Opinion
CIVIL ACTION NO. 01-0527.
April 22, 2002
MINUTE ENTRY
Before the Court are (1) Plaintiffs Unopposed Motion for Continuance of the trial date; (2) Plaintiffs Motion for Continuance of the hearing on Defendants Motion to Dismiss for lack of subject matter jurisdiction, or for Summary Judgment; and (3) Motion for Expedited Hearing on Plaintiffs Motion for Continuance of the hearing on Defendants Motion to Dismiss for lack of subject matter jurisdiction, or for Summary Judgment.
As to Plaintiffs Unopposed Motion for Continuance of the trial date, the Motion is granted as unopposed.
As to Plaintiffs Motion for Continuance of the hearing on Defendants Motion to Dismiss for lack of subject matter jurisdiction, or for Summary Judgment, when moving for a continuance under Federal Rule of Civil Procedure 56(f), the nonmovant must present "specific facts explaining its inability to make a substantive response as required by Rule 56(e) and specifically demonstrat[e] how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (internal quotations omitted). "The nonmovant may not simply rely on vague assertions that discovery will produce needed, but unspecified, facts, particularly when ample time and opportunities for discovery have already lapsed." SEC v. Recile, 10 F.3d 1093, 1098 (5th Cir. 1993) (internal quotations and citations omitted).
Rule 56(f) provides:
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 notes that Plaintiff has failed to strictly comply with the affidavit requirement of Rule 56(f). Nevertheless, Plaintiffs written motion here is sufficient to warrant its consideration. See Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) ("while a party's failure to comply with Rule 56(f) procedure does not preclude consideration of the motion, some equivalent statement, preferably in writing or at least at the hearing of the motion, is expected").
Rule 56(e) provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Plaintiffs showing suffices. Plaintiff represents that she has been unable to depose one individual because the parties have not agreed on a particular date for the deposition, a claim Defendant does not specifically deny. Furthermore, Plaintiff states, and Defendant does not deny beyond general assertions that Plaintiff has had adequate time for discovery, that she has been unable to obtain affidavits from several potential witnesses. Furthermore, Plaintiff represents that extensive discovery is needed to learn how the government's "inner workings," which the Court takes to mean its policies and procedures, bear on the basis of the government's motion at issue here, whether the alleged tortfeasor was acting in the course and scope of his employment. Given that this issue is particularly fact-intensive, see Baumeister v. Plunkett, 95-2270 (La. 5/21/96), 673 So.2d 994, 996-97 (setting forth course-and-scope factors), Plaintiffs showing is sufficiently specific to justify a continuance under Rule 56(f).
The Court notes that the discovery Plaintiff seeks was necessitated by the government's failure to timely amend its Answer to assert the defense, see infra, upon which the government's motion at issue here is based and that only Rule 15(a)'s liberal approach to amendment of pleadings salvaged this defense. See Rec. Doc. 21.
Accordingly,
IT IS ORDERED that:
(1) Plaintiffs Unopposed Motion for Continuance of the trial date is hereby GRANTED as unopposed;
(2) Plaintiffs Motion for Continuance of the hearing on Defendant's Motion to Dismiss for lack of subject matter jurisdiction, or for Summary Judgment is hereby GRANTED; and
(3) Plaintiffs Motion for Expedited Hearing on Plaintiffs Motion for Continuance of the hearing on Defendant's Motion to Dismiss for lack of subject matter jurisdiction, or for Summary Judgment is hereby DISMISSED as MOOT.