Opinion
Case No. 2:01CV0474-DS
May 7, 2003
ORDER
Filed concurrently with this Order is the court's Memorandum Decision granting Southern Utah University's Motion for Summary Judgment. In view of the court's disposition of that matter, and for the additional reasons stated, the court makes the following disposition of the numerous and miscellaneous pending motions filed by the parties.
The following motions are deemed moot and DENIED in whole or in part as such.
Docket No. 52 — Plaintiff's Motion to Extend Time.
Docket No. 60 — Defendant's Motion for Sanctions.
Docket No. 72 — Plaintiff's Motion for Extension of Time.
Docket No. 108 — Plaintiff's Motion for Protective Order.
Docket No. 110 — Plaintiff's Motion for Protective Order.
Docket No. 111 — Defendant's Motion, in part, to Compel.
The following motions are GRANTED in whole or in part.
Docket No. 95 — Plaintiff's Motion to Extend Time to File Memorandom in Opposition to Defendant's Motion for Summary Judgment.
Docket No. 115 — That portion of Plaintiff's motion asking to Extend Time to Respond to Defendant's Motion to Strike Plaintiff's Declaration.
That portion of Plaintiff's Motion to Extend Time to Reply to Defendant's Reply ( Docket No. 115) is DENIED as not provided for in the applicable rules. See DUCiv. R. 56-1(b)
Defendant has orally informed the court that it wishes to withdraw that portion of its Motion requesting Sanctions for Plaintiff's Failure to Appear for a Deposition ( Docket No. 111). That Motion, therefore, is DISMISSED.
Plaintiff's Opposition to Defendant's Motion for Summary Judgment was due on February 26, 2003. plaintiff requested "a few more additional days to finish his Opposition". Thereafter, Plaintiff filed his Memorandum in Opposition on March 5, 2003. Plaintiff made requests for extension of time to oppose Summary Judgment on March 5, 2003, March 31, 2003, April 4, 2003, and April 15, 2003. Those portions of Plaintiff's various motions requesting extension of time to oppose Defendant's Motion for Summary Judgment ( Docket No.'s 971, 109, 115 and 121) are construed as filed pursuant to Fed.R.Civ.P. 56(f), and are DENIED. Rule 56(f) provides as follows:
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.
The court is guided by the following direction regarding Rule 56(f) motions.
"Unless dilatory or lacking in merit, the motion should be liberally treated." . . . A prerequisite to granting relief, however, is an affidavit furnished by the nonmovant. . . . Although the affidavit need not contain evidentiary facts, it must explain why facts precluding summary judgment cannot be presented. . . . This includes identifying the probable facts not available and what steps have been taken to obtain these facts. . . . In this circuit, the nonmovant also must explain "how additional time will enable him to rebut movant's allegations of no genuine issue of fact."Committee for the First Amendment v. Campbell, 962, F.2d 1517, 1522 (10th Cir. 1992) (citations omitted). Plaintiff failed to file the requisite Rule 56(f) affidavit that comports with the requirements of this circuit. In any event and without unduly belaboring the matter, it appears clear after examining Plaintiff's factual submissions, that he has failed to identify any disputed material facts which would preclude the court from granting Defendant's Motion for Summary Judgment.