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Merle v. First Tennessee Bank National Association

August 24, 2006

MERLE AND PAULA ABRAMS, ET AL., PLAINTIFFS,
v.
FIRST TENNESSEE BANK NATIONAL ASSOCIATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge

(Phillips/Guyton)

MEMORANDUM AND ORDER

This matter is before the Court, pursuant to referral [Doc. 388] from District Judge Thomas W. Phillips, for consideration of the plaintiffs' Rule 56(f) Motion [Doc. 381] and the plaintiffs' Motion To Compel [Doc. 382]. Both motions were filed on July 17, 2006.

The Court conducted a hearing on the said motions on August 14, 2006. Brent R. Watson was present for the plaintiffs. Melinda Meador was present for the First Tennessee defendants. Attorneys John Speer and Kathy Cloud participated by telephone.

For the reasons set forth below, both Motions [Docs. 381 and 382] are DENIED.

In their Rule 56 (f) Motion, the plaintiffs ask the Court to either deny the summary judgment motion filed by the First Tennessee Defendants, or alternatively, stay any ruling on the summary judgment motion "until the First Tennessee Defendants have fully responded to the discovery that has been asked of them" [Doc. 381]. The District Judge referred only that part of the motion which requests a stay, and accordingly, it is only the request for a stay which is addressed by this Memorandum and Order.

The plaintiffs' Motion To Compel [Doc. 382] addresses the written discovery which plaintiffs argue has not been answered by the First Tennessee Defendants. The parties agree that this Motion should be considered in conjunction with the Rule 56(f) motion.

The plaintiffs argue that the written discovery responses of the First Tennessee Defendants are evasive and incomplete, and therefore inadequate; that a large number of requests for admission were not answered properly; that answers to interrogatories asking for identification of documents failed to identify specific documents; that the First Tennessee Defendants objected to producing personnel files and payroll records; and that these discovery problems must be rectified before the Court considers the summary judgment motion.

In response, the First Tennessee Defendants argue that the plaintiff's Rule 56(f) Motion was not timely filed; that the plaintiffs have not diligently pursued the questioned discovery; that the information which the plaintiffs seek in the questioned discovery would not affect the ruling on the pending motion for summary judgment; and that the plaintiffs' Motion To Compel does not comply with the requirements of Rule 37 of the Federal Rules of Civil Procedure and Local Rule 37.2.

Rule 56(f) of the Federal Rules of Civil Procedure states: Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

In order to prevail on a Rule 56(f) motion, the First Circuit has said that the motion must:

(1) be made within a 'reasonable time' after the filing of a summary judgment motion; (2) place the district court on notice that movant wants the court to delay action on the summary judgment motion, whether or not the motion cites Rule 56(f); (3) demonstrate that movant has been diligent in conducting discovery, and show 'good cause' why the additional discovery was not previously practicable with reasonable diligence; (4) set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist, and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion; and (5) attest that the movant has personal knowledge of the recited grounds for the requested continuance.

Simas v. First Citizens Fed. Credit Union, 170 F.3d 37, 46 (1st Cir. 1999) (citing C.B. Trucking, Inc. v. Waste Mgmt., Inc., 137 F.3d 41, 44 n.2 (1st Cir. 1998)).

As noted by the plaintiffs, the Sixth Circuit has stated more broadly that the Rule 56(f) movant must file an affidavit that (1) details the discovery needed and (2) explains how it will help rebut the movant's showing of the absence of a genuine issue of material fact. See Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300, 305 (6th Cir. 2003). The Sixth Circuit has held that "the importance of complying ...


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