Free Order - District Court of Arizona - Arizona

SRM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lorenzo Cruz Falco, Plaintiff -vsCharles Ryan, et al., Defendant(s) CV-03-1940-PHX-EHC (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Plaintiff's Motion to Stay Motion for Summary Judgment, filed August 9, 2005 (#56). Plaintiff seeks to stay consideration of Defendants' cross Motion for Summary Judgment (#53) on the basis that Plaintiff has been having difficulty obtaining discovery from Defendants. Defendants have not responded to the motion. In the meantime, the parties engaged in a discovery conference on August 17, 2005, and Plaintiff was given until September 23, 2005 to file a motion to compel on the disputed issues addressed. Plaintiff has not filed a motion to compel. Now, Plaintiff has filed his Response to the Motion for Summary Judgment. To the extent that Plaintiff intends this filing to be a motion to stay the proceedings on the dispositive motion, it does not comply with the Federal Rules of Civil Procedure. Rule 56(f) provides as follows: (f) When Affidavits are Unavailable. 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 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 Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919 (2nd Cir. 1985), the Second Circuit summarized the requirements for compliance with the rule: [W]e note that Rule 56(f) requires the opponent of a motion for summary judgment who claims to be unable to produce evidence in
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opposition to the motion to file an affidavit explaining: 1) the nature of the uncompleted discovery, i.e., what facts are sought and how they are to be obtained; and 2) how those facts are reasonably expected to create a genuine issue of material fact; and 3) what efforts the affiant has made to obtain those facts; and 4) why those efforts were unsuccessful. Id. at 926 (emphasis added). Plaintiff has not provided the required affidavit, does not identify the facts to be sought, and does not identify why any facts sought, which create a genuine issue of material fact, could not be presented by affidavit. Accordingly, this filing as a "motion to stay" is deficient. IT IS THEREFORE ORDERED that Plaintiff's Motion to Stay Motion for Summary Judgment, filed August 9, 2005 (#56) shall be STRICKEN.

DATED: October 4, 2005
S:\Drafts\OutBox\03-1940-56o Order 05 09 30 re MStayMSJ.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

Case 2:03-cv-01940-EHC-JRI

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