                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-27-2005

Stein v. Westfield Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4617




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"Stein v. Westfield Ins Co" (2005). 2005 Decisions. Paper 331.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/331


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                                                       NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _______________

                                     No. 04-4617
                                  ________________

                                   MARC D. STEIN,
                                            Appellant


                                           v.

        WESTFIELD INSURANCE COMPANY; WESTFIELD COMPANIES

                     ____________________________________

                   On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                               (D.C. No. 98-cv-01714)
                    District Judge: Honorable Gary L. Lancaster
                   _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                October 21, 2005
              Before: SMITH, BECKER and NYGAARD, Circuit Judges


                               (Filed October 27, 2005 )


                              _______________________

                                     OPINION
                              _______________________

BECKER, Circuit Judge.

      Plaintiff Marc D. Stein appeals from an order of the District Court granting final
judgment against Stein and in favor of defendants Westfield Insurance Company and

Westfield Companies (collectively “Westfield”) under Fed. R. Civ. P. 54(b), in a breach

of contract action in which Stein alleged that Westfield failed to properly investigate his

insurance claim. Stein also asserted a variety of statutory and tort claims, and Westfield

filed assorted counterclaims. Final disposition was precipitated by the Magistrate Judge’s

Report and Recommendation that: (1) Stein’s contract claims be dismissed due to his

failure to cooperate with Westfield in the investigation of the claim; and (2) that Stein’s

emotional distress claim also be dismissed due to his failure to offer medical proof. The

District Court adopted the Report and Recommendation, which, as all the parties agree,

rendered Stein’s remaining claims moot. The 54(b) order, and this appeal, followed.

       Stein’s argument, stripped to its essentials, is that the Court order granting

summary judgment “was premature and in error since discovery in the matter had not

been completed” and that discovery should be reopened to allow him “to establish the

facts necessary to defeat the motion for summary judgment as there exists a genuine issue

of material fact.”

       The parties spar over whether Stein’s former counsel filed a response brief to

Westfield’s motion for summary judgment (his former counsel apparently did so, despite

Stein’s assertion that he did not). At all events, Stein’s arguments must be rejected

because of his failure to file a motion under Fed. R. Civ. P. 56(f) which provides:

       Rule 56. Summary Judgment



                                              2
       (f) When Affidavits are Unavailable. Should it appear from the affidavit 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.

       We have frequently held that “in all but the most exceptional cases, failure to

comply with Rule 56(f) is fatal to a claim of insufficient discovery on appeal.” Bradley v.

United States, 299 F.3d 197, 207 (3d Cir. 2002) (citing Pastore v. Bell Tel. Co. of

Pennsylvania, 24 F.3d 508, 511 (3d Cir. 1994)); see also Rodriguez-Cuervos v.Wal-Mart

Stores, Inc., 181 F.3d 15, 22-23 (1st Cir. 1999); Potter v. Delta Airlines, Inc., 98 F.3d

881, 887 (5th Cir. 1996); In re Temporomandibular Joint (TMJ) Implants Prod. Liab.

Litig., 113 F.3d 1484, 1490 (8th Cir. 1997).1

       The judgment of the District Court will be affirmed.




 1
  Stein’s reliance on Pennsylvania Rule of Civil Procedure 1035.2 and on Pennsylvania
Supreme Court cases does not advance his position, as this case is controlled by the
Federal Rules of Civil Procedure.

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