                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 30 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SUSAN SCHLUSSLER-WOMACK,
    an individual,

                Plaintiff-Appellant,
                                                         No. 03-6312
    v.                                             (D.C. No. 02-CV-1695-L)
                                                         (W.D. Okla.)
    CHICKASAW TECHNOLOGY
    PRODUCTS INC., doing business as
    Apigent Solutions Inc., an Oklahoma
    corporation; CHICKASAW HOLDING
    COMPANY, an Oklahoma
    corporation,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before LUCERO , McKAY , and PORFILIO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Susan Schlussler-Womack appeals the district court’s grant of summary

judgment to Chickasaw Holding Company (Chickasaw) and denial of her motion

for reconsideration. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                   Background

      Ms. Schlussler-Womack was employed by Chickasaw Technology Products,

Inc., a company doing business as Apigent Solutions, Inc. (Apigent). In late

2001, Apigent announced that it planned to make changes to its Employee Stock

Ownership Plan and Trust that would result in employees losing their unvested

benefits. At an initial meeting on November 9 and a second meeting on

December 6, Ms. Schlussler-Womack questioned management about employees’

legal rights and the anticipated changes. On December 7, she informed the

Human Resource Manager that she was not satisfied with management’s

explanations and that she was seeking outside assistance. On December 10,

within hours after she discussed the situation with some outside contacts, her

employment was terminated effective immediately, and she was escorted off the

property.

      Ms. Schlussler-Womack sued Apigent, alleging that her employment was

terminated because she questioned Apigent’s administration of the Employee


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Stock Ownership Plan, and such retaliation was in violation of the Employee

Retirement Income Security Act of 1974 (ERISA). She also named Chickasaw as

a defendant, alleging that Chickasaw was Apigent’s parent and alter ego, and

therefore it was responsible for Apigent’s ERISA violations. Apigent filed for

bankruptcy two days after the filing of Ms. Schlussler-Womack’s complaint, and

it was never served in this action.

       Rather than filing an answer, Chickasaw filed a motion for summary

judgment arguing that it was separate from Apigent and not vicariously liable for

Apigent’s actions. In response, Ms. Schlussler-Womack stated that the case was

in its initial stages and that she had not yet been able to pursue discovery, so she

had insufficient information to admit or deny all but one of Chickasaw’s

purported undisputed facts. She argued that Chickasaw’s motion should be

denied because, in other litigations involving other employees, Chickasaw had

failed to distinguish itself from Apigent. In support of this argument, she

attached the filings containing the alleged admissions.   1
                                                              In the alternative, she


1
       Specifically, the alleged admissions are: (1) on July 25, 2001, another
employee brought an employment discrimination action against “Chickasaw
Holding Company d/b/a Apigent Solutions” and alleged that Apigent was “a
division of Chickasaw Holding.” R. at 39-40, caption and ¶ 7. In its answer,
Chickasaw identified itself as “Chickasaw Holding Company, d/b/a Apigent
Solutions” and admitted the allegations of paragraph 7 “based on Defendant’s
available information, knowledge and belief at the present time,” R. at 42, intro.
and ¶ 2; and (2) a former officer of Chickasaw alleged in a complaint dated
                                                                       (continued...)

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argued that summary judgment was improper until she could conduct discovery.

Although the latter argument was based on Federal Rule of Civil Procedure 56(f),

she did not attach an affidavit as required by that rule, and she did not make

specific allegations concerning the discovery she wanted to pursue.

      The district court held that Ms. Schlussler-Womack’s attachments failed to

satisfy W.D. Okla. LCvR 7.2(h),   2
                                      and so they would not be considered. In

addition, the district court held that Ms. Schlussler-Womack had not supported

her request for a continuance with an affidavit, as required by Federal Rule of

Civil Procedure 56(f), and so she would not be allowed to invoke that rule. As a

result, under W.D. Okla. LCvR 56.1(c),     3
                                               the district court deemed all of

Chickasaw’s proposed undisputed facts undenied (and therefore admitted), and

granted Chickasaw’s motion for summary judgment. The district court




1
 (...continued)
May 10, 2001, that Chickasaw’s principal office was located at 5 N. McCormick
in Oklahoma City, R. 44 at ¶ 2, and Chickasaw admitted the allegations of
paragraph 2. R. 46, ¶ 2. In Ms. Schlussler-Womack’s suit in January 2003,
Chickasaw asserted that its office was located in Sulphur, Oklahoma. R. 22, ¶ 10.
2
      W.D. Okla. LCvR 7.2(h) states, “[f]actual statements or documents
appearing only in briefs shall not be deemed to be a part of the record in the case,
unless specifically permitted by the Court.”
3
       In pertinent part, W.D. Okla. LCvR 56.1(c) states, “[a]ll material facts set
forth in the statement of the material facts of the movant shall be deemed
admitted for the purpose of summary judgment unless specifically controverted by
the statement of material facts of the opposing party.”

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subsequently denied Ms. Schlussler-Womack’s motion for reconsideration.

Ms. Schlussler-Womack appeals.

                                         Analysis

                                   Summary Judgment

       We review the district court’s grant of summary judgment de novo.          Sports

Racing Servs., Inc. v. Sports Car Club of Am., Inc.      , 131 F.3d 874, 882 (10th Cir.

1997). We review its decision to exclude evidence, its application of its local

rules, and its denial of a Rule 56(f) motion for abuse of discretion.      Id. at 894

(excluding evidence);    Hernandez v. George , 793 F.2d 264, 268 (10th Cir. 1986)

(local rules); Comm. for the First Amend. v. Campbell        , 962 F.2d 1517, 1522 (10th

Cir. 1992) (Rule 56(f)). “Under the law of this circuit, judicial action which is

arbitrary, capricious, or whimsical . . . [or a] ruling based on an erroneous view of

the law or on a clearly erroneous assessment of the evidence . . . constitute[s] an

abuse of discretion.”    Amoco Oil Co. v. EPA , 231 F.3d 694, 697 (10th Cir. 2000)

(citations and quotations omitted).

       The district court’s disregard of Ms. Schlussler-Womack’s attachments

under LCvR 7.2(h) was not an abuse of discretion. Other than counsel’s

statements in the brief, Ms. Schlussler-Womack provided nothing to authenticate

or establish a foundation for her attachments, and therefore they were not

established to be admissible evidence.      See Harris v. Beneficial Okla., Inc. (In re


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Harris) , 209 B.R. 990, 993, 995-97 (B.A.P. 10th Cir. 1997) (“The Bankruptcy

Court had no way to test the genuineness of the documents as they were in no way

identified by a witness for [the offering party]. Accordingly, the Bankruptcy

Court did not abuse its discretion in refusing to consider them.”).

      Further, Ms. Schlussler-Womack admittedly failed to fulfill the

requirements of Rule 56(f) by not attaching an affidavit in support of her request

for a continuance. The district court could have excused her failure and exercised

its discretion to grant her a continuance. But it did not, and its declining to

excuse her non-compliance was not an abuse of its discretion.      Carr v. Castle ,

337 F.3d 1221, 1233 (10th Cir. 2003)   ; Comm. for the First Amend. , 962 F.2d at

1522; see also Pasternak v. Lear Petroleum Exploration, Inc.     , 790 F.2d 828, 833

(10th Cir. 1986) (“Rule 56(f) may not be invoked by the mere assertion that

discovery is incomplete or that specific facts necessary to oppose summary

judgment are unavailable; the opposing party must demonstrate how additional

time will enable him to rebut movant’s allegations of no genuine issue of fact.”)

(citation and quotation omitted). Similarly, the district court did not abuse its

discretion in relying on LCvR 56.1(c) to deem the bulk of Chickasaw’s facts

unopposed and admitted.    See Mitchael v. Intracorp, Inc.   , 179 F.3d 847, 856 (10th

Cir. 1999).




                                           -6-
      Ms. Schlussler-Womack failed to bear her burden to oppose Chickasaw’s

motion for summary judgment. Even if her attachments were considered, she

presented no more than minimal evidence to counter the admitted facts: one

filing indicated that, eighteen months before Ms. Schlussler-Womack’s case,

Apigent and Chickasaw had the same office address, and the other indicated that

Apigent was a division of Chickasaw, “based on Defendant’s available

information, knowledge and belief at the present time.” R. at 42, ¶ 2. When

compared against the facts deemed to be admitted (including that the management

of the two companies were separate, they maintained separate payrolls,

accounting systems, financial accounts, minute books, and corporate records, they

conducted separate meetings of their boards of directors, and that Chickasaw was

not the trustee or administrator of Ms. Schlussler-Womack’s Employee Stock

Option Plan, R. at 11), the two pieces of information offered by Ms.

Schlussler-Womack did not suffice to create a genuine issue of material fact as to

whether Chickasaw was the alter ego of Apigent. As we have previously held:

      The mere existence of a scintilla of evidence in support of the
      nonmovant’s position is insufficient to create a dispute of fact that is
      “genuine”; an issue of material fact is genuine only if the nonmovant
      presents facts such that a reasonable jury could find in favor of the
      nonmovant.

Lawmaster v. Ward , 125 F.3d 1341, 1347 (10th Cir. 1997). The district court did

not err in granting Chickasaw’s motion for summary judgment.


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                               Denial of Reconsideration

       We review the district court’s denial of Rule 59(e) and Rule 60(b) motions

for abuse of discretion.   Computerized Thermal Imaging, Inc. v. Bloomberg, L.P.     ,

312 F.3d 1292, 1296 n.3 (10th Cir. 2002). Given that the district court’s denial of

Ms. Schlussler-Womack’s motion to reconsider was clearly identified as an issue

on appeal, we decline to accept Chickasaw’s invitation to find a waiver of this

issue, and instead we consider the merits.

       Ms. Schlussler-Womack argued that her motion to reconsider was

“legitimate and authorized under Fed. R. Civ. P. 59(e) and 60(b), based on the

inadvertence of counsel.” R. at 60, ¶ 1. She further stated that a Rule 56(f)

affidavit was not originally provided due to “an oversight of counsel,” R. 61, ¶ 3,

and she attached an affidavit to her motion. R. at 64-65.

       Only limited grounds support a Rule 59(e) motion.     See Adams v. Reliance

Standard Life Ins. Co. , 225 F.3d 1179, 1186 n.5 (10th Cir. 2000) (holding that

Rule 59(e) motions “should be granted only to correct manifest errors of law or to

present newly discovered evidence”);    Brumark Corp. v. Samson Res. Corp.    ,

57 F.3d 941, 948 (10th Cir. 1995) (noting that the requirements for motions for

reconsideration are “an intervening change in the controlling law, the availability

of new evidence, or the need to correct clear error or prevent manifest injustice”).

These factors are not present here. Moreover, it was within the court’s discretion


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to deny relief under Rule 60(b)(1) in these circumstances, given that counsel

failed to follow the plain language of Rule 56(f).   Cf. United States v. Torres ,

372 F.3d 1159, 1163-64 (10th Cir. 2004) (holding that counsel’s failure to follow

an unambiguous rule does not constitute “excusable neglect” under

Fed. R. App. P. 4(b)(4)).   Therefore, it was not an abuse of discretion for the

district court to deny the motion to reconsider.

       The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




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