FRCP 56[f] Affidavits" More Liberally Read to Avoid SumJ

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FRCP 56[f] Affidavits" More Liberally Read to Avoid SumJ

Postby Administrator » Tue Sep 30, 2014 12:40 am

FRCP 56[f] Affidavits" More Liberally Read to Avoid Sum


Rule 56[f] affidavits receive liberal construction so as to permit additional discovery where it appears necessary. James J. O'Connor v. Trans Union Corp., No. 97-4633 [U.S.D.C. E.D. Pa. 5/11/98], [unpublished, but available on the internet], citing International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1267 [5th Cir. 1991] [requiring only statement of party's need for additional discovery], cert. denied, 502 U.S. 1059 [1992].


Slip Copy, 2005 WL 3262954 (N.D.Ohio)
United States District Court,
N.D. Ohio, Eastern Division.
John SCIRIA, Plaintiff,
HUNTINGTON BANK, et al., Defendants.
No. 1:05CV0533.
Dec. 1, 2005.


*1 This matter is before the Court on Defendant, Huntington National Bank's ("Huntington") Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF # 31), and Defendant, Equifax Information Services LLC's ("Equifax") Motion for Summary Judgment. (ECF # 30). Plaintiff, John Sciria, claims that he was injured because the Defendants misreported information on his credit report and in doing so, negligently and/or willfully violated the Fair Credit Reporting Act ("FCRA"). Defendants have both moved for summary judgment on the grounds that Mr. Sciria can present no evidence in support of his allegations. Mr. Sciria filed combined responses to both of these motions. For the reasons set forth below, Defendants' Motions for Summary Judgment are both GRANTED.

C. Plaintiff's Fed.R.Civ.P. 56(f) Motion for Additional Time and Discovery
*5 Plaintiff's "Brief in Opposition to Defendants Motion for Summary Judgment Motion to Strike" implicitly admits that his Brief in Opposition lacks evidentiary support for his claims. The Brief requests a thirty day continuance in order for Plaintiff to obtain rebuttal evidence. Mr. Sciria contends that evidence in support of his claims lies in the deposition transcripts. Although he does not specifically say so, presumably his request for more time means that he does not believe that he was able to access the deposition testimony prior to having to file his Brief in Opposition.
No additional time for discovery is warranted. Mr. Sciria had every opportunity to gather and identify evidence in support of his claim. The motions at issue were not filed until well after the expiration of the discovery period. Mr. Sciria has offered no reason why he was not able to obtain and review a copy of the deposition transcript before filing his Brief in Opposition. The deposition transcript appears to have been available to Mr. Sciria three weeks prior to the due date for his opposition. Further, the deposition at issue was Mr. Sciria's own testimony. Any information contained in the deposition that he wished to provide as evidence could have been submitted by way of a personal affidavit. Mr. Sciria's 56(f) motion for additional time and discovery is, therefore, denied.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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