               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-60545


GALAXY TIRE, INC.,

                                    Plaintiff-Appellant,

versus

DENNIS TERWILLIGER; 399 VENTURE PARTNERS, INC.;
GORDON M. CLARK; KATHLEEN ETHERINGTON; JACK O’MARA;
CITICORP VENTURE CAPITAL, LTD.,

                                    Defendants-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
   for the Southern District of Mississippi, Jackson Division
                         (5:97-CV-71-BS)
                       - - - - - - - - - -

                           July 14, 1999

Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Galaxy Tire, Inc. (“Galaxy”) appeals the district court’s

grant of summary judgment to the Defendants and its effective

denial of Galaxy’s Rule 56 request to pursue discovery. We vacate

and remand.

     The case arises out of Galaxy’s September 1996 purchase of

1.1 million unissued shares in Condere Corp. (“Condere”), a 21-

percent stake in the company, at $4.00 per share. After Condere

subsequently fell into bankruptcy, Galaxy brought suit against



     *. Pursuant to 5th Cir. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Condere’s key stockholders and Citicorp Venture Capital, Ltd.,

the controlling entity of a key stockholder. Galaxy alleged

fraudulent inducement to purchase, breach of contract, promissory

estoppel, breach of good faith and fair dealing, tortious

interference with business relations and contract, breach of

fiduciary duty, and misappropriation of trade secrets. On January

8, 1998, the Defendants moved for Rule 12(b)(6) dismissal or

alternatively for summary judgment. On February 2,2 the district

court instructed the parties to agree upon a one-year schedule

for discovery. Citing the Private Securities Litigation Act of

1995,3 the Defendants refused to comply with any discovery

requests until the district court ruled on the motion to dismiss.

Galaxy sought a discovery order from the magistrate judge to

obtain subpoenas duces tecum to preserve evidence in the hands of

third parties to the case. On February 13, Galaxy opposed the

Defendants’ motion to dismiss or for summary judgment. Pursuant

to Federal Rule of Civil Procedure 56(f),4 Galaxy submitted an


     2.  All dates are 1998 unless otherwise stated.
     3.  The Act provides, in part:
          In any action arising under this chapter, all
     discovery and other proceedings shall be stayed during
     the pendency of any motion to dismiss, unless the court
     finds upon the motion of any party that particularized
     discovery is necessary to preserve evidence or to
     prevent undue prejudice to that party.
15 U.S.C. § 78u-4(b)(3)(B).
     4. Rule 56(f) provides:
     Should it appear from the affidavits of a party
     opposing the motion [for summary judgment] 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

                               -2-
affidavit of counsel with a request for continuance to pursue

discovery. The discovery motion before the magistrate and

Galaxy’s Rule 56(f) request for discovery were still pending, and

no discovery had taken place, when the district court granted

summary judgment to the Defendants on July 31.

     “When a party moves the court under [Rule] 56(f) for a

continuance to allow additional discovery, ‘he directly and

forthrightly invokes the trial court’s discretion.’” American

Lease Plans, Inc. v. Silver Sands Co., 637 F.2d 311, 317-18 (5th

Cir. Feb. 1981) (citing 6 James Wm. Moore et al., Moore’s Federal

Practice ¶ 56.24 (1980)); accord United States v. Little Al, 712

F.2d 133, 135 (5th Cir. 1983). This Court, therefore, generally

reviews only for abuse of discretion a district court’s decision

to deny a Rule 56(f) request for additional discovery. See Solo

Serve Corp. v. Westowne Associates, 929 F.2d 160, 167 (5th Cir.

1991).5



may make such other order as is just.
Fed. R. Civ. P. 56(f).
     5.   Galaxy argues that because the district court failed to
consider the Rule 56(f) motion at all, it failed to exercise its
discretion. Consequently, Galaxy asserts, this Court should
review the district court’s decision de novo. Ample precedent
from the Ninth Circuit supports Galaxy’s contention that these
circumstances warrant de novo review. See, e.g., Byrd v. Guess,
137 F.3d 1126, 1135 (9th Cir. 1998); Qualls v. Blue Cross, 22
F.3d 839, 844 (9th Cir. 1994). Furthermore, other circuits,
without specifically announcing de novo review, have agreed that
granting summary judgment without ruling on a pending Rule 56(f)
request is a failure to exercise judicial discretion. See, e.g.,
Patty Precision v. Brown & Sharpe Manufacturing Co., 742 F.2d
1260, 1265 (10th Cir. 1984). This Circuit has not addressed the
question, and we need not do so here, because under either
standard we would vacate the grant of summary judgment and
effective denial of the 56(f) motion.

                               -3-
     From the record, it appears that the district court

mistakenly overlooked Galaxy’s Rule 56(f) motion and accompanying

affidavit. Its opinion mentions neither the Rule 56(f) request

nor the discovery motion that was pending before the magistrate

judge. Instead, the opinion states: “Galaxy argues that the Court

should not consider the Motion as one for summary judgment

because discovery has not been completed. Galaxy offered no

explanation as to what additional discovery it needed.” To the

contrary, Galaxy’s affidavit of counsel accompanying its 56(f)

motion stated specifically which parties Galaxy wanted to depose

and what information it hoped to get from each party. The

district court’s failure to mention this leads us to the

conclusion that it did not consider the motion or affidavit.

     In general, a district court should not grant summary

judgment before the parties have completed discovery. See Xerox

Corp. v. Genmoora Corp., 888 F.2d 345, 354 (5th Cir. 1989). This

is especially true in cases like this one, where motive and

intent are factors that must be shown in order for the plaintiff

to prove his cause. See, e.g., Fine v. American Solar King Corp.,

919 F.2d 290, 298 (5th Cir. 1990) (noting in a Rule 10b-5 case

that summary judgment should be used sparingly because motive and

intent are at issue). Rule 56(f) is a safeguard designed to

protect against a premature or improvident grant of summary

judgment. See Washington v. Allstate Insurance Co., 901 F.2d

1281, 1285 (5th Cir. 1990) (citing 10A Charles Alan Wright et

al., Federal Practice and Procedure § 2740 (2d ed. 1983)). A Rule


                               -4-
56(f) continuance of a motion for summary judgment “‘should be

granted almost as a matter of course’ unless ‘the non-moving

party has not diligently pursued discovery of the evidence.’”

Wichita Falls Office Associates v. Banc One Corp., 978 F.2d 915,

919 n.4 (5th Cir. 1992) (quoting International Shortstop, Inc. v.

Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991)). A party is

not dilatory in seeking discovery when a court-ordered stay of

discovery is in effect or when discovery efforts have otherwise

been impeded, as they were for Galaxy. See, e.g., id. at 920

(finding that a party requesting Rule 56(f) discovery was not

dilatory when it reasonably awaited the outcome of pending

settlement negotiations before conducting further discovery);

International Shortstop, 939 F.2d at 1268 (finding that a party

requesting Rule 56(f) discovery was not dilatory when the other

party had consistently opposed discovery requests on the ground

of attorney-client privilege).

     From these standards, it is clear that, had the district

court been aware of Galaxy’s Rule 56(f) motion and accompanying

affidavits, it would not have granted summary judgment without,

at a minimum, explaining why it would refuse the Rule 56(f)

motion.

     We therefore VACATE the grant of summary judgment and REMAND

to the district court to consider Galaxy’s Rule 56(f) motion.




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