Monday, November 14, 2005

Fifth Circuit Denies Request for Discovery under Rule 56(f)

Last week the Fifth Circuit in Baker v. American Airlines, Inc., --- F.3d ----, 2005 WL 3005487 (5th Cir. Nov. 09, 2005), upheld the denial of a request under Rule 56(f) for further discovery in order to respond to a summary judgment motion. In doing so, the court affirmed that a specific showing that additional evidence creating a genuine issue of fact would be discovered is required:

For a party to mandate relief under Rule 56(f), the party must show "both why it is currently unable to present evidence creating a genuine issue of fact and how a continuance would enable the party to present such evidence. The ... party may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts in opposition to summary judgment." Baker argues that the extension would not be oppressive or disruptive to the trial process, but she has not made the required showing under Rule 56(f) to merit the requested relief. Moreover, another criteria for relief under Rule 56(f) is that the movant must have exercised due diligence in discovery. Again, Baker's actions justify denial of the requested relief. Baker did not initiate discovery until the last days of the allotted time. By that time, any responses were not required until after the summary judgment briefing schedule was completed. Baker knew (or should have known) the briefing schedule and the discovery period. Nevertheless, she failed to act diligently in the pursuit of evidence. Her problem is one of her own making; Rule 56(f) precludes appellate relief in this situation. [citations omitted]


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