                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     June 1, 2006
                            FO R TH E TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                     Clerk of Court



    KIM F. DOUGLA SS,

               Plaintiff-Appellant,

    v.                                                No. 05-3178
                                               (D.C. No. 03-CV-2394-CM )
    UNITED AU TO WO RKERS                              (D . Kan.) *
    LOCAL UNION 31,

               Defendant-Appellee.


    KIM DOUGLA SS,

               Plaintiff-Appellant,

    v.

    GENERAL M OTORS                                   No. 05-3184
    C ORPO RA TIO N ,                          (D.C. No. 03-CV-2325-CM )
                                                        (D . Kan.)
               Defendant-Appellee,

         and

    UNITED AU TO WO RKERS
    LOCAL UNION 31,

               Defendant.




*
      These cases were consolidated for discovery purposes only in the district
court. Because the appeals arise from common facts and raise similar issues, w e
now order them consolidated for disposition under Fed. R. App. P. 3(b).
                           OR D ER AND JUDGM ENT **


Before H E N RY, M cKA Y, and M U RPH Y, Circuit Judges.


      Kim Douglass, an African-American woman born in 1956, is a former

employee of General M otors Corporation (GM ) and a former member of United

Auto W orkers Local 31 (Local 31). During her time with G M , M s. Douglass

sustained a number of injuries–some w ork related, some not–that caused her a

certain amount of disability. After leaving GM she sued the company claiming

that it had violated state and federal laws by refusing–allegedly because of her

age, gender, and race–to properly accommodate her physical limitations. She

sued Local 31 separately, claiming that the union failed to protect her rights and,

in many instances, facilitated and participated in the discrimination. The district

court granted summary judgment for G M and Local 31 and dismissed both

lawsuits. M s. Douglass appeals, alleging various points of district court error.




**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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. 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.

                                         -2-
                                      Discussion

      W e have carefully review ed the briefs, the records, and the law applicable

to these cases. Since the district court granted summary judgment our review is

de novo and we have applied the same legal standard used by the district court:

“Summary judgment is appropriate ‘if the pleadings, depositions, answ ers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’” Garrison v. Gambro, Inc., 428 F.3d

933, 935 (10th Cir. 2005) (quoting Fed.R.Civ.P. 56(c)). W e have viewed the

evidence, and have drawn all reasonable inferences therefrom, in the light most

favorable to M s. Douglass, id., and, because of M s. Douglass’ pro se status, we

have liberally construed her pleadings in the district court, M artinez v. Garden,

430 F.3d 1302, 1304 (10th Cir. 2005), and her filings in this court, M arshall v.

Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1165 (10th Cir. 2003).

      Having done so, we discern no reversible district court error and affirm the

district court’s judgments for substantially the reasons stated in its M arch 31,

2005, orders granting summary judgment. We do, however, wish to discuss in

more detail M s. Douglass’ argument that the district court erred by failing to rule

on one of her discovery motions.




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               District Court’s Failure to Rule on M otion to Compel

      M s. Douglass argues the district court erred by entering summary judgment

without first ruling on an outstanding motion to compel discovery. 1 W e disagree

because (1) M s. Douglass did not file an affidavit under Federal Rule of Civil

Procedure 56(f) stating the reasons w hy she could not present facts essential to

justify her opposition to summary judgment, and (2) none of her other filings

fulfilled the requirements of Rule 56(f).

1. Procedural History

      M s. Douglass filed a motion to compel seeking to force Local 31 to more

fully respond to discovery. The district court denied the motion on the ground

that she had not provided any argument or reasons why Local 31 should be

compelled to answer her discovery requests. M s. Douglass then filed a similar

motion to compel against GM . In its order denying this motion the district court

noted that M s. Douglass:

      fail[ed] to identify the particular interrogatory and request for
      production to which each of her various arguments applie[d]. She
      also provide[d] some factual information, but she [did] not explain
      how those facts pertain[ed] to any particular interrogatory or request

1
       M s. Douglass fails to comply with Federal Rule of Appellate Procedure 28
(setting forth the requirements for appellate briefs) in presenting this point.
Among other failures, she does not identify the discovery motion(s) to which she
is referring and no discovery motions are contained in the record. Although this
failure justifies dismissal of this point, see Garrett v. Selby Connor M addux &
Janer, 425 F.3d 836, 840-41 (10th Cir. 2005) (holding that pro se appellants are
required to follow procedural rules), we have supplemented the record with
district court documents 38, 48, 54, 71, 73, and have proceeded to the merits.

                                            -4-
      nor [did] she explain how such factual information would entitle her
      to receive any particular information or documents from [G M ].

R. (05-3184), Doc. 71 at 1. The court found that these failures “[left] the C ourt

without sufficient information to make an adequate and fair ruling.” Id. at 2.

The district court did, however, give M s. Douglass ten days to file a supplemental

motion curing the referenced defects.

      Before M s. Douglass’ second motion to compel was denied, GM filed a

motion for summary judgment. M s. Douglass opposed the motion by arguing,

among other things:

      Pursuant to Federal Rule 56(f), because of discovery not being
      complete and plaintiff could not obtain other discovery the court
      should refuse defendants [sic] request for Summary Judgment.
      Plaintiff can not obtain affidavits because her REQUEST FOR
      IN TER RO G A TO RIES w ere not answered, and her REQUEST FOR
      PRODUCTION OF DOCUM ENTS were not produced in its entirety.

R. (05-3184), D oc. 67 at 11.

      M s. Douglass thereafter filed a supplemental motion to compel within the

district court’s ten day deadline. GM opposed the supplemental motion on the

ground that M s. Douglass still failed to provide a concise statement of facts, to

explain how GM ’s responses to the discovery requests were improper, or to

provide legal argument or authorities in support of her motion. The court granted

summary judgment without ruling on the supplemental motion to compel.




                                          -5-
2. Analysis

      “[T]here is no requirement in Rule 56, Fed. R. Civ. P., that summary

judgment not be entered until discovery is complete.” Pub. Serv. Co. of Colo. v.

Cont’l Cas. Co., 26 F.3d 1508, 1518 (10th Cir. 1994) (quotation omitted).

Nevertheless, Rule 56(f) states in pertinent part:

      Should it appear from the affidavits of a party opposing [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 discovery to be had . . . .

(emphasis added). “[T]he Supreme Court has held that, under Fed. R. Civ. P.

56(f), ‘summary judgment [should] be refused where the nonmoving party has not

had the opportunity to discover information that is essential to his opposition.’”

Dreiling v. Peugeot M otors of Am., Inc., 850 F.2d 1373, 1376 (10th Cir. 1988)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). “[T]his

protection[, however,] arises only if the nonmoving party files an affidavit

explaining why he or she cannot present facts to oppose the motion,” id., and

stating “with specificity how the desired time would enable the nonmoving party

to meet its burden in opposing summary judgment.” Guthrie v. Sawyer, 970 F.2d

733, 738 (10th Cir. 1992).

      M s. Douglass filed no Rule 56(f) affidavit. Some circuits, however, have

held that a Rule 56(f) affidavit is not always required. In Garrett v. City &

County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987), for example, the

                                          -6-
Ninth Circuit reversed a summary judgment where the district court had not first

ruled on the non-movant’s pending discovery motion. See 26 F.3d at 1518. In

that case, the court held that the pending discovery motion satisfied the affidavit

requirement of Rule 56(f) because the motion

      made clear the information sought, did not seek broad additional
      discovery, but rather sought only the personnel records of the 16
      named firefighters and indicated the purpose for which this
      information was sought, namely, to determine whether similarly
      situated firefighters were being treated differently on the basis of
      race.

Garrett, 818 F.2d at 1518-19.

      In Public Service Co., the question before this court was whether the

district court erred when it “enter[ed] summary judgment . . . before granting

relief on [the non-movant’s] motions for protective orders and . . . motion to

compel discovery.” 26 F.3d at 1518. W e distinguished Garrett on the ground

that the non-movant’s motion to compel and other materials at issue in Public

Service Co., made “no showing of specific evidence expected to be obtained [by

non-movant if more time was granted].” Id.

      The same can be said in the case at hand. M s. Douglass argued in

opposition to summary judgment that the insufficient responses to her discovery

requests prevented her from obtaining affidavits supporting her arguments.

Similarly, her supplemental motion to compel argued that “[t]he information [she




                                         -7-
sought was] relevant to all of [her] claims and [was] in the custody and control of

defendant,” R. (05-3184), D oc. 73 at 2.

      But it is not enough to merely assert that discovery is incomplete, that facts

necessary to oppose summary judgment are unavailable, or that the opposing

party controls the evidence supporting an allegation. Guthrie, 970 F.2d at 738.

Neither of these filings stated with specificity how additional time would enable

her to support her argument against summary judgment. Her memorandum in

opposition to summary judgment provided no argument beyond that quoted

previously and a review of her supplemental motion to compel shows that

M s. Douglass only addressed GM ’s many apparently valid objections to her

discovery requests in the most cursory and conclusory manner. Consequently, w e

cannot find that M s. Douglass stated “with specificity how the desired [extension

of] time [for discovery] would enable [her] to meet [her] burden in opposing

summary judgment.” Guthrie, 970 F.2d at 738.

                                    Conclusion

      The judgments of the district court are AFFIRM ED. M s. Douglass’ M otion

(in C ase N o. 05-3184) to D isallow Appellee Brief and for Sanctions is DENIED .

                                                    Entered for the Court


                                                    Robert H. Henry
                                                    Circuit Judge




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