PERKS v. CITY OF SPRINGFIELD, (C.D.Ill. 1999)

BYRON G. CUDMORE, UNITED STATES MAGISTRATE JUDGE

This cause comes before the Court on the Responses to the Court's Order for Plaintiff to Comply with Federal Rule of Civil Procedure 56(f).

This removed case involves claims by Plaintiff that Defendant City of Springfield deprived him of his free speech rights guaranteed by the United States Constitution and the Constitution of the State of Illinois. On September 16, 1999 Defendant moved for summary judgment on Count I of the Complaint. On September 22, 1999, Plaintiff requested and received an extension to October 6, 1999 to respond to the motion. Subsequently, during a conference call on October 6, 1999, Plaintiff sought and obtained leave to file his Second Amended Complaint instanter. At that same conference, Defendant requested and received permission to adopt its summary judgment motion filed on September 16, 1999, as to the Second Amended Complaint. Plaintiff again orally sought more time to conduct discovery, and the Court directed Plaintiff's Counsel to comply with Rule 56(f) by October 20, 1999. The Court explicitly directed Plaintiff to discuss the type of discovery needed and the appropriate limits on the requested discovery.

When a party cannot present facts that justify his opposition to a motion for summary judgment, Rule 56(f) requires that he comes forward with an explanation for the inability. Chambers v. American Trans Air, Inc. 17 F.3d 998, 1002 (7^th Cir. 1994). This explanation must be made by affidavit. Id. The party requesting additional time to respond must present valid reasons for the lack of proof and must show how he can rebut the defendant's evidence if the ruling on the motion is postponed. Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1138 (7^th Cir. 1987) (citing Gieringer v. Silverman, 731 F.2d 1272, 1280 (7th Cir. 1984); Korf v. Ball State University, 726 F.2d 1222, 1230 (7th Cir. 1984)). In addition, "[a] party who has been dilatory in discovery may not use Rule 56(f) to gain a continuance where he has made only vague assertions that further discovery would develop genuine issues of material fact." United States v. Bob Stoffer Oldsmobile-Cadillac, Inc. 766 F.2d 1147, 1153 (7^th Cir. 1985) (citing Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th Cir.) and Waldron v. Cities Service Co., 361 F.2d 671 (2d Cir. 1966)).

Here, there are many obvious deficiencies with Plaintiff's "Response" to the Court's explicit order to comply with Rule 56(f). First, no affidavit has been submitted, and instead a document titled "Response to Defendant's Position on the Issue of Discovery in Advance of the Rule 16 Conference" was filed. In addition, Plaintiff has not identified any specific facts that he needs to obtain in order to respond. Instead, Plaintiff vaguely refers to the need for four depositions of unnamed public officials, without specifying the type or extent of relevant information these depositions might reveal. Further, Plaintiff has not offered any explanation for his alleged inability to contest the facts in Defendant's motion. In his original motion for more time to respond, Plaintiff's attorney requested additional time because he had "several other matters pending in his office." Not even this weak excuse is offered in the Response to the Court's explicit directive to comply with Rule 56(f). In light of the Court's clear instructions, the woefully inadequate effort to comply with Rule 56(f) is more than a little surprising.

Though content, form and context are important, the content of speech is the most important factor used to determine whether speech is Constitutionally protected. See Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994). The content, form and context should be fairly easy to obtain in this case, since the circumstances are set out fairly clearly in the Complaint itself. In addition, the Court notes that Plaintiff himself has already been deposed in this case, so it is difficult to ascertain the need for much additional discovery on the issue of the content of the speech. Similarly, the context and form of the speech were explored during Plaintiff's deposition, as shown by the memorandum in support of Defendant's motion for summary judgment. The Court is left to speculate as to how the depositions of four unnamed officials might shed light on the critical inquiries in this case.

Because Plaintiff has utterly failed to comply with any of the requirements of Rule 56(f), no additional time to conduct discovery will be allowed. Thus, the Plaintiff shall file, on or before November 29, 1999, his response to the motion for summary judgment that was adopted by Defendant on October 6, 1999.