Opinion
99 C 5146
November 24, 2003
Plaintiff Booker Moore moves, pursuant to Federal Rule of Civil Procedure 56(f), to continue the hearing on Defendant City of Chicago's impending motion for summary judgment to permit him to depose Frederick B. Miller and Matthew L. Rodriguez, upon whose affidavits the City's motion is based. Rule 56(f) provides that:
"Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may . . . order a continuance to permit . . . depositions to be taken . . ."
While the court may grant a continuance of a summary judgment motion and allow time for the opposing party to take further depositions, the court need not do so when "the party's failure to obtain the needed materials is a result of the party's lack of diligence." Colby v. J.C. Penney Co., 128 F.R.D. 247, 249 (N.D. Ill. 1989) (citing Pfeil v. Rogers, 757 F.2d 850, 856-57 (7th Cir. 1985), Otto v. Variable Annuity Life Ins., 814 F.2d 1127, 1138 (7th Cir. 1987)).
Since this lawsuit was filed, on November 4, 1999, I have granted two of Moore's motions to extend discovery. The first extension was from the original cutoff date of January 7, 2003 to March 11, 2003 and the second extension was from March 11, 2003 to April 23, 2003. During the three months prior to the original January 7th deadline and during the four month extension (a total of seven months), Moore did not conduct any discovery. (Def. Reply P. 2).
Now, seven months after the close of discovery, Moore seeks to depose Frederick B. Miller and Matthew L. Rodriguez. In his affidavit, Moore asserts that he "cannot fairly respond to the impending motion for summary judgment without deposing Miller and Rodriguez." This may well be true but Moore is only in this position because of his failure to timely depose these potential witness, both of whom he was aware of personally and who were disclosed to him through discovery. Moore should have been aware of their significance as Miller was Moore's immediate supervisor and Rodriguez was the Superintendent of Police. Moore, himself, sent letters to both Miller and Rodriguez setting forth his concern that his transfer was racially motivated, which shows that Moore believed Miller and Rodriguez had information relevant to his transfer. Additionally, many of the documents produced by the City contained references to Miller and Rodriguez. One such document even included, almost word for word, Miller's assertion that Moore was the lowest ranking sergeant in his unit. (Def. Rely P.4).
Moore's failure to obtain depositions from Miller and Rodriguez (witnesses he knew to be important) during the nearly three year discovery period resulted from his own lack of diligence. Therefore, Moore's Rule 56(f) motion is denied.
For the reasons stated above, Moore's Rule 56(f) Motion to continue the hearing on the City's Motion for Summary Judgment to permit Moore to depose Frederick R. Miller and Matthew L. Rodriguez is DENIED.