Brooks v. Zoltek Corporation

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________

m 99-10570 Summary Calendar _______________

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 determined that this opinion should not be published Plaintiffs sued in April 1990.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.

AFFIRMED.