When opposing summary judgment, particularly in the early stages of a case or before discovery is complete, attorneys should keep in mind the range of tools at their disposal – including Fed. R. Civ. P. 56(f), which provides for a continuance to conduct additional discovery. Under Rule 56(f), if a non-moving party cannot obtain an affidavit sufficient to support its opposition to summary judgment, it may instead file an affidavit stating why it was unable to do so. The First Circuit recently reaffirmed and tightened the legal standards for Rule 56(f) motions and affidavits in Rivera-Torres et al. v. Rey-Hernandez, et al., 2007 U.S. App. LEXIS 21292 (1st Cir., Sept. 6, 2007) (Selya, J.).

A court may grant a Rule 56(f) continuance to a party opposing summary judgment where discovery is incomplete, summary judgment is otherwise premature, or facts essential to the non-movant are in the exclusive control of the moving party. As the First Circuit noted, the rule is liberally applied: “When a party confronted by a motion for summary judgment legitimately needs additional time to marshal the facts necessary to mount an opposition, the rule provides a useful safety valve.”

The rule has limits, however. The First Circuit stressed that a litigant seeking to invoke Rule 56(f) must demonstrate to the court by affidavit that it deserves relief. The litigant must show: (i) plausible grounds for believing that additional facts exist and can be retrieved within a reasonable time, (ii) its efforts to obtain those facts and why they were unsuccessful, and (iii) how the facts sought are reasonably expected to create a material issue of fact. In Rivera-Torres, the First Circuit added a new requirement: (iv) the party seeking relief must also diligently conduct discovery before summary judgment is filed and seek timely extensions of time afterward.

The Rivera-Torres plaintiffs alleged political discrimination in the defendant state agency’s failure to renew their employment contracts. The case’s procedural history is extreme, although not entirely exceptional: after over two years of the plaintiffs’ missed deadlines and other inexcusable failures, the defendants filed for summary judgment. The plaintiffs requested multiple extensions of time to oppose summary judgment, and filed a Rule 56(f) motion for continuance. After ten months, they still had not filed an opposition. The district court denied the Rule 56(f) motion and granted summary judgment for the defendants. The plaintiffs appealed. The First Circuit found little merit to the appeal, but capitalized on the opportunity to address the plaintiffs’ attempt to invoke Rule 56(f).

The court held that the plaintiffs did not meet any of the 56(f) standards. “To begin, the plaintiffs’ Rule 56(f) motion failed to show good cause for their professed inability to conduct the desired discovery at an earlier date. The district court afforded the parties a reasonable interval for pretrial discovery – they had almost 18 months from the inception of the action – and, for aught that appears, the plaintiffs simply frittered the time away.…” The plaintiffs blamed the defendants’ uncooperative behavior, a third party’s refusal to produce a list of potential witnesses, their counsel’s poor health, and the fact that the case was transferred between judges. The only missing excuse, inferred from Judge Selya’s failure to mention it, was that their dog ate their draft opposition. In any event, the court was not persuaded. Among other shortcomings, it found that the plaintiffs had not proven that the additional information they requested even existed. “Even after the defendants moved for summary judgment, the plaintiffs dragged their feet: they lollygagged more than five months before filing their Rule 56(f) motion and announcing their professed need to depose the regional directors. That was too little and too late.…”

Despite the extreme circumstances in this case, the First Circuit’s opinion provides useful lessons for practitioners. The court’s decision was clearly guided by its perception that the plaintiffs did not diligently pursue their claims. Parties should, of course, thoroughly seek discovery during the available time periods. If an opposing party resists or fails to comply in a timely manner with its discovery obligations, counsel should promptly press for compliance, not wait until summary judgment motions are filed. While Rule 56(f) is available to oppose a particularly difficult or premature summary judgment motion, it should not be relied on to excuse dilatoriness or inaction. As the First Circuit reiterated, Rule 56(f) protects against courts “swinging the summary judgment axe too hastily,” but it also warned that “Rule 56(f) is meant to minister to the vigilant, not to those who sleep upon perceptible rights.”