Opinion
No. CIV S-03-1820 LKK KJM P.
January 17, 2008
ORDER
Plaintiff has filed his second and third request for an extension of time to file and serve an opposition to defendant Rohlfing's November 30, 2007 motion for summary judgment. Good cause appearing, the request will be granted.
Plaintiff has also filed several requests for an extension of time to file and serve an opposition to the motion for summary judgment and statement of undisputed facts filed by defendants J. Boitano, D.J. Brown, T. Cobb, J. Cox, R Dreith, J. Eder, T. Felker, B Fleming, K. McCraw, D. McGuire, S. Platt, D. Vanderville, R Wong, M. Wright, R. Miranda, S. Armoskus and K. Kopec. Good cause appearing, these requests will be granted.
Finally, on January 2 and January 9, 2008 plaintiff filed motions to reopen discovery in order to secure documents necessary to oppose summary judgment. Defendants have opposed these motions.
Rule 56(f) of the Federal Rules of Civil Procedure permits a court to deny or continue determination of a motion for summary judgment "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 Ninth Circuit has held:
References in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f). Rule 56(f) requires affidavits setting forth the particular facts expected from the movant's discovery. Failure to comply with the requirements of Rule 56(f) is a proper ground for denying discovery and proceeding to summary judgment.
Further, the movant cannot complain if it fails to pursue discovery diligently before summary judgment.Brae Transp., Inc. v. Coopers Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Similarly, an implicit motion for more time to conduct discovery will not bar summary judgment. State of California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (pro se plaintiffs still must follow rules of procedure).
Although plaintiff suggests the need for more discovery in his motion, which he has signed under the penalty of perjury, he has not clearly described the material he seeks to develop nor suggested how the information will bolster his opposition to the motion for summary judgment. See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999). Accordingly, plaintiff's request for further discovery will be denied.
IT IS HEREBY ORDERED that:
1. Plaintiff's January 2 (Docket Nos. 198, 199 201) and January 9, 2008 (Docket Nos. 207 209) requests for extensions of time are granted.
2. Plaintiff is granted sixty days from the date of this order in which to file and serve an opposition to defendant Rohlfing's November 30, 2007 motion for summary judgment and the remaining defendants' November 30, 2007 motion for summary judgment and statement of undisputed facts. No further extensions of time will be granted.
3. Plaintiff's January 2 and January 9, 2008 requests (Docket Nos. 200 208) to reopen discovery are denied.