dissenting.
[¶ 24] I respectfully dissent. Although Rule 56(f), N.D.R.Civ.P., should be interpreted liberally, the majority interprets it in such a way that it is only the time that has passed between service of the answer and the motion for summary judgment that provides the test for a court’s abuse of discretion. In doing so, the majority ignores that Sehellpfeffer did not establish one of the elements required by Rule 56(f), and rewards his lack of diligence during the course of this litigation. I do not interpret our prior decisions on Rule 56(f) as creating such a time test and, therefore, I do not believe the trial court abused its discretion in denying further time for discovery.
[¶ 25] Rule 56(f) is intended to “provide an additional safeguard against the improvident or premature grant of summary judgment, and the rule generally has been applied to achieve that objective.” Luallin v. Koehler, 2002 ND 80, ¶ 29, 644 N.W.2d 591. In Aho v. Maragos, this Court rejected a strict interpretation of the rule posited by Justice Sandstrom. See generally, Aho v. Maragos, 1998 ND 107, 579 N.W.2d 165. We said:
Our primary concern under Rule 56(f) is to ensure that parties are given a full and fair opportunity to conduct necessary discovery before being required to meet a motion for summary judgment. Rule 56(f) is intended to safeguard against judges swinging the summary judgment axe too hastily. We will apply the rule to prevent a “rush to summary judgment” when a party has been denied a fair opportunity to conduct discovery.
Aho, 1998 ND 107, ¶7, 579 N.W.2d 165 (citations omitted). I believe the correct interpretation of Rule 56(f) requires the party opposing a motion for summary judgment to clearly state in his brief or affidavits that further discovery is necessary, what and why further discovery is necessary, and that a continuance is requested. The rule plainly states:
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.
N.D.R.Civ.P. 56(f). I believe the plain meaning of Rule 56(f) allows the trial court, once requested, to review the brief and affidavits of the non-moving party to decide if more time for discovery should be afforded. If it appears from this review that (1) the non-moving party cannot present essential facts that would justify his opposition to the motion for summary judgment; and, (2) the non-moving party *863states in his brief or affidavit reasons why he is not able to timely present such facts, a continuance generally should be given before summary judgment is granted. Although both prongs are preferably supported by affidavits, I would not penalize a party that establishes both prongs in either briefing or oral argument. See Johnson Farms v. McEnroe, 1997 ND 179, ¶ 29, 568 N.W.2d 920 (stating “[i]f the trial court’s reason for denying the request is because it was not made in affidavit form, that reason is not apparent from the decision and, in any event, would be a technical application of a rule that should be applied with a spirit of liberality”); see also Aho, 1998 ND 107, ¶ 6, 579 N.W.2d 165.
[¶ 26] However, a trial court’s failure to conduct this review will not be error if arguments invoking the rule, either specifically by name or by raising arguments that embody the spirit captured in the rule, are never raised. That is what I believe this Court meant when it said in BTA that “[t]he possibility that further discovery will yield evidence favorable to a party opposing summary judgment is not a ground to deny the motion when the party has failed to invoke N.D.R.Civ.P. 56(f).” BTA Oil Producers v. MDU Resources Group, 2002 ND 55, ¶ 52, 642 N.W.2d 873 (citing Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 11, 591 N.W.2d 101; American State Bank and Trust Co. v. Sorenson, 539 N.W.2d 59, 62 (N.D.1995); Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d 704, 708 (N.D.1995)).
[¶ 27] In Johnson Farms, the rule was explicitly raised in the non-moving party’s brief. 1997 ND 179, ¶ 28, 568 N.W.2d 920. In Aho, the spirit of the rule was invoked by the non-movant during a telephonic hearing on the summary judgment motion. 1998 ND 107, ¶ 3, 579 N.W.2d 165. In BTA, we held that the rule was not invoked and therefore the possibility that further discovery would yield favorable evidence was not a ground to reverse the trial court’s denial of the motion on appeal. 2002 ND 55, ¶ 52, 642 N.W.2d 873.
[¶ 28] I agree with the majority insofar as it rejects the requirement that Rule 56(f)’s invocation requires magic words be spoken. In this case, the words “Rule 56(f)” were never uttered in either the affidavits, briefs, or oral argument. See majority, at ¶ 16. Nevertheless, by making arguments that embodied Rule 56(f), at least in spirit if not in name, I believe Schellpfeffer sufficiently “invoked” the rule.
[¶ 29] However, I would affirm because I do not believe Schellpfeffer met the second prong of the Rule 56(f) test. I do not read the original 2004 affidavits or the arguments of counsel opposing the motion for summary judgment as providing reasons Schellpfeffer could not present the essential facts that would allow him to oppose the motion for summary judgment. Schellpfeffer’s arguments for continuance are presented in the majority opinion at ¶ 13. Nowhere does Schellpfeffer state a reason he has not been able to conduct discovery. In Hummel v. Mid Dakota Clinic, P.C., the Court was faced with whether the following comments sufficiently invoked Rule 56(f):
Duane Hummel has died, and cannot personally testify, but the affidavit demonstrates a basis to reasonably expect discovery to substantiate the plaintiffs position. His widow has the right to pursue discovery in the case, to verify from other admissible sources, what her husband was told on December 16, 1993.
526 N.W.2d 704, 708 (N.D.1995). In affirming the trial court’s granting of summary judgment, we held both that Rule 56(f) had not been properly invoked, and that the second prong of Rule 56(f), requiring a reason, had not been met:
We do not view these comments in the brief, considered along with the affida*864vits, as sufficient to invoke Rule 56(f). Rule 56(f) is not mentioned in either the brief or the affidavits, and nowhere are reasons stated why Mary Ann cannot present by affidavit any facts essential to justify her opposition to the motion. The trial court did not view these vague, isolated references to discovery as a Rule 56(f) request, and neither do we.
Id. As in Hummel, Schellpfeffer here fails to state why he could not present the essential facts. He only makes conclusory statements that more discovery is needed.
[¶ 30] In the absence of a reason, the majority implies a reason: there has not been enough time. See majority, at ¶ 15 (stating “in light of the short time between the beginning of the lawsuit and the summary judgment motion, additional discovery is needed before summary judgment can be appropriate”). It is true we have held that an insufficient amount of time is, in appropriate cases, a sufficient reason to grant a continuance under Rule 56(f). E.g., Aho, 1998 ND 107, ¶8, 579 N.W.2d 165. We have also held that lack of time for discovery is not a sufficient reason for a continuance. E.g., Luallin v. Koehler, 2002 ND 80, ¶ 30, 644 N.W.2d 591. Because the circumstances in each case are different, we review the trial court’s determination of whether a continuance shoúld be granted with a deferential standard, abuse of discretion. Id. at ¶ 29. Here, this Court both provides the reason and substitutes its own discretion for that of the trial court.
[¶ 31] It is necessary to review facts omitted in the majority opinion in order to establish that Schellpfeffer had enough time to conduct discovery. On March 5, 2004, the summons and complaint were served upon The R & D Group and received by Volk. On March 8, 2004, the summons and complaint were served upon Schellpfeffer at his home. Because no answer was timely served, Choice Financial was forced to file a motion for default judgment with the trial court on April 19, 2004. An answer was filed with the trial court on May 10. The affidavit of service for the answer does not state the date the answer was transmitted by facsimile transmission, but it was notarized May 7, 2004. On May 13, 2004, a motion for summary judgment was served on Schellpfeffer by Choice Financial. Schellpfeffer’s response was served on June 15, 2004, again late. Discovery, including interrogatories and requests for admission, was served on Schellpfeffer on March 24, 2004. Again Schellpfeffer did not timely respond, finally serving responses on May 7, 2004. On remand from this Court, the trial court noted in its June 30, 2005, memorandum opinion and order that Schellpfeffer still had not come forward “with any personal affidavit or other evidence suggesting he had a real defense” to the personal guaranty and, despite a year having passed, “there is nothing but counsel’s arguments and allegations in the proposed Second Amended Answer to suggest any possible reason why the '2004 summary judgment was not correct.” The trial court clearly believed Schellpfeffer’s late attempt to present new allegations in his answer was a dilatory pattern of conduct.
[¶ 32] I do not believe the trial court abused its discretion in deciding a fair opportunity for discovery was afforded Schellpfeffer, who had not been diligent at any point in this litigation.
[¶ 33] The majority, at ¶ 16, states, correctly, that we prefer affidavits accompany a Rule • 56(f) request for continuance. However, the majority, at ¶ 17, then ignores its own reasoning why we have such a preference: “From the court’s perspective, affidavits deter the parties from engaging in dilatory tactics or other bad faith strategies.”
The district courts have a duty under Rule 56(f) to ensure that the parties *865have been given a reasonable opportunity to make their record complete before ruling on a motion for summary judgment. To this end, it has been said that Rule 56(f) should be liberally construed. On the other hand, a party seeking a Rule 56(f) continuance is generally required to demonstrate due diligence both in pursuing discovery before the summary judgment motion is made and in pursuing the extension of time after the motion is made.
11 James Wm. Moore, Moore’s Federal Practice ¶ 56.10(8)(a) (1997) (emphasis added).
[¶ 34] The majority ignores that there is no evidence in the record that Schellp-feffer conducted any discovery prior to the hearing on the motion for summary judgment, a hearing held fourteen weeks after the lawsuit was commenced. The majority does not discuss that it took eight weeks for Schellpfeffer to file an answer and, even then, the answer was not served until three weeks after a motion for default judgment had been made by Choice Financial. The majority neglects that Schellp-feffer’s response to the motion for summary judgment was late. The majority ignores that Schellpfeffer did not answer discovery requests made upon him in a timely manner. The majority ignores that, on remand, Schellpfeffer still failed to present any affidavits setting forth the representations he claimed were fraudulent and the discovery he felt necessary. There is a complete void of due diligence on Sehellpfeffer’s part. Yet, the majority gives Schellpfeffer extraordinary leniency. In holding as it does, it is difficult to not come to the conclusion this Court will now reward dilatory tactics when a request is made for further discovery invoking Rule 56(f).
[¶ 35] I agree with the majority that Rule 56(f), N.D.R.Civ.P., should be applied to uphold its purpose of providing “an additional safeguard against an improvident or premature grant of summary judgment,” that “technical rulings have no place under the subdivision and that it should be applied with a spirit of liberality.” See Johnson Farms v. McEnroe, 1997 ND 179, ¶27, 568 N.W.2d 920. I agree that the invoking of Rule 56(f) does not require the recitation of magic words. I cannot agree, however, that the trial court, in this case, abused its discretion by denying Schellpfeffer additional time for discovery.
[¶ 36] I would affirm.
[¶ 37] Mary Muehlen Maring