                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 15, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT




    MICHAEL E. MCKINZY, SR.,

                Plaintiff-Appellant,

    v.                                                    No. 09-3108
                                              (D.C. No. 2:08-CV-02519-CM-JPO)
    UNION PACIFIC RAILROAD,                                (D. Kan.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.



         Plaintiff-Appellant Michael E. McKinzy, Sr., appearing pro se, appeals the

district court’s order denying his motion for summary judgment and granting the

motion for summary judgment of defendant-appellee Union Pacific Railroad.

Mr. McKinzy, who proceeded pro se in the district court as well, brought a



*
       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
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
failure-to-hire employment discrimination case against Union Pacific, filing his

original complaint on October 20, 2008, and his amended complaint on

November 12, 2008. Following Union Pacific’s answer on December 9, 2008, a

scheduling conference was set for January 27, 2008. On December 22, 2008,

Mr. McKinzy filed a motion for summary judgment. Under D. Kan. R. 6.1(d)(2),

Union Pacific’s response was due twenty-three days later. But nine days after

Mr. McKinzy filed his summary judgment motion, Union Pacific filed a motion

asking that the court either deny Mr. McKinzy’s motion without prejudice as

premature or grant Union Pacific an extension of time until February 13, 2009, to

file its response. Union Pacific first argued that it was simply too early in the

proceedings for a summary judgment motion, noting that its response was due

almost two weeks before the scheduling conference. It also argued that it should

not be made to respond to the summary judgment motion without benefit of

discovery. Mr. McKinzy filed a response to Union Pacific’s motion, asserting

that Union Pacific had already been provided with his qualifications for the

employment positions he sought and that the company had deposed him in a

previous case.

      On January 14, 2009, the district court denied Union Pacific’s motion in

part and granted it in part. The court refused to deny Mr. McKinzy’s motion as

premature, but granted Union Pacific until February 13, 2009, to respond because

no scheduling conference had been held and no discovery deadlines set.

                                          -2-
      On February 13, 2009, Union Pacific filed its response to Mr. McKinzy’s

motion and its own cross-motion for summary judgment. After Mr. McKinzy

failed to timely respond to either the cross-motion for summary judgment or the

court’s subsequent order to show cause, the court entered an order denying

Mr. McKinzy’s summary judgment motion and granting Union Pacific’s motion.

Mr. McKinzy has appealed from this order and the accompanying judgment.

      Mr. McKinzy argues on appeal that the district court erred in granting

summary judgment to Union Pacific. But he does so in a round-about way. He

does not attack the summary judgment ruling on its merits. Nor does he discuss

the merits of the district court’s ruling denying his motion for summary judgment.

Instead, Mr. McKinzy’s three-part argument is that (1) the district court erred

when it granted Union Pacific an extension of time to respond to his summary

judgment motion, (2) if the district court had properly denied the extension of

time, Union Pacific would have been unable to file a timely response, and

(3) without a timely response, the district court would have had to grant him

summary judgment as a matter of law. There are flaws in all three parts of

Mr. McKinzy’s argument.

      The first part of his argument is that the district court abused its discretion

in granting Union Pacific an extension of time because Union Pacific’s motion

was not accompanied by an affidavit under Rule 56(f) of the Federal Rules of




                                          -3-
Civil Procedure. 1 We cannot rule that the district court abused its discretion in

extending the response deadline for a month on the basis of the lack of a Rule

56(f) affidavit, because the grounds given by the district court for granting the

extension–that no scheduling conference had been held and no discovery

deadlines had been set–were readily apparent from the docket sheet.

Mr. McKinzy does not attack the merits of the ruling, simply that the request for

continuance was unsupported by a Rule 56(f) affidavit.

      But even if we were to assume that the district court abused its discretion,

we would not reverse. The district court did grant an extension of time for Union

Pacific to respond and Union Pacific complied with the district court’s order.

Mr. McKinzy’s implicit assertion that Union Pacific would have failed to file a

timely summary judgment absent an extension of time is pure speculation.




1
      Rule 56(f) reads:

      (f) When Affidavits Are Unavailable. If a party opposing the
      motion [for summary judgment] shows by affidavit that, for specified
      reasons, it cannot present facts essential to justify its opposition, the
      court may:

             (1) deny the motion;

             (2) order a continuance to enable affidavits to be obtained,
             depositions to be taken, or other discovery to be undertaken; or

             (3) issue any other just order.


                                         -4-
      But even if we were to assume both that the district court erred in granting

the extension and that Union Pacific would not have filed a timely response, we

still would not reverse. Mr. McKinzy’s apparent belief that he would have

automatically been entitled to summary judgment if Union Pacific had failed to

file a timely response is simply incorrect. Although D. Kan. R. 56.1(a) provides

that all material facts set forth in the summary judgment statement of the movant

are deemed admitted unless they are controverted by a statement of the opposing

party, the district court still has to determine whether, under the facts alleged by

the movant, the movant is entitled to judgment as a matter of law. See Murray v.

City of Tahlequah, 312 F.3d 1196, 1200 (10th Cir. 2002) (holding that “[i]f the

nonmoving party fails to respond, the district court may not grant the [summary

judgment] motion without first examining the moving party’s submission to

determine if it has met its initial burden of demonstrating that no material issues

of fact remain for trial and the moving party is entitled to judgment as a matter of

law”). Here, as described by the district court, “[a]side from minor discrepancies,

there is no material dispute as to the facts underlying this action,” R., Doc. 29 at

3, and it is not readily apparent from Mr. McKinzy’s complaint that, even if the

factual allegations therein were accepted unconditionally, he would have been

entitled to summary judgment as a matter of law.




                                          -5-
      Any one of the reasons discussed above would be sufficient to deny

Mr. McKinzy’s appeal. Consequently, the judgment of the district court is

AFFIRMED.


                                                  Entered for the Court



                                                  Wade Brorby
                                                  Senior Circuit Judge




                                       -6-
