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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10712
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00283-ELR
ANTIONETTE SMEDLEY,
Plaintiff-Appellant,
versus
DEUTSCHE BANK TRUST COMPANY AMERICAS,
MCCURDY & CANDLER, LLC,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 18, 2017)
Before TJOFLAT, MARCUS and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Antionette Smedley, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of Deutsche Bank Trust Company America
(“Deutsche”) and McCurdy & Candler, LLC (“M&C”). On appeal, Smedley
argues that the district court erred in denying her Fed. R. Civ. P. 56(d) motion. As
a result, she should participate in discovery. Smedley also claims that the district
court should have converted M&C’s motion to dismiss as a summary judgment
motion.
We review the denial of a Fed. R. Civ. P. 56(d) motion for an abuse of
discretion. Fla. Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1315
(11th Cir. 1990) (interpreting Rule 56(d)’s predecessor, Rule 56(f)). As a general
rule, appellate courts “will not consider a legal issue or theory raised for the first
time on appeal.” Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004). Under Rule 56(d), where the non-moving party to a motion for
summary judgment shows “by affidavit or declaration” that, for specified reasons,
it “cannot present facts essential to justify its opposition,” the district court may
delay consideration of the motion, deny the motion, allow additional time for
discovery, or issue another appropriate order. Fed. R. Civ. P. 56(d). In seeking
the protection of Rule 56(d), the non-movant must show that “postponement of a
ruling on the motion will enable [her], by discovery or other means, to rebut the
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movant’s showing of the absence of a genuine issue of fact.” Fla. Power & Light,
893 F.2d at 1316 (quotations omitted).
“[V]ague assertions that additional discovery will produce needed, but
unspecified facts” fail to meet this burden. Fla. Power & Light, 893 F.2d at 1316
(quotations omitted). Moreover, we will not overturn discovery rulings under Rule
56 unless the appellant can demonstrate that those rulings “resulted in substantial
harm to the appellant's case.” Iraola & CIA, S.A. v. Kimberly–Clark Corp., 325
F.3d 1274, 1286 (11th Cir. 2003).
A court is not required to await the completion of discovery before ruling on
a motion for summary judgment, so long as the parties have had an adequate
opportunity for discovery. Fla. Power & Light, 893 F.2d at 316. Additionally,
summary judgment may be appropriate when no discovery has been held.
Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989)
(discussing Rule 56(d)’s predecessor Rule 56(f)). In Reflectone, the appellant
chose to suspend its discovery efforts pending the resolution of a motion for a
protective order, and by the time the opposing party had moved for summary
judgment, it had not conducted discovery. Id. at 843. Moreover, the appellant
never alerted the district court that it did not have a sufficient opportunity to
conduct discovery. Id. at 844. The district court then granted summary judgment
prior to discovery; the plaintiff argued this was a per se violation of Rule 56(d)’s
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predecessor, rule 56(f). Id. In finding summary judgment proper, we stated that “a
court may grant summary judgment without parties having conducted discovery if .
. . the court has, in valid exercise of discretion, denied such a motion.” Id. at 844.
The district court did not abuse its discretion in denying Smedley’s Rule
56(d) request. First, Deutsche produced a valid notice of default as well as an
affidavit attesting to the validity of the notice. Therefore, the district court did not
err in finding that the evidence demonstrated the baselessness Smedley’s non-
TILA and non-RESPA claims. Reflectone, 862 F.2d at 844. Second, although
Smedley tendered two affidavits in an effort to comply with Rule 56(d), she only
denied receiving such a notice. She admitted she sought evidence—contrary to
sworn testimony—that such a notice “was never mailed.” Third, Smedley only
vaguely asserted that the Ocwen’s notice was manufactured, without specifying
additional facts supporting her allegation, or from where or whom she could
procure evidence to prove her allegations. Fla. Power & Light, 893 F.2d at 1316.
Fourth, regarding her TILA and RESPA claims, based on Deutsche’s alleged
failure to respond to her QWR, Smedley never alleged facts showing that it was a
loan servicer or evidence in the record demonstrating Deutsche was not her loan
servicer. Additionally, in her affidavits, Smedley failed to suggest how discovery
would uncover relevant evidence supporting those claims.
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Even if the district court did abuse its discretion, its ruling did not cause
“substantial harm to the appellant’s case.” Iraola & CIA, S.A., 325 F.3d at 1286.
Here, the magistrate judge deemed everything in Deutsche’s statement of material
facts admitted due to Smedley’s failure to properly controvert them. Smedley did
not challenge the facts before the district court or in her brief on appeal. The
magistrate judge and district court also analyzed each of Smedley’s eight claims at
length and explained why each failed. She does not dispute any of the court’s legal
conclusions on appeal. In light of these omissions, the district court ruling did not
impact or substantially harm her case.
Finally, Smedley’s “improper conversion” argument fails for two reasons.
First, she did not raise it before the district court, so she cannot do so for the first
time on appeal. Access Now, 385 F.3d 1331. Second, conversion occurs when a
court considers matters outside of the pleadings in a Fed. R. Civ. P. 12(b)(6)
motion to dismiss, and thereby “converts” that motion into a motion for summary
judgment. See Fed. R. Civ. P. 12(b)3; Trustmark Ins. Co. v. ESLU, Inc. 299 F.3d
1265, 1267 (11th Cir. 2002). Here, the motion ruled on by the district court was
for summary judgment, so conversion did not occur. Moreover, Smedley cites no
authority for the proposition that a document originally submitted in support of a
motion to dismiss—which is later denied—cannot be relied on, again, at the
summary judgment stage.
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Accordingly, the district court did not abuse its discretion in granting
Deutsche and M&C’s motion for summary judgment prior to discovery, and we
affirm.
AFFIRMED.
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