           Case: 15-10712   Date Filed: 01/18/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10712
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cv-00283-ELR



ANTIONETTE SMEDLEY,

                                                        Plaintiff-Appellant,

                                  versus

DEUTSCHE BANK TRUST COMPANY AMERICAS,
MCCURDY & CANDLER, LLC,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (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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