Opinion
Case No. 00-2275-JAR
March 7, 2003
ORDER GRANTING LEAVE TO SUPPLEMENT RESPONSE AND DENYING REQUEST FOR RELIEF PURSUANT TO RULE 56(f)
This is before the Court on Plaintiff's Request for Leave of the Court to Supplement Plaintiff's Response to Defendant's Motion for Summary Judgment on all Claims to Include an Affidavit in Support of Rule 56(f) (Doc. 138). Plaintiff seeks to supplement his response by adding an inadvertently omitted affidavit in support of the Rule 56(f) request that he made in his response. The Court will grant Plaintiff's motion and allow his supplementation. However, after reviewing the affidavit and pleadings, the Court finds that relief pursuant to Fed.R.Civ.P. 56(f) is not warranted in this case.
Plaintiffs seek a stay pursuant to Fed.R.Civ.P. 56(f), which gives the court discretion to deny a motion for summary judgment, or allow a party to stay its response to a summary judgment motion, or have additional time for discovery, if the party files an affidavit that states with specificity how "the desired time would enable [the nonmoving party] to meet its burden in opposing summary judgment." But, "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. . . ." Nor is an assertion "that the evidence supporting a [party's] allegation is in the hands of the [opposing party] . . ." a sufficient showing under Rule 56(f).
Rule 56(f) of the Federal Rules of Civil Procedure states:
(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.
Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir. 1993) (citations omitted).
Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986).
Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir. 1985) (quoting Patty Precision v. Brown Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984)).
Plaintiff claims that he is entitled to relief under Rule 56(f) because of Defendant's failure to comply with discovery requests and other violations by Defendant of Fed.R.Civ.P. 30 and 37. These issues have already been ruled on by the Magistrate Judge. Judge Waxse's August 14, 2002 Order held that Plaintiff's motion for an order compelling discovery was untimely, and Plaintiff failed to show good cause for allowing the motion to be filed out of time. Judge Waxse's September 4, 2002 Order denied Plaintiff's motion for extension of time to file a motion for reconsideration or motion for review, motion to stay the Court's Order of August 14, 2002, and motion for order compelling Plaintiff's former counsel to provide Plaintiff with an affidavit and certain "evidence." The Court held that Plaintiff failed to show good cause why the Court should grant either the extension of time or the stay.
Pursuant to Fed.R.Civ.P. 72(a), Plaintiff had 10 days after being served with the orders to object, and "a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made." Plaintiff filed the instant motion on January 30, 2003, seeking to reargue the issue disposed of by the Magistrate Judge's August 14, 2002 and September 4, 2002 Orders. The Court finds that Plaintiff's request pursuant to Fed.R.Civ.P. 56(f) must be denied. The Court will consider Defendant's motion for summary judgment based on the pleadings currently on file in this case.
IT IS THEREFORE ORDERED that Plaintiff's Request for Leave of the Court to Supplement Plaintiff's Response to Defendant's Motion for Summary Judgment on all Claims to Include an Affidavit in Support of Rule 56(f) (Doc. 138) is GRANTED.
IT IS FURTHER ORDERED THAT Plaintiff's request for relief pursuant to Fed.R.Civ.P. 56(f) shall be DENIED. The Court will consider Defendant Meredith Corporation's Motion for Summary Judgment based on the pleadings currently on file.
IT IS SO ORDERED.