Opinion
Civil Action No. 3:03-CV-0277-D
September 3, 2003
ORDER
Plaintiff Sami Thompson ("Thompson") moves for a 90-day continuance of the deadline by which she must respond to defendants' June 16, 2003 motion for partial summary judgment. She maintains that to respond to the motion, she needs discovery concerning whether the policy at issue is part of an ERISA plan. Defendants oppose the motion, contending the plan in question is an ERISA plan and that the discovery she seeks is irrelevant. The court grants the motion as follows.
Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001-1461.
Defendants also contend that she cannot obtain a continuance on the basis that she may later challenge the court's subject matter jurisdiction. The court need not address this argument because it is granting a continuance under Fed.R.Civ.P. 56(f), not based on Thompson's assertion that the court lacks subject matter jurisdiction.
The Civil Justice Expense and Delay Reduction Plan adopted by this court provides that "[e]ach judge will continue to give priority to the monitoring and resolution of pending motions." Plan at § XI(2) ( reprinted in Texas Rules of Court: Federal at 282 (West Pamp. Supp. 2003)). To eliminate undue delay and unnecessary expense to the parties to this and other civil actions pending on the court's docket, and because the court has determined that the motion is suitable for resolution in this manner, the court is deciding this motion by order rather than by a more detailed memorandum opinion.
Although Thompson styles her motion as one "for abatement and extension of time," see P. Mot. at 2, she essentially seeks a continuance under Fed.R.Civ.P. 56(f). Rule 56(f) authorizes a continuance of a nonmovant's obligation to respond to a motion for summary judgment "[s]hould 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 Rule is an essential ingredient of the federal summary judgment scheme and provides a mechanism for dealing with the problem of premature summary judgment motions. Owens v. Estate of Erwin, 968 F. Supp. 320, 322 (N.D. Tex. 1997) (Fitzwater, J.). The continuance authorized by Rule 56(f) is a safe harbor built into the rules so that summary judgment is not granted prematurely. Union City Barge Line Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987). To comply with the Rule, the party opposing summary judgment must file the specified non-evidentiary affidavit explaining why she cannot oppose the summary judgment motion on the merits. Id. The party may not rely on vague assertions that additional discovery will produce needed, but unspecified, facts, id., but must instead identify a genuine issue of material fact that justifies the continuance pending further discovery, see Woods v. Federal Home Loan Bank Board, 826 F.2d 1400, 1415 (5th Cir. 1987). A party seeking a continuance of a motion for summary judgment must demonstrate why she needs additional discovery and how the additional discovery will create a genuine issue of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). She must show a genuine issue of material fact that requires postponement for discovery, see McCarty v. United States, 929 F.2d 1085, 1088 (5th Cir. 1991), and must present specific facts explaining her inability to make the substantive response required by Rule 56(e), see Solo Serve Corp. v. Westowne Associates, 929 F.2d 160, 167 n. 25 (5th Cir 1991). Having considered the grounds for Thompson's motion, the court concludes that a continuance of the duration granted today is warranted so that she can conduct discovery that will enable her to oppose partial summary judgment on the ground that the policy at issue is not part of an ERISA plan and that her claims are not preempted by ERISA.
Thompson does not cite Rule 56(f) in her motion. She does, however, submit a declaration of her counsel that comports with the non-evidentiary affidavit that the Rule requires.
Accordingly, the court grants Thompson's July 7, 2003 motion to abate summary judgment. Thompson must complete the discovery permitted by this order and file her response, brief, and appendix in opposition to defendants' June 16, 2003 motion for partial summary judgment no later than December 3, 2003.
SO ORDERED.