Brooks v. Zoltek Corporation ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-10570
Summary Calendar
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MARY N. BROOKS,
Plaintiff-Appellant,
VERSUS
ZOLTEK CORPORATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(1:98-CV-67-C)
_________________________
December 7, 1999
Before SMITH, BARKSDALE, and motion for summary judgment. On March 8,
PARKER, Circuit Judges. Brooks filed a motion for continuance under
FED. R. CIV. P. 56(f), praying to be permitted
PER CURIAM:* until June 15, 1999, to respond to the motion
for summary judgment with appropriate
Mary Brooks was hired by Zoltek evidence. The motion was denied on March 9.
Corporation (“Zoltek”) on a probationary Brooks never responded to the summary
basis. Sixty days into her employment, she judgment motion, and on April 14, 1999, the
was released on grounds of excessive motion was granted.
absenteeism. She sued under title VII and 42
U.S.C. § 1981. Because Brooks provided no answer to the
motion for summary judgment, she provided,
Brooks filed her complaint on March 19, too, no evidence by which a genuine issue of
1998. Zoltek responded on August 5, 1998. material fact could be created. The sole
The district court issued its scheduling order question is whether the court erred in denying
on August 7, requiring that all motions, continuance until June 15, 1999, in which to
including summary judgment, be filed with collect evidence and file a response. We
supporting briefs on February 16, 1999, and review decisions regarding continuances for
that all discovery be completed by June 15, abuse of discretion. Liquid Drill, Inc. v. U.S.
1999. On February 12, 1999, Zoltek filed a Turnkey Exploration, Inc., 48 F.3d 927, 930
(5th Cir. 1995).
*
Pursuant to 5TH CIR. R. 47.5, the court has In Liquid Drill, we faced a similar inquiry.
determined that this opinion should not be published Plaintiffs sued in April 1990. In November
and is not precedent except under the limited 1990, the defendants moved for summary
circumstances set forth in 5TH CIR. R. 47.5.4.
judgment. In July 1991, the court granted Oftentimes, . . . the evidence which the
summary judgment. Plaintiffs appealed, nonmoving party could offer to create a
arguing in relevant part that the district court factual dispute is in the exclusive
had erred in denying their motion to extend possession of the moving party. Where
discovery. We affirmed, noting that by the the party opposing the summary
time the district court had ruled on the judgment informs the court that its
summary judgment motion, it “had been diligent efforts to obtain evidence from
pending for seven months, and ample time and the moving party have been
opportunity for discovery had already lapsed.” unsuccessful, a continuance of a motion
Id. for summary judgment for purposes of
discovery should be granted almost as a
Here, the court acted on the summary matter of course . . . . If, however, the
judgment motion only a little over two months nonmoving party has not diligently
after it was filed. Brooks, however, had pursued discovery of that evidence, the
thirteen months from the filing of her court need not accommodate the
complaint until summary judgment issued in nonmoving party’s belated request.
which to collect that modicum of evidence
necessary to avoid a summary judgment ruling. International Shortstop, Inc. v. Rally’s Inc.,
Moreover, she had been warned as of August 939 F.2d 1257, 1267 (5th Cir. 1991) (citations
7, 1998, when the district court issued its and quotations omitted; emphasis added).
scheduling order, that Zoltek would be filing a Such is the case here.
summary judgment motion, should it so
choose, no later than February 16, 1999, and
thus she had a full seven months in which to
prepare for the entry of such an order.
Brooks’s argument that the court should
have waited until the end of the period set for
discovery is without merit. The ten months
provided for undertaking discovery was the
time in which all discovery was to be
completed, not merely that minimum amount
necessary to avoid summary judgment.
In a case in which the summary judgment
non-movant had managed to undertake at least
a little discovery before the summary judgment
motion was filed, and who then argued that
“they were entitled to rely on the scheduling
order, which permitted discovery to continue
until May, 1991,” we explained that “Rule 56
does not require that any discovery take place
before summary judgment can be granted; . . .
that more time was scheduled for discovery
does not, by itself, defeat summary judgment.”
Leatherman v. Tarrant County Narcotics and
Intelligence Coordination Unit, 28 F.3d 1388,
1396 (5th Cir. 1994) (emphasis added).
Rather, to gain a continuance, a plaintiff must
satisfy rule 56(f). We have elsewhere
explained the criteria for gaining that
continuance.
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AFFIRMED.
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