Opinion
Civil Action No. 2:04cv489-T.
March 1, 2005
George H. Shelby, for Plaintiff, represented by Jason Bryon Tingle, John D. Saxon, PC, Birmingham, AL, John D. Saxon, John D. Saxon, PC, Birmingham, AL, Stephanie S. Woodard, Arendall Associates, Birmingham, AL, Stephen Jared Austin, John D. Saxon, PC, Birmingham, AL.
American Colloid Company, Inc., for Defendant represented by Kathryn Montgomery Moran, Lord Bissell Brook LLP, Chicago, IL, Kevin David Kelly, Lord Bissell Brook LLP, Chicago, IL, Robert F. Northcutt, Capell Howard PC, Montgomery, AL, Constance S. Barker, Capell Howard PC, Montgomery, AL.
ORDER
It is ORDERED that plaintiff George H. Shelby's motion to conduct limited discovery pursuant to Fed.R.Civ.P. 56(f) (doc. no. 29) is denied.
In denying this motion, the court offers these comments: Rule 56(f) states:
"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."
Therefore, a party who seeks the application of this rule must "state by affidavit the reasons why he is unable to present the necessary opposing material." 10B Wright, Miller Kane, Federal Practice and Procedure § 2740 (3d ed. 1998). See also Barfield v. Brierton, 883 F.2d 923, 931 (11th Cir. 1989) ("A party requesting a continuance under this rule must present an affidavit containing specific facts."). Shelby "`may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts,' but rather he must specifically demonstrate `how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.'" Wallace v. Brownell Pontiac-GMC Co., Inc., 703 F.2d 525, 527 (11th Cir. 1983) (quoting SEC v. Spence Green Chem. Co., 612 F.2d 896, 901 (1980)).
No such affidavit or detailed explanation has been presented in this case. Instead, Shelby's counsel explains in her motion that her client's previous attorney withdrew from the case days before the discovery cut-off, and that the deposition of the decision-maker has not yet been taken in this case.
Yet "rule 56(f) is infused with a spirit of liberality,"Wallace, 703 F.2d at 527, and the court may be willing to overlook certain technical deficiencies if Shelby presented compelling reasons for deposing the decision-maker.
Shelby fails, however, to present such reasons. As demonstrated in a summary-judgment opinion entered today, his disparate-treatment and retaliation claims under 42 U.S.C.A. § 1981 have failed because there is no evidence of an adverse-employment action, and his hostile-work-environment claim fell on his inability to provide evidence suggesting that defendant American Colloid Company, Inc.'s allegedly hostile conduct affected a term or condition of employment. It would seem that Shelby, himself, is in the best position to present evidence of any adverse-employment actions suffered by him or hostile conduct that has affected his employment. The decision-maker's testimony may help to demonstrate, for example, that American Colloid's actions were based on race or that certain of American Colloid's assertions were pretextual; but the plaintiff, himself, is most able to testify concerning his own professional troubles at American Colloid. The record already includes Shelby's 261-page deposition, and Shelby has failed to convince the court that another deposition would enable him to rebut American Colloid's motion for summary judgment.