. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). authority to rule 28 U.S.C. § 1291 she argued that summary judgment was improper until she could conduct discovery. Although the latter argument was based on Federal Rule of Civil Procedure 56(f), she did not attach an affidavit as required by that rule, and she did not make specific allegations concerning the discovery she wanted to pursue. The district court held that Ms. Schlussler-Womack's attachments failed to satisfy W.D. Okla. LCvR 7.2(h),(2) and so they would not be considered. In addition, the district court held that Ms. Schlussler-Womack had not supported her request for a continuance with an affidavit, as required by Federal Rule of Civil Procedure 56(f), and so she would not be allowed to invoke that rule. Further, Ms. Schlussler-Womack admittedly failed to fulfill the requirements of Rule 56(f) by not attaching an affidavit in support of her request for a continuance. The district court could have excused her failure and exercised its discretion to grant her a continuance. But it did not, and its declining to excuse her non-compliance was not an abuse of its discretion. Carr v. Castle, 337 F.3d 1221, 1233 (10th Cir. 2003); Comm. for the First Amend., 962 F.2d at 1522; see also Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986) ("Rule 56(f) may not be invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable; the opposing party must demonstrate how additional time will enable him to rebut movant's allegations of no genuine issue of fact.") (citation and quotation omitted). Similarly, the district court did not abuse its discretion in relying on LCvR 56.1(c) to deem the bulk of Chickasaw's facts unopposed and admitted. See Mitchael v. Intracorp, Inc., 179 F.3d 847, 856 (10th Cir. 1999). "The mere existence of a scintilla of evidence in support of the nonmovant's position is insufficient to create a dispute of fact that is "genuine"; an issue of material fact is genuine only if the nonmovant presents facts such that a reasonable jury could find in favor of the nonmovant." These factors are not present here. Moreover, it was within the court's discretion to deny relief under Rule 60(b)(1) in these circumstances, given that counsel failed to follow the plain language of Rule 56(f). Cf. United States v. Torres, 372 F.3d 1159, 1163-64 (10th Cir. 2004) (holding that counsel's failure to follow an unambiguous rule does not constitute "excusable neglect" under Fed. R. App. P. 4(b)(4)). Therefore, it was not an abuse of discretion for the district court to deny the motion to reconsider. ------------------------------ Responses to the Motion The non-movant may respond to a motion for S/J in three ways and may also file a cross-motion for summary judgment. If the non-movant has not had the opportunity to obtain discovery on the issues the movant claims are grounds for judgment, she or he may present an affidavit under 56(f) stating why he cannot at that time present facts to oppose the motion. Courts will usually grant the non-movant time to undertake discovery on those issues. If the non-movant believes the movant has not presented sufficient supporting materials, she or he may choose to file a response without any supporting materials. The movant has the burden to make a "prima facie" case that there is no genuine issue as to a particular material fact. Only then will the burden shift to the non-movant. The risk for the non-movant of not presenting any supporting materials is that if the court believes the movant has met her burden of production, the movant may prevail under Rule 56(e). "The purpose of Rule 56 is to enable a party who believes there is not genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues." Finally, the non-movant may respond to the motion for summary judgment by filing a cross-motion for summary judgment. This does not concede the absence of genuine disputes of fact on the initial motion. Most state rules provide parameters for what is necessary to oppose a motion for summary judgment. For example, D.Kan. Rule 56.1, provides that: A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party. The statements required by this subsection shall be in addition to the material otherwise required by these rules and the Federal Rules of Civil Procedure. Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) What are the facts and procedural history here? What is the rule discussed here regarding the burden of producing evidentiary matters in opposition to motion for summary judgment? How did the Court apply the rule in this case? Celotex v. Catrett, 477 U.S. 317 (1986) This case is important because the Supreme clarified the standard for summary judgment when the moving party does not have the burden of [trial] production on a material issue. What is the standard announced by the Court? How did the defendant here try to show that plaintiff could not prove causation? How did the plaintiff respond? Assume that plaintiff attached to his response to defendant's motion for summary judgment a letter from decedent's former supervisor to plaintiff's lawyer stating, among other things, that "I am certain which asbestos products were used at the factory during the time Mr. Louis H. Catrett worked there." Would this document be sufficient to overcome defendant's motion? How about if the supervisor's letter states that "I can testify that during the time Mr. Catrett was employed at the factory, he was exposed to Celotex"? If you represented plaintiff, what would you have done differently to overcome D's motion for summary judgment? What is the practical effect of this case on discovery in federal cases? Compare the standard for summary judgment in Adickes with Catrett, how would you describe the two standards? Which is more reasonable? Recent Summary Judgment Case-Law Read Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999) and Jones v. Clinton, 990 F.Supp. 657 (E.D. Arkansas 1998) for some recent discussions on the standard for summary judgement. ------------------------- Cubby v. CompuServe Inc No. 90 Civ. 6571 United States District Court, S.D. New York. Oct. 29, 1991. Once a motion for summary judgment is properly made, however, the burden then shifts to the non-moving party, which " 'must set forth specific facts showing that there is a genuine issue for trial.' " Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (quoting Fed.R.Civ.P. 56(e)). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10 (emphasis in original). "Conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,' and more than 'some metaphysical doubt as to the material facts.' " Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986)); see also Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991). "The non-movant cannot 'escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,' or defeat the motion through 'mere speculation or conjecture.' " Western World Insurance Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (quoting Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir.1989) and Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)). Plaintiffs also suggest, in their memorandum of law in opposition to CompuServe's summary judgment motion, that additional discovery is needed and should preclude the grant of summary judgment. Fed.R.Civ.P. 56(f) provides that when the party opposing a motion for summary judgment cannot "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 ... discovery to be had." In order to persuade the Court to grant a request for additional discovery, plaintiffs would have to "file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir.1989) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985)). The Court may reject a request for further discovery pursuant to Rule 56(f) if no affidavit is filed or if the request is based on pure speculation as to what would be discovered. Burlington Coat Factory, 769 F.2d at 926-927. In the instant action, plaintiffs have failed to fulfill the requirements enumerated by the Second Circuit in Hudson River Sloop Clearwater and Burlington Coat Factory. Plaintiffs have simply asserted, not in an affidavit but in their memorandum of law, that "[l]ittle in the way of discovery has been undertaken" and that "CompuServe has produced documents in response to the plaintiff's First Document Request, but no depositions of the parties have taken place." Memorandum of Law in Opposition to Defendant CompuServe's Motion for Summary Judgment at 2. Plaintiffs have not specified what facts they wish to discover through depositions or other means and how these are to be obtained, how these are reasonably expected to create a genuine issue of material fact, what efforts they have made to obtain these facts, or why they have been unsuccessful in their efforts. Plaintiffs have therefore not made a showing sufficient to persuade the Court to deny CompuServe's motion for summary judgment or to order a continuance to allow further discovery to take place. For the reasons stated above, CompuServe's motion for summary judgment pursuant to Fed.R.Civ.P. 56 is granted on all claims asserted against it. ------------------------ from augument, not court Consistent with its underlying policy, courts treat Rule 56(f) motions and affidavits liberally: "`Unless dilatory or lacking in merit, the motion should be liberally treated.'" Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521-22 (quoting James W. Moore & Jeremy C. Wicker, Moore's Federal Practice ¶ 56.24 (1988)). See, Jensen v. Redev. Agency, 998 F.2d 1550, 1554 (10th Cir. 1993); RTC Mortgage Trust 1994-S3 v. Guadalupe Plaza, 918 F.Supp. 1441, 1448 (D.N.M. 1996). More specifically, in order to invoke the shelter provided by Rule 56(f), a party must (1) file an affidavit, Pasternak, 790 F.2d at 832-33, (2) identifying the probable facts not available and their relevance, Committee for the First Amendment v. Campbell, 962 F.2d at 1522, (3) explaining "why facts precluding summary judgment cannot be presented...," Id., and (4) stat[ing] with specificity how the desired time would enable the non-moving party to meet its burden in opposing summary judgment...," Jensen, 998 F.2d at 1554 (citation omitted). ---------------------- ------------------------ [1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [2] LEE A. RAND, [3] Plaintiff-Appellant, v. [4] JAMES ROWLAND; NADIM KHOURY, M.D.; WILLIAM BUNNELL; ROY LEE JOHNSON; LEO R. ESTES, [5] Defendants-Appellees. [6] No. 95-15428 [7] D.C. No. CV-91-0680 [29] As a preliminary matter, we are in agreement with other jurisdictions that clear, understandable language must be used in the notice provided. See, e.g., Moore v. State of Fla., 703 F.2d 516, 521 (11th Cir. 1983) (noting that the "notice must be sufficiently clear to be understood by a pro se litigant and calculated to apprise him of what is required under Rule 56") (quoting Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979)); see also Ham v. Smith, 653 F.2d 628, 630 (D.C. Cir. 1981). Beyond this, though the particular wording may vary, the respective circuits that recognize some form of notice requirement are in concert with our holding in Anderson, generally to the effect that the pro se party "must be advised of his right to file countering affidavits or other responsive material and that he be alerted to the fact that his failure to so respond might result in the entry of summary judgment against him." Davis, 600 F.2d at 460; see also Brown v. Shinbaum, 828 F.2d 707, 708 (11th Cir. 1987); Griffith v. Wainright, et al., 772 F.2d 822, 825 (11th Cir. 1985); Lewis, 689 F.2d at 102. ----------------------------- ----------------------------- ---------------------------- possibly not local rule Fed. R. Civ. P. 56(f) Continuance. A request pursuant to Federal Rule of Civil Procedure 56(f) for a continuance of summary judgment pro-ceed-ings must be by separate motion, served and filed within 10 court days after service of the motion for summary judgment, and supported by affidavits, as required by Federal Rule of Civil Procedure 56(f). --------------------------- 4TH CIRCUIT APPEALS RULINGS ------------------ ---------------------------- ------------------------ ----------------------------- UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ------------------------------------------------+ MICHAEL LOMAS, Plaintiff-Appellant, v. No. 01-2139 RED STORM ENTERTAINMENT, INCORPORATED, Defendant-Appellee. ------------------------------------------------+ Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh . Terrence W. Boyle, Chief District Judge . (CA-01-237-5-BO ) Argued: September 23, 2002 Decided: October 28, 2002 In such a situation, "the motion shall be . . . disposed of as provided in Rule 56, and all parties [must] be given [a] reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Alpha of Va., 43 F.3d 922, 928 (4th Cir. 1995). --------------------- UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ------------------------------------------------+ EICKY B. WOODSON, JR., Plaintiff-Appellant, v. No. 01-1642 HERSHEY CHOCOLATE OF VIRGINIA, INCORPORATED, Defendant-Appellee. ------------------------------------------------+ Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (CA-99-076) Submitted: December 20, 2001 Decided: January 2, 2002 Woodson first contends the district court erred in denying his Fed. R. Civ. P. 56(f) motion to extend the time for discovery. The district court's denial of a Rule 56(f) motion is subject to review for abuse of discretion. Gasner v. Board of Supervisors, 103 F.3d 351, 362 (4th Cir. 1996). A review of the record shows ample opportunity for dis- covery between August 1999, when Woodson filed his complaint, and December 2000, when Hershey Chocolate moved for summary judg- ment. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 929 (4th Cir. 1995). The district court did not abuse its discretion in denying Woodson's Rule 56(f) motion. --------------------------------- UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT LOCKWOOD V. PRINCE GEORGE'S COUNTY (CA-98-1385-AW) Argued: May 2, 2000 Decided: June 29, 2000 Fed. R. Civ. P. 56(c). "Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). ------------------------------------------ ------------------------- UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ALBERT LASSITER, Plaintiff-Appellant, v. JANET RENO, United States Attorney General; EDUARDO GONZALEZ, No. 95-2058 Director, United States Marshal Service; HELEN F. FAHEY, United States Attorney; U.S. MARSHAL SERVICE, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CA-94-626) Argued: March 6, 1996 Decided: May 29, 1996 Rule 56(c) of the Federal Rules of Civil Procedure requires the dis- trict court to enter summary judgment against a party who, "after ade- quate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). ----------------------------- Rule 56(c) of the Federal Rules of Civil Procedure requires that the district court enter judgment against a party who,"after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To prevail on a motion for sum- mary judgment, a party must demonstrate that: (1) there is no genuine issue as to any material fact; and (2) it is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the evidence "is so one-sided that one party must prevail as a matter of law," we must affirm the grant of summary judgment in that party's favor. Id. at 252. A party"cannot create a genuine issue of material fact through mere speculation or the building of one infer- ence upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). As the Anderson Court explained,"[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insuf- ficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. We review a district court's grant of summary judgment de novo. See Cooke v. Manufac- tured Homes, Inc., 998 F.2d 1256, 1260 (4th Cir. 1993). --------------------------- footnote 5 The cases on which petitioners rely (Pet. 13) do not conflict with the court of appeals’ decision here. Gay v. Wall, 761 F.2d 175,177 (4th Cir. 1985), merely states that the non-moving party to amotion for summary judgment must be given a “reasonable oppor-tunity to present all material made pertinent to such a motion byRule 56.” Nothing in the decision dispenses with the specific requirements for justifying a request for discovery under Federal Rule of Civil Procedure 56(f). Resolution Trust Corp. v. NorthBridge Associates, Inc., 22 F.3d 1198, 1203 (1st Cir. 1994), states that such a discovery request requires a proffer setting forth “aplausible basis for believing that specified facts, susceptible of col-lection within a reasonable time frame, probably exist,” to permitdiscovery under Fed. R. Civ. P. 56(f). Here, petitioners failed todemonstrate any “plausible basis” for “believing” that the FDAhad ever enforced the vending machine regulation. -------------------------------------------------------------------------------- UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Robert J. Camm, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 85-3844 ) Ralph E. Kennickell, Jr., et al., ) ) Defendants. ) PLAINTIFFS HAVE NOT SHOWN A NEED FOR DISCOVERY TO OPPOSE DEFENDANT'S SUMMARY JUDGMENT MOTION. Defendants filed their Motion to Dismiss or for Summary Judgment on March 5, 1986. On April 25, 1986, plaintiffs submitted their "Answer to Defendants (sic) Motion for Summary Judgment or to Dismiss," along with a lengthy Statement of Material Facts in Dispute, nineteen evidentiary exhibits, and one affidavit. Despite this extensive proffer of evidence that plaintiffs believe demonstrates disputes over material facts, on July 23, 1986, plaintiff moved for discovery pursuant to Fed. R. Civ. P. 56(f). Rule 56(f) provides: Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his 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. Rule 56(f) is infused with a spirit of liberality. Wallace v. Brownell Pontiac-GMC Company, Inc., 703 F.2d 525, 527 (11th Cir. 1983). Consequently, plaintiffs' failure to provide affidavits detailing the need for and nature of the proposed discovery would not necessarily bar a 56(f) motion that otherwise seemed justified. See, e.g., Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1106 (5th Cir.), cert. denied, 414 U.S. 1116 (1973). Unfortunately for plaintiffs, they have hardly shown a need for gathering additional information. Plaintiffs state that "their answer to Defendant (sic) motion for summary judgment is sufficient......" Plaintiffs' Memorandum of Law in Support of Plaintiff's (sic) Motion for Discovery Pursuant (sic) to Rule #56 (f) 1; see also, Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Discovery Pursuant (sic) to Rule #56 (f) 1. Thus, plaintiffs' belief that they have documented "facts essential to justify [their] opposition" is obvious. Nonetheless, they ask for apparently unlimited discovery to supplement their answer in case this Court is not convinced that their opposition is justified. Plaintiffs' Memorandum of Law at 1; Plaintiffs' Reply at 1. To grant plaintiffs' motion would be to the purpose of Rule 56(f). 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). He may not submit a bevy of exhibits, bill them a sufficient answer to a summary judgment motion, and three months later petition for additional discovery to stave off a potentially adverse ruling. There is a second ground for denying plaintiffs' motion. In a recent case, the Court of Appeals for this 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). Plaintiffs' motion does not even attempt to meet this burden. As such, the Court must deny their motion for additional discovery. ----------------------------