"When the moving party has carried its burden under Rule 56(c), its opponents must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith RadioCorp., 475 U.S. 574, 586 (1986). Rule 6. Time (b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them. 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. --------------------------- United States Court of Appeals For the First Circuit No. 03-2225 VARGAS-RUIZ v. GOLDEN ARCH DEVELOPMENT, INC., (1st Cir C. of App.) "Where, as in this case, a party professes an inability to respond to a summary judgment motion because of incomplete discovery, his recourse is by way of Fed. R. Civ. P. 56(f). (1) That rule "describes a method of buying time for a party who, when confronted by a summary judgment motion, can demonstrate an authentic need for, and an entitlement to, an additional interval in which to marshal facts essential to mount an opposition." Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994). Here, however, the plaintiff did not invoke Rule 56(f) before the district court. By the same token, he filed no motion to defer the decision, prepared no affidavit delineating either the etiology or the dimensions of his inability to proceed, and offered the district court no coherent explanation of why he needed extra time or what fruits he anticipated that extra time might yield. While we do not insist on slavish compliance with the imperatives of Rule 56(f) in order to obtain its benefits, see Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988); Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir. 1984), we do insist upon substantial compliance. As we explained in Paterson-Leitch: [A party] departs from the plain language of [Rule 56(f)] at his peril. When a departure occurs, the alternative proffer must simulate the rule in important ways. It should be made in written form and in a timely manner . . . . The statement must be made, if not by affidavit, then in some authoritative manner -- say, by the party under penalty of perjury or by written representations of counsel subject to the strictures of Fed. R. Civ. P. 11 -- and filed with the court. Then, too, it should articulate some plausible basis for the party's belief that specified "discoverable" material facts likely exist which have not yet come in from the cold. There must also be shown some realistic prospect that the facts can be obtained within a reasonable (additional) time, and will, if obtained, suffice to engender an issue both genuine and material. Last, the litigant must demonstrate good cause for failure to have conducted the discovery earlier. 2. The rule reads: Should it appear from the affidavits of a party opposing the motion [for summary judgment] 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. ---------------------------- under Rule 56(f), a court should deny or continue a motion for summary judgment only if the "party opposing the motion ... cannot for reasons stated present by affidavit facts essential to justify the party's opposition". Fed. R. Civ. P. 56(f); see also Jarvis v. Nobel/Sysco Food Serv. Co., 985 F.2d 1419, 1422 n.2 (10th Cir. 1993). A party may not invoke Rule 56(f) "by merely asserting that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable." Ben Ezra, Weinstein, & Co., Inc. v. America Online Inc., 206 F.3d 980, 987 (10th Cir. 2000) (citation omitted); accord Jensen v. Redev. Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir. 1993). Rather, the party seeking relief must present an affidavit "explain[ing] why facts precluding summary judgment cannot be presented ... includ[ing] identifying the probable facts not available and what steps have been taken to obtain these facts." Price ex rel. Price v. Western Resources, Inc., 232 F.3d 779, 783 (10th Cir. 2000) (citing Committee for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992).) ---------------------------- Committee notes to Rule 56(f) Extensions of time to oppose summary adjudication should be less frequent than under former rule because of new restrictions as to when such motions can be filed and the longer time allowed for the response. A request should be presented by an affidavit which, under the revised rule, must reflect good cause for the inability to comply with the stated time requirements. The revised rule also permits the court to accept an offer of proof where a party is unable to procure supporting materials that would satisfy the requirements of subdivision (e). ---------------------------- The Appellees' motion to enlarge time to respond to summary judgement argument fails to provide good cause to allow the extension as, contrary to counsel's claim said motion to enlarge time was based solely on '