Opinion
Civil Action No. 3:02-CV-1645-D.
April 11, 2005
ORDER
After making an independent review of the pleadings, files, and records in this case, and the March 16, 2005 findings, conclusions, and recommendation of the magistrate judge, the court concludes that the findings and conclusions are correct. It is therefore ordered that the findings, conclusions, and recommendation of the magistrate judge are adopted, and defendant's February 1, 2005 motion for summary judgment is granted.
One argument set out in plaintiff's objections to the magistrate judge's findings, conclusions, and recommendation merits some discussion. Plaintiff maintains that summary judgment is premature because discovery is still ongoing. He also requests relief under Fed.R.Civ.P. 56(f). First, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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, 322-25 (1986). Plaintiff has not shown why he has not had adequate time for discovery during the period that has elapsed since he filed suit on August 2, 2002. Second, plaintiff failed to move for Rule 56(f) relief in his February 11, 2005 response to defendant's motion. Although he mentions Rule 56(f) in his objections, see Objs. ¶ 17 conclusion, he is doing so only after the magistrate judge filed his findings, conclusions, and recommendation, and he has not complied with the Rule. See, e.g., Union City Barge Line, Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987) (holding that to comply with Rule 56(f), party opposing summary judgment must file specified nonevidentiary affidavit explaining why he cannot oppose the summary judgment motion on the merits). Rule 56(f) requires the nonmovant to file a non-evidentiary affidavit explaining why he cannot oppose the motion for summary judgment. See Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 354 (5th Cir. 1989). The affidavit must justify the nonmovant's entitlement to a continuance by explaining "both why [he] is currently unable to present evidence creating a genuine issue of material fact and how a continuance would enable the party to present such evidence." Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 167 n. 25 (5th Cir. 1991); see also McCarty v. United States, 929 F.2d 1085, 1088 (5th Cir. 1991) (nonmovant must demonstrate how the additional time will enable him to rebut the movant's allegations of no genuine issue of fact).
Plaintiff filed objections on April 4 and 5, 2005. With one difference — the objections filed April 4 contain a handwritten date beneath plaintiff's signature block on the last page — the objections appear to be duplicates.
Accordingly, defendant's February 1, 2005 motion for summary judgment is granted, and the action against him is dismissed with prejudice by judgment filed today.
SO ORDERED.