UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ROMAINE T. WORSTER, Plaintiff-Appellant, v. No. 01-1580 UNITED STATES POSTAL SERVICE, William J. Henderson, Postmaster General, Defendant-Appellee. Worster also contends that the district court erred in denying her motion for an extension of time to conduct discovery. However, a trial court necessarily has wide discretion in managing pre-trial dis- covery, and an appellate court should not disturb its orders absent a clear abuse of discretion. Ardrey v. United Parcel Serv., 798 F.2d 679, 682 (4th Cir. 1986). Rule 56(f) of the Federal Rules of Civil Pro- cedure 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 explain- ing 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 appro- priate. 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 speci- fying why). Here, Worster did not file the required affidavit and did not present any valid reason excusing either the failure to conduct timely discov- ery or the failure to file a Rule 56(f) affidavit. Because Worster did not file the required affidavit, the district court did not abuse its dis- cretion in denying Worster's motion for an extension of time. ------------------------ QUOTED IN UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UKACHI O. MUNONYE, Plaintiff-Appellant, and DENNIS SMITH, Plaintiff, No. 98-2702 v. SODEXHO MARRIOTT SERVICES, INCORPORATED, Defendant-Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, District Judge. (CA-97-2923-MJG) Submitted: November 23, 1999 Decided: December 20, 1999 The party opposing the motion for summary judgment must submit an affidavit showing that it could not properly oppose the motion without conducting discov- ery. 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 Offi- cers Ass'n, 10 F.3d 207, 215 (4th Cir. 1993)). ------------------ UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT MIRIAM DELGADO, Plaintiff-Appellant, and KRISTINE SENTER; MICHAEL A. SENTER, JR., No. 97-2593 Plaintiffs, v. PRUDENTIAL INSURANCE COMPANIES OF AMERICA, 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-96-851-5-BO) Argued: June 5, 1998 Decided: October 22, 1998 Delgado's second claim, that summary judgment was inappropriate until discovery was complete, is without merit. Delgado relies on Fed. R. Civ. P. 56(f) arguing: Fed. R. Civ. P. 56(e)'s requirement that the party opposing a summary judgment motion set forth specific facts showing that there is a genuine issue for trial "[i]s qualified by Rule 56(f)'s provision that summary judgment be refused where the non-moving party has not had the opportunity to dis- cover information that is essential to his opposition." Appellant's Br. at 10 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). 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 sum- mary 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). Delgado has not made this court aware of any claims she might have against Prudential, 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). ------------------- ORLANDO D. BARNES, Lieutenant Colonel, #1209, Individually and in his official capacity, Prince George's County Police Department, Chief, Bureau of Administration; LINDA DIXON, Captain, #887, Individually and in her official capacity, Prince George's County Police Department Inspection Services, Defendants. ------------------------------------------------+ Appeal from the United States District Court for the District of Maryland, at Greenbelt . Deborah K. Chasanow, District Judge . (CA-01-1221-CA ) Submitted: October 29, 2002 Decided: November 18, 2002 Morrow claims that the district court abused its discretion in denying his request for additional discovery, pursuant to Fed. R. Civ. P. 56(f), prior to its entry of summary judg- ment. Finding no reversible error, we affirm. 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 state- ments 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). ------------------------- File Name: 04a0219p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Willie Jefferson, v. Chattanooga Publishing Company, We review the district court’s grant of summary judgment de novo. See Gribcheck v. Runyon, 245 F.3d 547, 550 (6 th Cir. 2001). We also review the district court’s denial of Jefferson’s Federal Rule of Civil Procedure 60(b) motion de novo, because the court’s analysis involved interpretation and application of law. See Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 510 (6th Cir. 2001). Affirmation of both orders is appropriate if Jefferson failed to present evidence sufficient to create a dispute of material fact and Chattanooga Publishing is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). We similarly reject Jefferson’s third argument, because 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. ------------------------ IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA PATMONT MOTOR WERKS, Inc. Plaintiff v. GATEWAY MARINE, Inc., et al Defendant No. C 96-2703 TEH The Court fails to comprehend how Rule 56(e) helps Patmont. Patmont is correct that Rule 56(e) allows the court to "permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." But nothing in that authorizes Patmont to file supplementary materials at any time it chooses. To the contrary, Rule 56(e) unambiguously defines a nonmoving party's burden in its "response" to a summary judgment motion, and it provides that " [i]f the [nonmoving] party does not so respond, summary judgment . . . shall be entered against the adverse party." FED. R. CIV. PROC. 56(e). Patmont's response-- i. e., its opposition-- was filed on October 1 and included the affidavits of Gabriel Patmont and Steven Patmont. Rule 56(e) entitles Patrnont to the Court's consideration of those affidavits, but nothing more. Nor does Rule 56(f) help Patmont. That provision affords trial courts the discretion to postpone summary judgment proceedings where the opposing party demonstrates, for [PAGE 4] 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). ---------------------- UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ NO. 93-3556 _______________ GARY L. PASTORE, an individual; NATIONAL SECURITY SYSTEMS CORPORATION, a Pennsylvania corporation, Appellants v. THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, a Pennsylvania corporation; BELL ATLANTIC CORPORATION, a Delaware corporation; RONALD DONALDSON, ROBERT S. FADZEN, JR.; RAYMOND J. WICKLINE; GEORGE CALDWELL Additional Discovery Throughout their brief, plaintiffs argue that summary judgment was inappropriate because they did not have adequate time for discovery. As this court has previously noted, we review a claim that the district court has prematurely granted summary judgment for abuse of discretion. See Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir. 1989). If a party believes that s/he needs additional time for discovery, Fed. R. Civ. P. 56(f) specifies the procedure to be followed,[fn3] and explicitly provides that the party must file an affidavit setting forth why the time is needed. Plaintiffs concede, however, that they did not submit an affidavit. This concession is usually fatal, because by not filing "a Rule 56(f) affidavit, [they have] not preserved [their] objection to [their] alleged inability to obtain necessary discovery." Falcone v. Columbia Pictures Indus., Inc., 805 F.2d 115, 117 n.2 (3d Cir. 1986). Plaintiffs contend that their brief opposing the defendants' motion for summary judgment constructively meets Rule 56(f)'s affidavit requirement. In the past we have rejected such arguments because "Rule 56(f) clearly requires that an affidavit be filed. 'The purpose of the affidavit is to ensure that the nonmoving party is invoking the protection of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition.' An unsworn memorandum opposing a party's motion for summary judgment is not an affidavit." Radich, 886 F.2d at 1394 (citations omitted).[fn4] Even if we were to regard the request in plaintiffs' brief opposing the defendants' motion for summary judgment that the court "belay [summary judgment] until a more complete factual record is developed," Plaintiff's Supplemental Memorandum of Law in Opposition to Motion for Summary Judgment, Docket No. 33 at 13, as the functional equivalent of a Rule 56(f) affidavit, see St. Surin v. Virgin Island Daily News, Inc., No. 93-7553, 1994 WL 131201 at *3 (3d Cir. Apr. 15, 1994), the district court did not err in considering defendants' motion for summary judgment because 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). Plaintiffs stated in their brief in the district court that a deposition of defendant Fadzen would demonstrate specific intent to monopolize. They claimed that Fadzen "may be a source of information not only as to specific intent but as to the product and the market as well, given his involvement with vendors and knowledge of software." Docket No. 33 at 12 n.11. Even assuming that plaintiffs were referring to the defendants' market power, the issue relevant here, it would be insufficient under Rule 56(f). Such an amorphous allegation fails to explain what plaintiffs expected to discover, how it applied to their case and why they could not obtain that information elsewhere. --------------------------- as quoted from IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SYNCOR INTERNATIONAL CORPORATION : CIVIL ACTION : v. : : CHETAN MODY and PINESTAR TECHNOLOGY, : INC. : NO. 98-6284 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). ------------------- UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT CAROLINA SECURITY AND FIRE INCORPORATED; CLIFTON REYNOLDS; DOTTIE REYNOLDS; HVAC CONSTRUCTION COMPANY, INCORPORATED; FRED L. HATFIELD; DOROTHY HATFIELD, Plaintiffs-Appellants, No. 97-1528 v. CONTROL SYSTEMS INTERNATIONAL, INCORPORATED, a Delaware corporation, Defendant-Appellee, UNITED STATES OF AMERICA, Movant. 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) Argued: April 10, 1998 Decided: July 21, 1998 A party opposing a properly supported motion for sum- mary 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 exis- tence 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 non- moving 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. -------------------