Opinion
Civil Action No. 3:02-CV-1461-D
February 12, 2004
ORDER
Defendant Indus International, Inc. ("Indus") moves for summary judgment. Plaintiff Biju Parakkavetty ("Parakkavetty") moves the court to continue consideration of the motion under Fed.R.Civ.P. 56(f). The court grants the motion as set forth below. In view of this ruling, the court also resets the trial of the case to the court's two-week trial docket of July 26, 2004.
I
The court must first decide whether Parakkavetty still requests a Rule 56(f) continuance. Indus maintains in its reply brief that he does not. It asserts that the continuance request was included with documents he filed September 19, 2003 that the court ordered unfiled, and that he did not renew the request when he re-filed his amended opposition brief. See D. Rep. Br. at 1 n. 1.
Although Parakkavetty filed a Rule 56(f) motion for continuance on September 19, 2003 and did not file a separate motion on October 3, 2003, when he filed his summary judgment response, he did include a Rule 56(f) continuance request in his October 3, 2003 summary judgment opposition brief. See P. Mem. at 4. This request is supported by an "affidavit in support of plaintiffs motion for continuance," see P. App. 1-3, that contains grounds similar to those set out in the September 19, 2003 continuance request. The court therefore concludes that Parakkavetty still requests a Rule 56(f) continuance.
Having considered Parakkavetty's continuance request, the court grants it. Rule 56(f) authorizes a continuance of a nonmovant's obligation to respond to a motion for summary judgment "[s]hould 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 Rule is an essential ingredient of the federal summary judgment scheme and provides a mechanism for dealing with the problem of premature summary judgment motions. Owens v. Estate of Erwin, 968 F. Supp. 320, 322 (N.D. Tex. 1997) (Fitzwater, J.). The continuance authorized by Rule 56(f) is a safe harbor built into the rules so that summary judgment is not granted prematurely. Union City Barge Line Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987). To comply with the Rule, the party opposing summary judgment must file the specified non-evidentiary affidavit, explaining why he cannot oppose the summary judgment motion on the merits. Id. The party may not rely on vague assertions that additional discovery will produce needed, but unspecified, facts, id., but must instead identify a genuine issue of material fact that justifies the continuance pending further discovery, see Woods v. Federal Home Loan Bank Board, 826 F.2d 1400, 1415 (5th Cir. 1987). A party seeking a continuance of a motion for summary judgment must demonstrate why he needs additional discovery and how the additional discovery will create a genuine issue of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). He must show a genuine issue of material fact that requires postponement for discovery, see McCarty v. United States, 929 F.2d 1085, 1088 (5th Cir. 1991), and must present specific facts explaining his inability to make the substantive response required by Rule 56(e), see Solo Serve Corp. v. Westowne Associates, 929 F.2d 160, 167 n. 25 (5th Cir 1991). The court has reviewed Parakkavetty's request with the required deference and concluded he has met his burden. Accordingly, the court grants him until March 31, 2004 to obtain the additional discovery necessary to oppose Indus' motion. No later than April 16, 2004, he must file a supplemental summary judgment response brief and supplemental appendix, both of which must comply with the local civil rules. No later than May 3, 2004, Indus must file its final reply brief.
II
In view of the court's order and its desire to decide Indus' summary judgment motion before this case is reached for trial, it is necessary to reset the trial date. Accordingly, the court resets this case to the July 26, 2004 two-week trial docket (subject to its January 20, 2004 order, in which it indicated that it "will take into account the necessity of accommodating out-of-country witnesses and the advisability of providing the parties sufficient advance notice to allow them to reduce travel expenses and inconvenience to their witnesses.").