Free Order on Motion for Extension of Time - District Court of Arizona - Arizona

SRM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andre Almond Dennison, Plaintiff -vsConrad Luna, et al., Defendant(s) CV-03-2373-PHX-SRB (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Plaintiff's Motion for Extension of Time, filed September 14, 2005 (#93). Plaintiff seeks an extension of the discovery and disclosure motion deadline, citing the intervening telephonic discovery conference with the Court as cause for the delay. Defendants have not responded to the motion. At the telephonic discovery conference, the Court granted Plaintiff an extension of time to file a motion to compel on the issues raised therein. Accordingly this motion is moot, and will be denied. Also under consideration are Plaintiff's Motion to Stay and Motion for Extension of Time, filed October 4, 2005 (#96). Defendants have not responded to this motion. Plaintiff seeks to extend the time for his response to Defendants' motion for summary judgment, and of the time for him to file his own dispositive motion. Plaintiff's request is based upon the incomplete discovery. However, incomplete discovery is not a bar to proceeding on dispositive motions. The rules on summary judgment do not mandate the presentation of all of a parties evidence, but are commonly resolved on the basis of affidavits in lieu of depositions or other admissible evidence. Rule 56(f) provides as follows: (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
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or discovery to be had or may make such other order as is just. In Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919 (2nd Cir. 1985), the Second Circuit summarized the requirements for compliance with the rule: [W]e note that Rule 56(f) requires the opponent of a motion for summary judgment who claims to be unable to produce evidence in opposition to the motion to file an affidavit explaining: 1) the nature of the uncompleted discovery, i.e., what facts are sought and how they are to be obtained; and 2) how those facts are reasonably expected to create a genuine issue of material fact; and 3) what efforts the affiant has made to obtain those facts; and 4) why those efforts were unsuccessful. Id. at 926 (emphasis added). Plaintiff has not provided the required affidavit, does not identify the specific facts to be sought, or Plaintiff's efforts to obtain those facts by other means, and does not identify why any facts sought, which create a genuine issue of material fact, could not be presented by affidavit. Accordingly, this filing as a "motion to stay" is deficient, and will be denied. Plaintiff's motion also requests to extend the deadline for Plaintiff to file his own dispositive motion. The Court's order filed July 26, 2005 (#76) reset the deadline for dispositive motions to August 31, 2005. Defendants timely filed a motion to extend (#87) that deadline until September 7, 2005. That motion was granted to the extent that Defendant's motion for summary judgment filed September 7, 2005 was deemed timely filed. (Order 9/29/5, #94.) Plaintiff's motion, dated September 29, 2005, and filed October 4, 2005, was filed long after the expiration of the scheduled deadline for filing dispositive motions, and long after the extended deadline sought by Defendants. Plaintiff's only basis for seeking the extension is incomplete discovery. As noted above, however, incomplete discovery is not a bar to filing dispositive motions. Rule 6(b), Federal Rules of Civil Procedure, requires that a motion to extend filed after the expiration of a deadline must be supported by a showing of excusable neglect. Plaintiff does not explain his neglect in seeking a timely extension. IT IS THEREFORE ORDERED that Plaintiff's Motion for Extension of Time, filed September 14, 2005 (#93) is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Extension of Time, filed
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October 4, 2005 (#96) is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Stay, filed October 4, 2005 (#96) is DENIED. DATED: October 24, 2005
S:\Drafts\OutBox\03-2373-93o Order 05 10 20 re MExtend MExtend MStay.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

Case 2:03-cv-02373-SRB

Document 97 - 3Filed 10/25/2005 -

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