The Federal Rules of Civil Procedure allow a nonmovant, when faced with a motion for summary judgment, to ask the court to defer ruling on the motion, to allow it additional time to take discovery. The process is straightforward: a nonmovant must show the court “by affidavit or declaration” the specified reasons that prevent it from presenting facts essential to justify its opposition. See FRCP 56(d) (Wisconsin has a similar requirement, modeled on the federal rule, see Wis. Stat. § 802.08(4)). The “affidavit or declaration” portion of the rule is not merely a suggestion, as failure to submit one justifies a district court’s denying the request to take additional discovery, and ultimately, granting summary judgment in the absence of additional facts. That lesson was recently learned by the plaintiff in Kallal v. CIBA Vision Corp., No. 13-1786 (7th Cir. Feb. 24, 2015). This Seventh Circuit decision should remind practitioners to comply strictly with Rule 56(d) when asking the court to defer ruling on a summary judgment motion.

Kallal was a products liability case in which the plaintiff sued contact lens manufacture CIBA, alleging that a defect in his contacts caused injury to his eyes. During the time period of plaintiff’s purchase, CIBA had identified a problem with some of its products and issued a recall of 11 million contact lenses. Plaintiff’s sole theory of liability was that that his lenses were subject to the recall and, therefore, that CIBA was liable for his eye pain.

In moving for summary judgment, CIBA showed that (1) the plaintiff only purchased CIBA lenses from one optical store; and (2) none of the lenses shipped to that store during the recall matched the plaintiff’s contact lens prescription. Thus, plaintiff could not show that his injuries stemmed from defective CIBA lenses, and not some altogether alternative reasons, such as an idiosyncratic reaction to contact lenses. The district court dismissed the case, labeling plaintiff’s evidence a mere “wisp of circumstantial evidence” that could not withstand CIBA’s summary judgment proof, since the mere fact that a person suffers pain when using a product does not, by itself, prove that the product is defective.

Plaintiff appealed, arguing in part that the district court had granted summary judgment on an incomplete record (by denying his request to take additional discovery), and that the 2010 Amendments to the Federal Rules eliminated the requirement of a formal affidavit for a motion under Rule 56(d). Not so, said the Seventh Circuit, noting that “[n]othing in Rule 56(d) or the commentary to that subsection . . . says any such thing.”