United States Court of Appeals
For the First Circuit
No. 08-1868
MILTON MIR-YÉPEZ,
Plaintiff, Appellant,
v.
BANCO POPULAR DE PUERTO RICO ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille Vélez-Rivé, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.
Nicolás Nogueras Cartagena and Julio C. Alejandro Serrano on
brief for appellant.
Jaime E. Toro-Monserrate and Toro, Colón, Mullet, Rivera &
Sifre, P.S.C. on brief for appellees.
March 9, 2009
SELYA, Circuit Judge. This is an appeal in a civil
rights action. The plaintiff (appellant here) claims that the
defendants terminated his banking and credit card relationships for
discriminatory reasons. On December 13, 2007, the parties
consented to have the case heard and determined by a magistrate
judge. See 28 U.S.C. § 636(c). After a period of pretrial
discovery, the defendants moved for summary judgment.
The time for filing an opposition expired without any
such opposition appearing. Accordingly, the magistrate judge made
a notation on the docket deeming the summary judgment motion
"unopposed." Only thereafter did the plaintiff serve an untimely
motion seeking a continuance and leave to conduct further
discovery. See Fed. R. Civ. P. 56(f).
In a detailed order, entered on April 9, 2008, the
magistrate judge denied the untimely Rule 56(f) motion. Then the
magistrate judge, in a thoughtful opinion dated April 24, 2008,
granted the defendants' motion for summary judgment. The plaintiff
moved for reconsideration and, on May 16, 2008, the magistrate
judge denied that motion. This timely appeal followed.
We need not tarry. We consistently have espoused the
view that when a lower court accurately takes the measure of a
case, applies the correct legal rules, and articulates a convincing
rationale, "an appellate court should refrain from writing at
length to no other end than to hear its own words resonate."
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Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 220 (1st
Cir. 1996); accord, e.g., Cruz-Ramos v. P.R. Sun Oil Co., 202 F.3d
381, 383 (1st Cir. 2000); Holders Capital Corp. v. Cal. Union Ins.
Co. (In re San Juan Dupont Plaza Hotel Fire Litig.), 989 F.2d 36,
38 (1st Cir. 1993). The case at hand fits within the parameters of
that prescription; the magistrate judge's opinion is both closely
reasoned and clearly correct. Accordingly, unless there is some
other meritorious ground for appeal, we would uphold the entry of
summary judgment for essentially the reasons limned in that
opinion.
The plaintiff suggests one such ground: he argues that
the magistrate judge erred in denying his Rule 56(f) motion. That
issue was adverted to only fleetingly in the magistrate judge's
opinion; her reasoning was contained in a separate (earlier) order.
We must, therefore, examine the contents of that order as well.
We begin with the standard of review: "a district court's
denial of a Rule 56(f) motion is reviewed on appeal solely for
abuse of discretion." Rivera-Torres v. Rey-Hernández, 502 F.3d 7,
10 (1st Cir. 2007). There was no abuse of discretion here.
Writing at length about the plaintiff's Rule 56(f) motion
would serve no useful purpose. As we said in Rivera-Torres, "the
prophylaxis of Rule 56(f) is not available merely for the asking."
Id. Thus, one
who seeks to invoke the rule must act with due
diligence . . . [and] . . . must submit to the
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trial court an affidavit or other
authoritative document showing (i) good cause
for his inability to have discovered or
marshalled the necessary facts earlier in the
proceedings; (ii) a plausible basis for
believing that additional facts probably exist
and can be retrieved within a reasonable time;
and (iii) an explanation of how those facts,
if collected, will suffice to defeat the
pending summary judgment motion.
Id. The instant motion cannot survive scrutiny under this test.
To begin, the plaintiff failed to exercise due diligence.
His Rule 56(f) motion, filed after the expiration of the time for
opposing the summary judgment motion had elapsed and after the
magistrate judge had deemed that motion unopposed, was too late.
See D.P.R.R. 7.1(b). To cinch matters, the motion, which the
magistrate judge understandably termed "a subterfuge," was
unaccompanied by any affidavit and manifestly insufficient to
satisfy the Rivera-Torres benchmarks or to engage the gears of Rule
56(f).
We need go no further. Having read the briefs with care
and canvassed the record in its entirety, we find the magistrate
judge's handling of this matter to be fully supportable.
Consequently, we summarily affirm the judgment below. See 1st Cir.
Loc. R. 27.0(c).
Affirmed.
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