Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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 Timothy Lee Ward, Plaintiff -vsKarr, et al., Defendants CV-03-2159-PHX-ROS (JRI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Plaintiff's Motion to Refuse Judgment Under Rule 56(f), filed April 21, 2008 (#140). Plaintiff seeks an order pursuant to Rule 56(f), Federal Rules of Civil Procedure, precluding a grant of or staying consideration of Defendants' Motion for Summary Judgment. Plaintiff argues that he has outstanding discovery requests, in particular requests for production of documents, which are "of vital importance to Plaintiff's case." (#140 at 2.) He further argues that the motion was filed before the scheduled deadline for dispositive motions. Defendants have responded (#146), arguing that Plaintiff has failed to submit an affidavit as required by Rule 56(f), and that Defendants were simultaneously serving responses to Plaintiff's requests for production of documents. Plaintiff has replied (#155), arguing that he believed his motion sufficed as an affidavit, that there remains the potential for a motion to compel on his discovery requests, and that he has recently served requests for admission To the extent that Plaintiff intends this filing to be a motion to stay the proceedings on the dispositive motion, it does not comply with the Federal Rules of Civil Procedure. Rule 56(f) provides as follows: (f) When Affidavits are Unavailable. If a party opposing the motion shows by affidavit that, for specific reasons, it cannot present facts essential to justify its opposition, the court may:
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Case 2:03-cv-02159-ROS-JRI

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(1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order. In Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919 (2nd

4 Cir. 1985), the Second Circuit summarized the requirements for compliance with the rule: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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[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, and his motion does not suffice as an affidavit, having not been sworn to nor made under penalty of perjury. Nor does Plaintiff's motion identify the facts to be sought, or Plaintiff's efforts to obtain those facts, and does not identify why any facts sought, which create a genuine issue of material fact, could not be presented by affidavit. Instead, Plaintiff simply argues he has outstanding discovery requests. Accordingly, this filing as a "motion to stay" is deficient. Moreover, the deadline for dispositive motions sets the last, not the only, day such motions can be filed. IT IS THEREFORE ORDERED that Plaintiff's Motion to Refuse Judgment Under Rule 56(f), filed April 21, 2008 (#140) is DENIED WITHOUT PREJUDICE.

DATED: May 15, 2008
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_____________________________________ JAY R. IRWIN United States Magistrate Judge