Opinion
Case No: 2:02 CV 511 TC
September 24, 2003
ORDER DENYING PLAINTIFF'S RULE 56(f) MOTION
The magistrate judge has been referred Plaintiffs Rule 56(f) motion, seeking permission to conduct more discovery.
Plaintiffs Rule 56(f) Motion, docket no 24, filed July 28, 2003.
Counsel held a planning meeting on December 16, 2002, resulting in an agreed discovery cut-off date of May 30, 2003 and a dispositive motion cut-off date of June 30, 2003. The Scheduling Order incorporated those dates. Plaintiff did not depose any individuals before the discovery cut-off date and only a month before the discovery deadline, Plaintiff sent interrogatories, requests for admissions, and requests for production of documents.
Docket no. 6, filed January 6, 2003.
Docket no. 8, filed January 10, 2003.
Defendant's Memorandum in Opposition to Plaintiffs Rule 56(f) Motion, docket no. 28, filed August 6, 2003, page 2.
Defendant filed a summary judgment motion June 26, 2003. Plaintiff, relying on Rule 56(f), Fed.R.Civ.P., moved that summary judgment be deferred and that she be permitted to conduct discovery. Plaintiff asserts that she has been without funds to pursue discovery and has now obtained funds.
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 make such other order as is just.
Plaintiffs Memorandum in Support of Motion for Summary Judgment, docket no. 25, filed July 28, 2003, pages 2-3.
This is not a case where summary judgment was filed early in the action, prior to a reasonable time being allowed to complete discovery. The motion was filed well after the discovery deadline had already passed.
Plaintiffs submissions fail to specify how any deposition would aid her in rebutting Defendant's statement of material facts. While the affidavit of Plaintiffs counsel proposes to schedule approximately 10-15 depositions of "essential witnesses," the affidavit does not specifically identify the witnesses nor precisely state what testimony would be anticipated nor explain how that testimony could rebut the material presented in the pending summary judgment motion. Lewis v. City of Ft. Collins, 903 F.2d 752 (10th Cir. 1990) set clear standards for Rule 56(f) motions. Such a motion must clearly state how specific proposed discovery would aid in rebutting or refuting the material facts in the pending motion for summary judgment. Generalized statements that with depositions the party seeking discovery "will be able to show" certain facts making summary judgment improper are insufficient to invoke Rule 56(f). In Lewis, a similar 56(f) motion which failed to identify specific results of proposed discovery was denied and that denial was affirmed.
The affidavit (docket no. 26, filed July 28, 2003, paragraph 5) has one rather ambiguous statement on this subject:
Affiant represents that, among other things, the testimonials of deposed witnesses will establish that Defendant's hiring official(s) was/were aware of Plaintiff s discrimination charges filed against Defendant's predecessor employer . . . and/or opposed [opposition to?] the discriminatory practices of the Defendant's predecessor [employer] and, for this reason, was/were influenced against the selection of Plaintiff for employment with the Defendant, because of or related to the fact of Plaintiffs protected status under Title VII of the 1964 Civil Rights Act, as amended.
Plaintiff here has failed in her briefer affidavits in response to defendants motion for summary judgment to demonstrate how discovery will raise a genuine fact issue. . . . Within the affidavit itself, plaintiff repeatedly asserts that she "will be able to show" certain facts relative to her claims of discriminatory animus on the part of [Defendants]. These inspecific [sic] references are simply insufficient to meet Rule 56(f) muster. . . . Plaintiff has not attempted to particularize her request for discovery. She has not explained how any specific documents or depositions will aid in rebutting defendants' [asserted facts].
Lewis, 903 F.2d at 758-759.
Furthermore, if the party filing the Rule 56(f) affidavit has been dilatory . . . no extension will be granted. Plaintiff has failed to provide information sufficient to support relief under Rule 56(f) and Plaintiff has been dilatory.
Patty Precision v. Brown Sharpe Mfg. Co., 742 F.2d 1260, 1264-1265 (10th Cir. 1984) citing Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir. 1981).
IT IS HEREBY ORDERED that the Plaintiffs Rule 56(f) motion is DENIED.
Docket no. 24, filed July 28, 2003.