Ninth Circuit Upholds Denial of Continuance Notwithstanding Movant's Failure to Receive Several Deposition Transcripts

Per Tatum v. City and County of San Francisco, 441 F.3d 1090 (9th Cir. Apr. 03, 2006)

Finally, we turn to Tatum's claim that the district court erred by denying her request for a continuance pursuant to Federal Rule of Civil Procedure 56(f). We review a district court's order denying additional discovery for abuse of discretion. See United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir.2002). A party requesting a continuance pursuant to Rule 56(f) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment. SeeFed.R.Civ.P. 56(f).

Because Tatum did not satisfy the requirements of Rule 56(f), the district court did not abuse its discretion by denying her request for a continuance. See Kitsap, 314 F.3d at 1000 (“Failure to comply with [the requirements of Rule 56(f) ] is a proper ground for denying relief.”). Tatum's request for a continuance did not identify the specific facts that further discovery would have revealed or explain why those facts would have precluded summary judgment. In a declaration supporting Tatum's opposition, her counsel stated that he had not yet received transcripts of several witness' depositions, including those of Officer Torres, Officer Busalacchi, and a paramedic who treated Fullard. The declaration does not, however, refer to any specific fact in these depositions or explain why the information contained in them was “essential to justify [Tatum's] opposition.” Fed.R.Civ.P. 56(f). The declaration does not indicate that deferring the resolution of the defendants' motion for summary judgment until the depositions had been transcribed and filed would have allowed Tatum to produce evidence creating a genuine issue of material fact as to whether any of the officers involved in Fullard's arrest used excessive force. The declaration does not explain how a continuance would have allowed Tatum to produce evidence creating a factual issue regarding probable cause. Absent a showing by Tatum that additional discovery would have revealed specific facts precluding summary judgment, the district court did not abuse its discretion by denying Tatum's request for a continuance under Rule 56(f).