Radich v. Goode

HUTCHINSON, Circuit Judge,

concurring in the judgment.

I believe the appellants adequately preserved their objection that the district court entered summary judgment prematurely. They informed the district court that there was outstanding discovery directed to the appellees’ alleged policy to arrest for defiant trespass those engaged in protest activities on the parking lot of the Northeast Women’s Center (Center). This policy, however, could only be objectionable if the condition banning protestors from the parking lot was unlawful. Since there was no claim that the discovery was relevant to the openness of the property or any other factor that might bear on the lawfulness of the condition, the district court could have reached the validity of the condition despite the outstanding discovery.

On the merits, I agree with the majority that because there is no clear precedent on the issue, the appellees cannot be held to a duty of predicting whether the Pennsylvania courts will conclude that the condition is unlawful. The arrests were therefore on probable cause and were not violative of federal law. Since the appellants have not pursued their claim under 42 U.S.C.A. § 1985 (West 1981), and since I do not understand them to argue that the defiant trespass statute was selectively enforced, I concur in the judgment.

I.

The majority holds that because the appellants did not submit an affidavit, they have not preserved their objection to the timing of summary judgment. Although Federal Rule of Civil Procedure 56(f) instructs a party who believes that summary judgment should be deferred to file an affidavit, we have not applied this rule woodenly. Especially in light of the unique procedural posture of this case, I would hold that the statements in appellants’ memorandum in opposition to the motion for summary judgment constituted sufficient compliance with Rule 56(f).

In Sames v. Gable, 732 F.2d 49 (3d Cir.1984), the defendants, who had earlier sought an order limiting the scope of plaintiffs’ written interrogatories, moved for summary judgment. The plaintiffs informed the district court in their opposing memorandum that the parties were engaged in extensive discovery and argued that the defendants should not be permitted to short-circuit discovery simply by denying that they acted for illicit reasons. Id. at 50. Four days after the plaintiffs filed their memorandum, the district court denied the defendants’ motion to limit discovery. Two weeks later, while the plaintiffs’ interrogatories remained unanswered, the court dismissed some claims and granted the defendants summary judgment on the rest.

We vacated the district court’s order. We first noted that where facts are in the possession of the moving party, a continuance of a motion for summary judgment routinely should be granted. Id. at 51. Although the plaintiffs had not submitted a Rule 56(f) affidavit and had not identified specific outstanding discovery requests essential to their case, we held that “[their] failings [were not] sufficiently egregious to warrant a non-merits resolution of their claims.” Id. at 52 n. 3. In reaching this conclusion, we noted that the district court was aware of the outstanding discovery:

In this case, the district court granted summary judgment in spite of the fact that plaintiffs’ interrogatories remained unanswered by defendants. Indeed, the court had denied defendants’ motion to limit the scope of those very discovery requests barely more than two weeks prior to the entry of judgment. Plain*1400tiffs had alerted the court in their opposing memorandum that discovery was still underway.

Id. at 51-52.

The appellants here also informed the district court that discovery requests remained unanswered. In addition, they noted that further discovery was planned, pointing to an agreement among counsel in eleven related actions in the district court to depose various municipal defendants at the same time. Appendix (App.) at 131a. Similarly, the evidence of any policy was primarily, if not entirely, within the appel-lees’ control. While there was no discovery motion that separately highlighted the fact that the interrogatories remained unanswered, I do not believe this distinction to be controlling given the procedural posture of this case.

Considering the expedited handling of this matter, the district court did not need its attention focused on the possibility that discovery might be incomplete. The court issued a scheduling order dated February 17, 1988 that was entered on February 18, 1988. Id. at 2a. It required interrogatories to be filed within five days of the date of the order, with responses due ten days thereafter. It also set a discovery deadline of March 22, 1988 and a trial date of March 24, 1988. Against this backdrop, the district court should have been sensitive to any indication that summary judgment was premature. It was readily apparent that discovery was unlikely to be sufficiently advanced to permit summary judgment by March 9, 1988, the date the appellants filed their memorandum in opposition to the summary judgment motion. The memorandum informed the court that the appellees had not provided necessary discovery and that the appellants planned to conduct depositions. Any function a discovery motion might serve in alerting the district court to outstanding discovery, and thereby to the inappropriateness of summary judgment, was unnecessary here; given its February 18 scheduling order, the district court should have known that the appellees’ summary judgment motion, which was dated February 19 and filed February 22, was likely to be premature.

Indeed, the appellants had no real opportunity to file a motion to compel answers to their interrogatories before their responsive memorandum was due. Under the counting procedures of Federal Rule of Civil Procedure 6, interrogatories were to be filed no later than February 24. Responses would then have been due by March 9. The appellants’ memorandum in opposition to the motion for summary judgment was filed on March 9, the day before it was due. See E.D.Pa.R. 20(c).1

As the majority observes, the appellants did not reassert any additional need for discovery in the supplemental memorandum they submitted on July 6. Majority Opinion, ante, at 1394. The majority finds this significant because “four months had elapsed since they first claimed that interrogatories were unanswered.” Id. In terms of time relevant for this litigation, however, far less time had passed. The case was apparently suspended for two and one-half months of this period. Id. at 1393. Since the appellants had no obligation to respond to outstanding discovery during the time the case was suspended, only six weeks that mattered actually elapsed.

Arguably, the supplemental memorandum was also an improper place to advance the fact that the interrogatories remained unanswered. When the district court reactivated the case on June 15, it directed the parties to “update the research in their respective summary judgment motion and response if necessary.” App. at 37a (emphasis added). I do not deny that a careful litigant might have reminded the district court of the outstanding discovery. I would not, however, fault the appellants for following the terms of the district *1401court’s order by limiting their supplemental memorandum to an update of their research.

Of course, the appellants could have filed a motion to compel answers to the interrogatories between the submission of their original memorandum and their supplemental memorandum. Likewise, they could have filed such a motion prior to the court’s September 6 order granting summary judgment. Although this would have reminded the court that discovery was outstanding, I do not believe that the motion was required to preserve the objection. If the appellants had filed a Rule 56(f) affidavit, the district court could have considered the lack of a subsequent motion to compel in determining if summary judgment was premature, but the court would still have been required to exercise its discretion as to whether to defer ruling on the summary judgment motions. Since at the time they were made the appellants’ statements were an adequate substitute for a Rule 56(f) affidavit, the district court had the same continuing obligation to exercise its discretion.

I therefore believe that under Gable the appellants’ failure to file an affidavit is not fatal to their claim that summary judgment was entered prematurely. I turn then to the cases upon which the majority relies in reaching the contrary result. Although each is cited for the proposition that an affidavit is necessary, none provides precedent as persuasive as Gable.

In Galgay v. Gil-Pre Corp., 864 F.2d 1018 (3d Cir.1988), the appellants first raised the argument that more discovery was needed in the court of appeals. While we stated that the correct procedure would have been to file a Rule 56(f) affidavit, we had no occasion to consider what might be an adequate substitute. Similarly, Wisniewski v. Johns-Manville Corp., 812 F.2d 81 (3d Cir.1987) offers little guidance. We merely observed that because the appellants had filed a Rule 56(f) affidavit, they had preserved the objection.

In Falcone v. Columbia Pictures Indus., 805 F.2d 115 (3d Cir.1986), a magistrate stayed certain discovery requests by Falcone and later held that the appellee was not required to answer additional discovery requests pending the outcome of its summary judgment motion. We rejected Falcone’s claim that the district court erred in granting summary judgment without affording him an opportunity for discovery because he had not filed a Rule 56(f) affidavit. There was no indication, however, that Falcone had argued to the district court that the discovery was necessary before summary judgment could be entered. Moreover, summary judgment was granted because Falcone had not shown sufficient reliance on his employer’s promise, evidence that presumably was within Fal-cone’s control.

In Mid-South Grizzlies v. National Football League, 720 F.2d 772 (3d Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984), the appellants did not file a Rule 56(f) affidavit. They also did not argue in their memorandum in opposition that summary judgment should be deferred, raising the issue for the first time in their reply memorandum. We noted that most courts have held that an affidavit is necessary to preserve the objection and that the appellants had not taken this step. 720 F.2d at 780 n. 4. Then, treating the statements in the reply brief as an affidavit, we concluded that most of the outstanding discovery was irrelevant and that appellants’ Rule 56(f) showing was too speculative to require a continuance. Id. at 780. Accordingly, we held:

Considering the already large record compiled prior to its consideration of the summary judgment record, the absence of a Rule 56(f) affidavit, the irrelevance of most of the pending discovery requests, and the conjectural nature of the Grizzlies’ contentions as to the possibility of establishment of actual or potential competition in any arguably relevant market, we conclude that the court did not err in considering the motion for summary judgment on the present record.

Id. at 781. Mid-South Grizzlies thus relied upon several factors in finding that the district court had not erred in entertaining *1402the summary judgment motion. It did not present as squarely as Gable did the question of whether the failure to file an affidavit should be excused.2

Finally, the majority relies upon Dowling v. City of Philadelphia, 855 F.2d 136 (3d Cir.1988), another civil rights action seeking redress for allegedly illegal arrests of protestors at the Center. The city sought summary judgment and simultaneously requested a protective order staying depositions except as to facts relevant to the summary judgment motion. Dowling responded to the motion for a protective order by arguing that she needed discovery regarding the city’s policy of arresting antiabortion protestors and by stating that the short discovery period had required her to use depositions rather than written interrogatories. The district court granted summary judgment without ruling on the motion for the protective order.

We affirmed, noting that Dowling had not filed a Rule 56(f) affidavit “and therefore, as a procedural matter alone, she has failed to comply with the rule.” Id. at 140. Significantly, we concluded that the motion for a protective order did not deprive Dowl-ing of the opportunity to obtain evidence relevant to her response to the summary judgment motion — by its terms, the motion for a protective order was limited to facts not relevant to the summary judgment inquiry. Moreover, “[h]ad Dowling believed that the depositions she sought were essential to her case, she could have somehow brought that fact to the attention of the district court by, for example, filing a motion to compel.” Id. Dowling also failed to file interrogatories, to seek discovery from the other defendants, to submit her own affidavit or those of other protestors, or to move for an extension of the discovery deadline.3 We therefore held:

In view of the limits of the terms of the protective order motion, of Dowling’s failure to pursue available discovery avenues, and of her failure to comply with Rule 56(f), we conclude that the district court acted within the permissible bounds of its discretion when it ruled on the City's summary judgment motion on the record before it.

Id. at 141.

In many respects, Dowling presented facts similar to those at issue here. The district court in Dowling gave the parties less than two months from the date of the pretrial conference to complete discovery. The city moved for summary judgment within one month of the conference. As Judge Seitz noted in dissent, Dowling also mentioned in her opposition to the summary judgment motion that the city had not provided discovery: “ ‘As of this writing, Defendant, City of Philadelphia has not provided one iota of discovery that was requested by the plaintiff. There are material issues of fact that only a fact finder can decide.’ ” Id. at 143 (Seitz, J., dissenting) (quoting Dowling’s memorandum in opposition to the motion for summary judgment).

Nevertheless, there are important differences between the two cases. While both involved abbreviated discovery timetables, the scheduling order in this ease gave the appellants only half the time for discovery as their counterpart had in Dowling. Moreover, here the discovery timetable virtually precluded the appellants from filing a motion to compel before their memorandum in opposition to the summary judgment motion was due. Cf. id. at 140 (Dowling had opportunity to alert district court to outstanding discovery by filing a motion to compel). The district court did not need to have its attention focused on *1403the possibility that summary judgment might have been premature when the motion was filed four days after the scheduling order was entered. Where a month has transpired between the entry of the scheduling order and the summary judgment motion, as in Dowling, it is more reasonable to require a party to make a more conspicuous showing by, for example, filing a motion to compel.4

In addition, in her memorandum opposing the summary judgment motion Dowling only stated that the city had not provided discovery. The district court could not have determined whether this was discovery to which the city had objected, which by the terms of the motion for a protective order was unnecessary to the summary judgment motion, or whether the discovery was essential to resist summary judgment. Here, however, there was no indication that the unanswered interrogatories might not be relevant to the summary judgment inquiry. Rather, the appellants informed the district court that discovery was outstanding and the issue to which it was related.

Finally, unlike Dowling, there is no indication here that the appellants were less than diligent in pursuing discovery. Indeed, they filed interrogatories within the five days permitted by the scheduling order and apparently arranged to depose the ap-pellees. The appellants also supported their response to the summary judgment motion with an affidavit and transcripts of related proceedings in state court.

Accordingly, I believe that Gable offers a more compelling precedent on our facts than Dowling or any of the other cases cited by the majority. See also Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir.1989) (although plaintiffs failed to file Rule 56(f) affidavit, argument that summary judgment should not have been entered while discovery remained outstanding was at least facially troubling in light of Gable; not relying on absence of affidavit in affirming entry of summary judgment). The absence of an affidavit alone should not preclude the appellants from arguing that summary judgment was premature.

I turn next to the claim that the appellants’ statements were deficient because they did not state “the content of the unanswered interrogatories [or] ‘what particular information is sought, [and] how, if uncovered, it would preclude summary judgment.’ ” Majority Opinion, at 1394 (quoting Dowling, 855 F.2d at 140). The appellants informed the district court that the summary judgment motion was premature because interrogatories remained unanswered, App. at 131a, and that “[a]s was referred to earlier in this brief, all of the facts are not in yet with reference to the policy underlying the decision of the police department to arrest plaintiffs.” Id. at 133a-34a. The quoted passage identifies the nature of the evidence the appellants hoped to elicit. Considering the early stage of the litigation, I believe this was adequate compliance with Rule 56(f).

When the parties have had the opportunity to conduct discovery, an insistence that one claiming a need for additional discovery specify the information he seeks and how it would preclude summary judgment is a sensible requirement. The party is able to target specific areas of inquiry based on the discovery he has already conducted and to explain why prior discovery was insufficient. It is unreasonable, however, to demand a detailed explanation of the evidence the appellants in this case hoped to discover. The appellants had no real opportunity to conduct discovery and, in terms of specifying how the desired evidence would preclude summary judgment, could do little more than state that it was relevant to one of their theories of recovery. Cf. J.E. Mamiye & Sons v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J. concurring) (timing of summary judgment motions very important in light of recent Supreme Court decisions; quite *1404likely that plaintiff would have insufficient evidence to raise triable issue on every element when complaint filed, but we would not want to end case until plaintiff has opportunity to develop facts). While they could have informed the district court of the specific information sought in the interrogatories, I do not think their failure to do so amounts to a waiver of their objection to the timing of summary judgment. See Gable, 732 F.2d at 52 n. 3 (even though appellants did not identify specific outstanding discovery requests essential to their case, “[their] failings [were not] sufficiently egregious to warrant a non-merits resolution of their claims”).

II.

Although I believe the appellants adequately preserved their objection, I nevertheless agree that the district court’s order should be affirmed. The appellants did not assert in the district court that the unanswered interrogatories were relevant to the affirmative defense, nor do they make such an argument in this Court. The district court could therefore have reached the issue of the validity of the condition that protestors be banned from the parking lot. Although the district court did not in fact reach this issue, the majority correctly concludes, given our standard of review, that we can decide it. In that connection, I must agree with the majority that, on these facts, the appellees cannot be held to a duty to predict whether the Pennsylvania courts would hold that the condition imposed on access to the parking lot were lawful. Since the affirmative defense issue is dispositive, I concur in the judgment.

A policy of arresting protestors at the Center would not ordinarily violate federal law and be subject to redress under 42 U.S.C.A. § 1983, so long as the arrests were made on probable cause. In this case, an inquiry into whether the police officers and city officials reasonably believed that the affirmative defense did not apply is also necessary if the speech protective purposes of the defiant trespass statute are to be preserved. The appellants presented evidence, consisting of an affidavit and excerpts from state court proceedings, that indicates the character of the parking lot at issue. As the majority ably demonstrates, however, Pennsylvania law is far from clear that banning protestors on the type of parking lot shown by the appellants’ evidence is an unlawful condition.5 I therefore agree with the majority that on this record the appellees cannot be held to have violated any of the appellants’ federal rights.

Finally, I emphasize that the appellants have argued that the arrests were violative of § 1983 only because the Pennsylvania statute’s affirmative defense to the crime of defiant trespass gave them the right to protest on the parking lot. They have not pursued their claim under § 1985. Similarly, although they indicate that the city’s arrest policy was motivated by a hostility to their views in opposition to abortion, they do not argue in this appeal that the appellees have selectively enforced the defiant trespass statute. Any such challenge to the arrest policy would, of course, be based on the contention that the appellees had violated the appellants’ rights to equal protection of the laws secured by the Fourteenth Amendment. See e.g., Wayte v. United States, 470 U.S. 598, 608 & n. 10, 105 S.Ct. 1524, 1531 & n. 10, 84 L.Ed.2d 547 (1985) (prosecution cannot be deliberately based on arbitrary or improper classification; petitioner must show discriminatory effect and, unless prosecution is based on overtly discriminatory classification, discriminatory purpose); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978) (so long as probable cause exists, decision whether to prosecute generally rests in prosecutor’s discretion and “ ‘the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation’ so long as ‘the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ ”) *1405(brackets in original) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962)); Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886) (where licenses permitting use of wooden laundries were discrimi-natorily denied to persons of Chinese descent, conviction for violating ordinance overturned); United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir.1989) (per curiam) (to prove selective prosecution, one must show similarly situated persons have not been prosecuted and decision to prosecute made on basis of unjustifiable standard or to prevent exercise of fundamental right); Government of the Virgin Islands v. Harrington, 791 F.2d 34, 36 (3d Cir.1986) (same); United States v. Torquato, 602 F.2d 564, 568 (3d Cir.) (prosecution may not be based on arbitrary or irrational factors), cert. denied, 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307 (1979). That constitutional right is not asserted in this appeal, nor have appellants argued that the outstanding discovery was relevant to that issue.

III.

For the foregoing reasons, I concur in the judgment of the court.

. The appellees’ memorandum was served by mail on February 19. Pursuant to Eastern District of Pennsylvania Rule 20(c), the appellants had ten days in which to file a response. Since weekends and holidays are not counted in calculating this period, see Fed.R.Civ.P. 6(a), and since Washington’s Birthday was observed on February 22, the ten days expired on March 7. An additional three days are added to the period because the appellees served their memorandum by mail. See Fed.R.Civ.P. 6(e).

. To the extent the affidavit requirement is designed to ensure that district courts are alerted to the contention that summary judgment is premature, this purpose was served in Mid-South Grizzlies. The district court addressed the contention that summary judgment should be deferred. 720 F.2d at 779.

. At oral argument in this Court, Dowling’s attorney explained that she did not put evidence in the record because she did not believe the city's summary judgment motion could be granted and that she " 'didn't feel that [she] needed any [discovery] in response to the motion for summary judgment.’ ’’ Dowling, 855 F.2d at 140 n. 3 (brackets in original) (quoting statement by Dowling’s attorney at oral argument).

. Defining when a district court should be attuned to the possibility that summary judgment is inappropriate is not always an easy task. On these facts, however, the district court should certainly have been sensitive to this possibility.

. Although appellants suggest that they were arrested for their mere presence on the parking lot, they admitted in their complaint that they were pursuing their protest activities while on that property. App. at 6a; Majority Opinion, at 1393.