
USCA1 Opinion

	




          November 20, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No. 91-2242        No. 91-2242                              KIMBERLY MATTOON, ET AL.,                              KIMBERLY MATTOON, ET AL.,                               Plaintiffs, Appellants,                               Plaintiffs, Appellants,                                          v.                                          v.                             CITY OF PITTSFIELD, ET AL.,                             CITY OF PITTSFIELD, ET AL.,                                Defendants, Appellees.                                Defendants, Appellees.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ____________________                                 ____________________                                        Before                                        Before                                  Cyr, Circuit Judge,                                  Cyr, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                           Campbell, Senior Circuit Judge,                                     ____________________                             and Fuste,* District Judge.                             and Fuste,* District Judge.                                         ______________                                 ____________________                                 ____________________             W. Stanley Cooke for appellants.             W. Stanley Cooke for appellants.             ________________             Richard  J. O'Brien with whom David O. Burbank and Cain, Hibbard,             Richard  J. O'Brien with whom David O. Burbank and Cain, Hibbard,             ___________________           ________________     ______________        Myers & Cook were on brief for appellee City of Pittsfield.        Myers & Cook were on brief for appellee City of Pittsfield.        ____________             John C.  Sikorski with  whom Robinson,  Donovan, Madden  & Barry,             John C.  Sikorski with  whom Robinson,  Donovan, Madden  & Barry,             _________________            ____________________________________        P.C. was on brief for appellees Krofta Engineering Corp., et al.        P.C. was on brief for appellees Krofta Engineering Corp., et al.        ____             William  Shields  with whom  Carol F.  Liebman  and Day,  Berry &             William  Shields  with whom  Carol F.  Liebman  and Day,  Berry &             ________________             _________________      _____________        Howard were on brief for appellee Metcalf & Eddy, Inc.        Howard were on brief for appellee Metcalf & Eddy, Inc.        ______             Jay S. Gregory with whom David J. Hatem and Posternak, Blankstein             Jay S. Gregory with whom David J. Hatem and Posternak, Blankstein             ______________           ______________     _____________________        & Lund were on brief for O'Brien & Gere, Inc.        & Lund were on brief for O'Brien & Gere, Inc.        ______             Elizabeth W.  Morse  with whom  John A.  Wickstrom and  Tashjian,             Elizabeth W.  Morse  with whom  John A.  Wickstrom and  Tashjian,             ___________________             __________________      _________        Simsarian & Wickstrom were on brief for appellee Fisher, et al.        Simsarian & Wickstrom were on brief for appellee Fisher, et al.        _____________________                                 ____________________                                 ____________________                                 ____________________                                 ____________________        *Of the District of Puerto Rico, sitting by designation.        *Of the District of Puerto Rico, sitting by designation.                    CYR,  Circuit Judge.  Appellants, sixty-eight residents                    CYR,  Circuit Judge.                          _____________          of  Berkshire  County,  Massachusetts,  who  allegedly contracted          giardiasis  (otherwise  known as  "beaver  fever")  from drinking          contaminated water  supplied by  the City of  Pittsfield ("City")          during  November and December  of 1985, brought  suit against the          City and  various contractors and consultants  for alleged viola-          tions  of federal and state  law.1  Summary  judgment was granted          in  favor of all six defendants on appellants' federal claims and          the court dismissed  the pendent state law  claims without preju-          dice.  We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    We describe only the essential procedural background to          these complex proceedings.   As in any summary judgment  case, we          recite the relevant facts in the light most favorable to the non-          moving parties, in this  case the appellants.  See,  e.g., Siegal                                                         ___   ____  ______          v. American Honda Motor Co., 921 F.2d 15, 17 (1st Cir. 1990).             ________________________                    In November  1985, the City reopened  its Ashley Reser-          voir to  supply area  residents with  drinking water  while other                                        ____________________               1The five  other defendants  are Kroftka  Engineering Corp.,          Lenox Institute for Research, Inc., O'Brien & Gere, Inc., Metcalf          & Eddy, Inc., and Fisher &  Porter Co.  Kroftka and Lenox advised          and assisted in the design of the City's new water filtration and          treatment facilities.  O'Brien  & Gere supervised construction of          the  new facilities.  Metcalf  & Eddy designed  the City's Ashley          Reservoir chlorine  system and performed  other services relating          to the City's water distribution equipment.  Fisher & Porter sold          the  chlorination equipment  used  at the  Ashley Reservoir,  and          performed some maintenance.          City water  facilities were undergoing construction.   The Ashley          Reservoir  had not been in  use since 1983.  Due  to a major mal-          function in its chlorination  system, the Ashley Reservoir became          contaminated  with the  giardia  lamblia pathogen.2   Other  area          reservoirs were affected as well.  By December 11, 1985, the City          Health Department had received several reports of giardiasis.  On          December 13, a  "boil water"  order was  issued.  By  the end  of          December several  hundred cases of giardiasis  had been reported.          On December 23,  1985, the  Ashley Reservoir  was shut  down, but          there were sporadic reports of giardiasis as late as 1987.  A new          City water filtration  system was placed in  operation in January          1987.  Although there was evidence that particles the size of the          giardia lamblia pathogen  would not  be removed even  by the  new          filtration system, there was no  evidence which would support  an          inference that  any post-1985  giardiasis reports were  linked to          problems with the City water system.                    Appellants filed  their complaint in June  1988.  Count          I, labelled  a "citizens' action"  pursuant to the  Safe Drinking          Water Act ("SDWA"), 42 U.S.C.    300f, et seq., demanded  equita-                                                 __ ___          ble  relief  and civil  penalties.   Count  II alleged  a "public          nuisance" claim under federal  common law and sought compensatory          damages.  Count III  asserted a claim for damages pursuant  to 42          U.S.C.   1983.  Count IV pled a breach of warranty claim pursuant          to  the Magnuson-Moss  Warranty Act,  15 U.S.C.    2301,  et seq.                                                                    __ ___                                        ____________________               2The giardia  lamblia inhabits  the intestinal tract  of the          beaver.                                          4          Other counts  asserted pendent common law  claims under Massachu-          setts law.                    In October 1989, following several months of discovery,          a  magistrate  judge  ordered  all  further  interrogatories  and          requests for production served by November 3, 1989, and responses          and objections  served by December 8.  Except for five "unusually          elaborate" discovery  motions filed by appellants, the magistrate          judge ruled on  all motions  by February 9, 1990,  and leave  was          granted  to amend the complaint.  The magistrate judge set May 23          as the deadline for summary judgment motions, ordered "non-expert          discovery" to proceed, and  stated that expert discovery relating          to  issues surviving  the summary  judgment proceedings  would be          allowed to  proceed after  the summary judgment  proceedings were          concluded.  Thereafter, the deadline for summary judgment motions          was extended several times.                    On July 10, 1990, the  magistrate judge ruled on appel-          lants'  five remaining  motions  to compel,  fairly described  as          "well-meant but  nightmarishly  confusing and  unhelpful."   Most          were  denied without prejudice.   At a status  conference held on          September 6, the  magistrate judge extended the  time for summary          judgment  until  November 30  and  stated  that  "plaintiffs  may          proceed with necessary  discovery during the  time set aside  for          briefing  the motions  for  summary judgment."   Plaintiffs  were          admonished about  their obligations under  Fed. R. Civ.  P. 56(f)          should they request further  time to prepare their  opposition to          summary judgment.                                          5                    Appellants were granted further  time to respond to the          motion  for  summary judgment,  and  oral  argument was  held  in          January 1991.  Throughout the seven-month period between May 1990          (the original  summary judgment motion deadline)  and the January          1991 hearing,  extensive non-expert discovery had  proceeded.  On          January 7, 1991, the magistrate  judge stayed all further discov-          ery  pending a  ruling on  the summary  judgment motion.   Expert          discovery  never took place.  The magistrate judge filed a report          and  recommendation in  July 1991,  proposing that  defendants be          granted  summary judgment  on all federal  claims.   The district          court approved the recommended decision in November 1991.  See 28                                                                     ___          U.S.C.   636(b)(1).                    Appellants challenge the  order entered July 16,  1991,          denying their request for further  discovery pursuant to Fed.  R.          Civ. P. 56(f), and the grant of summary judgment on their federal          claims.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    The summary judgment was predicated on the grounds that          (1) all other  forms of federal relief are preempted by the SDWA,          (2) appellants did  not comply with the SDWA notice requirements,          and  (3) their SDWA claims  are not actionable  absent an ongoing          violation.   Our  review is  de novo  and we  will  conclude that                                       __ ____          "[s]ummary judgment  [was] warranted where the  record, viewed in          the light  most favorable  to the nonmoving  party, reveals  that                                          6          there  is no  genuine factual  dispute and  the moving  party was          entitled to  judgment as a matter  of law."  Siegal,  921 F.2d at                                                       ______          17.          A.  SDWA Preemption          A.  SDWA Preemption              _______________                    Appellants challenge the district court ruling that the          SDWA preempts their section 1983 and  common law nuisance claims.          Relying  on  Middlesex  County  Sewerage Auth.  v.  National  Sea                       _________________________________      _____________          Clammers  Ass'n, 453 U.S. 1 (1981), the district court ruled that          _______________          the  enforcement  scheme under  the  SDWA, like  those  under the          environmental  statutes at  issue  in Sea  Clammers,3 is  "suffi-                                                _____________          ciently comprehensive  . . . to demonstrate  congressional intent          to preclude the  remedy of  suits under   1983,"  id. at 20,  and                                                            ___          that  the SDWA as a  whole is sufficiently  comprehensive to pre-          clude federal common  law remedies,  id. at 22.   Although  their                                               ___          arguments  are  far from  clear,  appellants  appear to  contend:          first, that several of their claims stem from events not regulat-          ed by the SDWA and thus that the SDWA does not preclude relief on          their federal  common law nuisance claims; second,  that the SDWA          is sufficiently unlike the  statutes at issue in Sea  Clammers to                                                           _____________          call into question the district court's reliance on Sea Clammers;                                                              ____________          and third, that  the court erred  in concluding that  appellants'                                        ____________________               3At issue in Sea  Clammers were the Federal  Water Pollution                            _____________          Control  Act ("FWPCA"), 33 U.S.C.    1251 et seq., and the Marine                                                    __ ___          Protection,  Research  and  Sanctuaries  Act("MPRSA"),  33 U.S.C.             1401 et seq.                  __ ___                                          7          formulation of  a section  1983  claim could  not withstand  SDWA          preemption.                                          8               1.  Federal Common Law               1.  Federal Common Law                   __________________                    The  federal common  law nuisance claims  cannot escape          preemption if the enactment  of the SDWA "occupied the  field [of          public drinking water regulation]  through the establishment of a          comprehensive regulatory program supervised by an expert adminis-          trative  agency."   Milwaukee  v.  Illinois,  451 U.S.  304,  317                              _________      ________          (1981); see also Conner  v. Aerovox, Inc., 730 F.2d 835, 837 (1st                  ___ ____ ______     _____________          Cir. 1984)  (under same  standard, FWPCA  held to have  preempted          maritime  claim), cert. denied, 470  U.S. 1050 (1985).   When the                            ____  ______          question  is  whether federal  statutory  or  federal common  law          standards should control  the field, we  "start with the  assump-                    ______          tion" that Congress, not the courts, must decide.  Id. at 317-18.                                                             ___          The establishment of  a comprehensive regulatory program  meeting          the Milwaukee  v. Illinois  standard clearly indicates  that Con-              _________     ________          gress meant  to reserve the  governance of public  drinking water          standards to federal administrative regulation rather than to the          "often vague  and indeterminate  nuisance concepts and  maxims of          equity jurisprudence."  Milwaukee, 451 U.S. at 317.                                  _________                    We have  little hesitation in concluding  that Congress          occupied the field of  public drinking water regulation  with its          enactment of the SDWA.   "The purpose of the [SDWA] is  to assure          that water supply systems serving the public meet minimum nation-                                                                    _______          al  standards for protection of  public health."   City of Evans-          __  _________                                      ______________          ville, Inc.  v. Kentucky  Liquid Recycling,  604 F.2d  1008, 1016          ___________     __________________________          n.25 (7th Cir. 1979) (quoting H.R. Rep. No. 93-1185, reprinted in          [1974] U.S. Code  Cong. & Admin. News at 6454), cert. denied, 444                                                          ____  ______                                          9          U.S. 1025 (1980)  (emphasis added).   With minor exceptions,  the          SDWA applies "to  each public  water system in  each State."   42          U.S.C.   300g.  The  SDWA enables the Administrator of  the Envi-          ronmental Protection Agency ("Administrator") to "publish maximum          contaminant level goals and promulgate national primary  drinking          water regulations."  Id.   300g-1(b)(1).  The maximum contaminant                               ___          level is to "be set at the level at which no known or anticipated          adverse effects on the  health of persons occur and  which allows          an adequate margin of safety."  Id.   300g-1(b)(4).  The Adminis-                                          ___          trator  is authorized  to  list treatment  techniques to  achieve          compliance with the maximum  allowable contaminant levels and, in          certain  circumstances,  to  require particular  treatment  tech-          niques.  Id.    300g-1(b)(6)-(7).  The federal regulations are to                   ___          be "amended whenever changes in technology, treatment techniques,          and  other  means  permit greater  protection  of  the  health of          persons, but in any  event such regulations shall be  reviewed at          least once every  3 years."   Id.   300g-1(b)(9).   Finally,  al-                                        ___          though  the primary responsibility  for enforcement  remains with          the  States,  the Administrator  is  empowered  to enforce  State          compliance.    Id.     300g-2-3.   Thus,  the  regulatory  scheme                         ___          established under  the SDWA evinces a  clear congressional inten-          tion  to entrust the regulation  of public drinking water systems          to an expert regulatory agency rather than the courts.4                                        ____________________               4Nor are appellants aided by the savings clause in the SDWA.          42 U.S.C.   300j-8.  The Supreme Court has  ruled that the almost          identical savings clause in the FWPCA, 33 U.S.C.    1365(a), does          not  preserve a federal common law remedy in light of the compre-          hensiveness of the FWPCA as a whole.  Milwaukee, 451 U.S. at 328-                                                _________                                          10                    Appellants claim, however, that  the SDWA is not suffi-          ciently comprehensive to meet the  test in Milwaukee v. Illinois,                                                     _________    ________          supra,  particularly because  the  EPA did  not regulate  giardia          _____          lamblia contamination at  the time of  the events which  prompted          the present  litigation.   Appellants misapprehend the  nature of          the comprehensiveness inquiry  required under Milwaukee  v. Illi-                                                        _________     _____          nois, which turns on  "'whether the field has been  occupied, not          ____          whether it has been  occupied in a particular manner.'"   Conner,                                                                    ______          730 F.2d at  841 (quoting Milwaukee, 451 U.S. at  324).  In other                                    _________          words,  "'once Congress  has  addressed a  national concern,  our          fundamental commitment to the  separation of powers precludes the          courts  from scrutinizing  the  sufficiency of  the congressional          solution.'" Id. (quoting  People of State of Illinois v. Illinois                      ___           ___________________________    ________          Outboard  Marine, 680 F.2d 473,  478 (7th Cir.  1982)).  Provided          ________________          the EPA has the  statutory authority to regulate contaminants  in          the  public drinking water supply,  it is within  the province of          the  agency, not the courts, to determine which contaminants will          be regulated.  The comprehensiveness  of the legislative grant is          not  diminished, nor  is the congressional  intent to  occupy the          field  rendered  unclear,  merely  by reason  of  the  regulatory          agency's discretionary  decision to exercise less  than the total          spectrum of regulatory  power with  which it was  invested.   See                                                                        ___          Milwaukee,  451  U.S. at  324-25  n.18  (complaint that  "permits          _________          issued  . . .  under  [the FWPCA]  do  not  control  overflows or          treated discharges  in a sufficiently stringent  manner, not that                                        ____________________          29.                                          11          permits  under the Act cannot deal with these subjects," does not          create an interstice to be filled by federal common law).5               2.  Section 1983               2.  Section 1983                   ____________                    Appellants'  section  1983  claims  are  based  on  two          contentions.   First,  they contend  that their rights  under the          SDWA were violated.   Second,  they assert a  violation of  their          "constitutional  right" to safe drinking water.  We find merit in          neither claim.                    Appellants  may  not pursue  their section  1983 claims          unless  Congress intended  to preserve  a right  of action  under          section  1983 to  redress  SDWA violations.   "When  the remedial          devices provided in a  particular Act are sufficiently comprehen-          sive,  they may  suffice to  demonstrate congressional  intent to          preclude  the remedy of suits  under   1983."   Sea Clammers, 453                                                          ____________          U.S. at 20 (comprehensive enforcement schemes  of FWPCA and MPSRA          preclude    1983 action); see  also Garcia v.  Cecos Int'l, Inc.,                                    ___  ____ ______     _________________          761  F.2d 76,  82-83 (1st  Cir. 1985)  (comprehensive enforcement          scheme  under Resource  Conservation  and Recovery  Act  ("RCRA")          precludes  right of action under    1983).  Like  the statutes at          issue  in Sea Clammers and Garcia, the SDWA establishes an elabo-                    ____________     ______          rate enforcement scheme  which confers rights  of action on  both                                        ____________________               5Of course,  insofar as appellants might  complain about any          failure of the EPA to assert its regulatory power under the SDWA,          we  would lack jurisdiction to entertain their complaint.  See 42                                                                     ___          U.S.C.   300j-7(a)(1) (claims against EPA under  the SDWA must be          brought  in the  Court of  Appeals for  the District  of Columbia          Circuit); Western Nebraska Resources  Council v. E.P.A., 793 F.2d                    ___________________________________    ______          194, 199 (8th Cir. 1986).                                          12          the government and private citizens.  The Administrator may bring          a civil action to compel  SDWA compliance, 42 U.S.C.   300g-3(b),          and may  issue compliance orders  against violators  of the  SDWA          regulations, id.    300g-3(g)(1).  A civil  penalty, amounting to                       ___          as much  as $25,000 per day, may be claimed for violations of the          SDWA regulations.   See  id.    300g-3(b),   300g-3(g)(3)(A).   A                              ___  ___          State is  invested with primary enforcement  authority only after          the Administrator  determines that the State  has adopted regula-          tions at least as  stringent as the federal regulations  and that          the State  "has adopted  and is implementing  adequate procedures          for  the enforcement  of such  State regulations."   Id.    300g-                                                               ___          2(a)(2).   Moreover, private actions may be brought in the United          States  Court of  Appeals for  the District  of  Columbia Circuit          "pertaining  to the  establishment of  national  primary drinking          water regulations  (including maximum contaminant  level goals)."          Id.   300j-7.   Finally,  citizens may initiate  enforcement pro-          ___          ceedings against SDWA violators and against the Administrator for          failure  to perform  any non-discretionary  duty under  the SDWA.          Id.   300j-8.  As  the SDWA enforcement scheme is  closely analo-          ___          gous to other  enforcement schemes found  sufficiently comprehen-          sive to  evince a clear  congressional intent  to preempt  relief          under section 1983,  we hold that appellants' section 1983 claims          are preempted  by the SDWA.6  Cf. Sea Clammers, 453 U.S. at 13-14                                        ___ ____________                                        ____________________               6Nor does the  SDWA savings clause, see  42 U.S.C.   300j-8,                                                   ___          avail  appellants here.    The Court  has  held that  the  almost          identically worded FWPCA savings clause, see 33 U.S.C.   1365(a),                                                   ___          bars  relief under 42 U.S.C.    1983.  Sea  Clammers, 453 U.S. at                                                 _____________          14-16.                                          13          (identifying enforcement schemes under  FWPCA and MPRSA); Garcia,                                                                    ______          761 F.2d at 83 (RCRA-enforcement provisions).                    Finally,  even  assuming a  "fundamental constitutional          right"  to safe  public drinking  water, it  would not  alter the          present analysis.  Comprehensive federal statutory schemes,  such          as the SDWA,  preclude rights  of action under  section 1983  for          alleged  deprivations  of  constitutional  rights  in  the  field          occupied by the federal statutory scheme.  See Smith v. Robinson,                                                     ___ _____    ________          468 U.S.  992 (1984) (Education  of the Handicapped  Act provides          exclusive  remedy even  where  plaintiffs  assert  constitutional          claims); Brown v. General  Services Administration, 425 U.S. 820,                   _____    ________________________________          824-25 (1976) (  717 of the Civil Rights Act of 1964, as added by            11 of the  Equal Employment Opportunity  Act of 1972,  provides          exclusive remedy for challenging racial discrimination in federal          employment even  though alleged discrimination  "clearly violated          . . . the Constitution"); Zombro  v. Baltimore City Police Dept.,                                    ______     ___________________________          868 F.2d 1364 (4th Cir. 1989) (ADEA), cert. denied,  493 U.S. 850                                                ____  ______          (1989).          B.  The SDWA          B.  The SDWA              ________                    Having  determined  that  appellants'  only  actionable          federal claim arose  under the SDWA,  the district court  granted          summary judgment to all  defendants-appellees except the City, on          the  ground that  appellants had  failed to  abide by  the SDWA's          notice  provision.   We  need not  reach  the SDWA  notice issue,          however,  as we  agree with  the  district court  that appellants                                          14          failed  to demonstrate  a genuine  issue of  material fact  as to          whether there was an "ongoing" violation as required by the SDWA.                    The SDWA allows  citizens' suits  against persons  "al-          leged to be  in violation  of any requirements  prescribed by  or                __ __  __ _________          under this subchapter . . ."   42 U.S.C.   300j-8(a)(1) (emphasis          added).  The Supreme  Court has construed the identical  language          in the FWPCA, see  33 U.S.C.   1365(a), as not  authorizing citi-                        ___          zens'  suits absent  a  "continuous  or intermittent  violation."          Gwaltney of Smithfield, Ltd.  v. Chesapeake Bay Foundation, Inc.,          ____________________________     _______________________________          484 U.S.  49, 64 (1987).   "[T]he harm sought to  be addressed by          the citizen  suit lies in the  present or the future,  not in the          past."  Id. at 59.7                  ___                    Appellants  do  not  disagree  that  Gwaltney  governs.                                                         ________          Rather, as appellants see it, all Gwaltney requires is an allega-                                            ________                _______          tion of  "continuous or intermittent  violation."  As  their com-          ____          plaint included such an allegation, appellants claim the district          court  improperly  extended Gwaltney  by requiring  appellants to                                      ________          provide  evidence  of an  ongoing  violation  in order  to  avoid          summary judgment on their SDWA claims.  As appellants  character-          ize it, the district court ruling caused their "initial jurisdic-          tion to disappear."                                        ____________________               7As the Supreme Court noted, congressional use of the phrase          "to  be in violation" cannot be discounted as incidental.  Gwalt-                                                                     ______          ney, 484 U.S. at 57.  The same phrase is  found in other environ-          ___          mental statutes.   See Clean Air Act,  42 U.S.C.   7604; RCRA, 42                             ___          U.S.C.    6972 (1982 ed. and Supp. III); Toxic Substances Control          Act, 15 U.S.C.   2619 (1982 ed. and Supp. IV).                                          15                    Appellants'  characterization of  the issue  reflects a          fundamental misunderstanding of summary judgment procedure.  Upon          a properly  supported motion  for summary judgment,  the opposing          party  can avoid  summary  judgment only  by presenting  evidence          sufficient to  establish  the existence  of  a genuine  issue  of          material  fact as to each element  essential to its claim.  Price                                                                      _____          v.  General Motors  Corp.,  931 F.2d  162,  164 (1st  Cir.  1991)              _____________________          ("nonmoving  party cannot  fend  off summary  judgment unless  it          makes a  competent demonstration that every  essential element of                                                _____  _________ _______          its  claim  or defense  is  at least  trialworthy")  (emphasis in          original).8  As plaintiffs-appellants produced no  expert affida-          vits, testimony, documentation or  other evidence that could lead          a  rational  trier of  fact to  find  an "on-going"  violation, a          jurisdictional  prerequisite  to  the maintenance  of  their SDWA          claim, summary judgment was properly granted for all defendants.          C.  Restrictions on Discovery          C.  Restrictions on Discovery              _________________________                    Appellants  claim that  the district  court prematurely          curtailed discovery  as of  January 1991, which  prejudiced their          ability  to  authenticate  documents  needed  to  oppose  summary          judgment.   As  a  consequence, the  magistrate judge  struck the          unauthenticated documents for failure to meet the requirements of                                        ____________________               8The  City  contended  that  plaintiffs'  allegation  of  an          ongoing violation was a  "sham."  The City supported  its conten-          tion with an  affidavit from  the City  engineer, attesting  that          "[t]o my knowledge, since 1986, there has [sic] been no document-                                                               __          ed water borne instances of giardiasis resulting from the City of          Pittsfield's drinking water supply."  (Emphasis in original.)                                          16          Fed. R. Civ. P. 56(3).  See Fed. R. Civ. P. 56(e) ("When a motion                                  ___          for  summary judgment is made  and supported as  provided in this          rule, an adverse party may not rest upon  the mere allegations or          denials of the adverse party's pleadings, but the adverse party's          response,  by affidavits or  as otherwise provided  in this rule,                     __ __________ __  __ _________ ________  __ ____ ____          must set forth  specific facts  showing that there  is a  genuine          issue for trial") (emphasis  added).9  Appellants likewise object          to the  district court's  refusal to permit  expert discovery  to          begin until  after the  non-expert discovery had  been concluded.          The summary judgment motions were granted before expert discovery          ever took place.10                    Federal Rule 56(f) offers a "procedural 'escape  hatch'          for a  party who  genuinely requires  additional time to  marshal          'facts essential to justify  [its] opposition' when confronted by          a summary judgment motion."  Paterson-Leitch Co. v. Massachusetts                                       ___________________    _____________          Municipal Wholesale Electric  Co., 840  F.2d 985,  988 (1st  Cir.          _________________________________          1988)  (quoting Hebert v. Wicklund,  744 F.2d 218,  221 (1st Cir.                          ______    ________          1984)).   Under Rule 56(f),  "[t]he movant must  (1) articulate a          plausible basis for the  belief that discoverable materials exist                                        ____________________               9Appellants  raise  no  direct  challenge to  the  order  to          strike.               10On  February 9, 1990,  the  magistrate  judge stated  that          expert discovery  would take place  only after the  completion of          non-expert discovery and to the extent that  summary judgment had          not already been granted to any of the defendants.  On January 7,          1991,  the same  day  on which  he  recommended the  granting  of          summary judgment  to all defendants, the  magistrate judge stayed          all  further  discovery.   The  plaintiffs'  request for  further          discovery was  denied by the  magistrate judge on  July 16, 1991,          and  affirmed by the district court on November 13, 1991, the day          the court granted summary judgment to the defendants.                                          17          which would raise a trialworthy issue, and (2) 'demonstrate  good          cause  for failure  to  have conducted  the discovery  earlier.'"          Price,  931 F.2d  at  164 (quoting  Paterson-Leitch, 840  F.2d at          _____                               _______________          988).   Orders denying relief  under Rule 56(f)  are reviewed for          abuse of  discretion.  Id. at  164; Bank One Texas,  N.A. v. A.J.                                 ___          _____________________    ____          Warehouse, Inc., 968 F.2d 94, 100 (1st Cir. 1992).          _______________                    The affidavit  appellants presented in support of their          motion for relief under Rule 56(f)  did little more than list the          witnesses appellants wished to depose, and allege "[t]hat because          of the complexity of the case and the number of parties involved,          the parties  have not  yet completed  discovery."   The affidavit          presented no plausible basis for asserting a belief  that "speci-          fied"  discoverable facts probably existed.  See Paterson-Leitch,                                                       ___ _______________          840  F.2d at 988  (Rule 56(f)  affidavit "should  articulate some          plausible  basis  for the  party's  belief  that specified  'dis-                                                           _________          coverable' material  facts likely exist") (emphasis  added).  Nor          did the  affidavit demonstrate a realistic  prospect that further          discovery would disclose evidence sufficient to defeat the motion          for summary  judgment, which was granted largely  on legal rather          than factual  grounds.   Particularly, and most  importantly, the          Rule 56(f)  affidavit merely conjectures that  something might be          discovered  but provides  no realistic  basis for  believing that          further  discovery would  disclose  evidence of  an ongoing  SDWA                                                              _______  ____          violation    without  which there  could be no  genuine issue  of          _________          material  fact for trial.   No document stricken  by the district          court under Rule 56(e)  pertained to the existence of  an ongoing                                          18          SDWA violation.   Furthermore, appellants failed  to identify any                                                               ________          specific fact  they would  expect to  discover, even  though they          were forewarned  by the magistrate  judge that their  reliance on          Rule 56(f) relief  would oblige them  "to specify precisely  what          information  they  have reasonable  grounds  to  expect would  be          disclosed that  would generate  genuine and material  disputes of          fact."                    Finally,  appellants  ascribe  no  "cause"   for  their          failure to complete non-expert discovery, except for the complex-          ity of  the case.   The case  did indeed involve  complex issues.          Nevertheless, more  than two  and one-half years  elapsed between          the  filing of  the original  complaint and  the granting  of the          motion for summary judgment, and summary judgment was not granted          until  more than  a year  after appellants  were made  aware that          summary  judgment would be sought.  We believe the district court          allowed  appellants ample  time for  adequate non-expert  discov-          ery;11  it did not abuse  its discretion by  declining Rule 56(f)          relief from their own lack of  diligence.  See Price, 931 F.2d at                                                     ___ _____          164  (no abuse of discretion  in refusing Rule  56(f) relief from          plaintiff's own "lack of diligence").                    The district court judgment is affirmed.                    _______________________________________                                        ____________________               11Although appellants  assert that  they were  prejudiced by          the lack  of opportunity to conduct discovery  relating to appel-          lees'  expert  witnesses,  the  availability of  the  information          needed to defeat  summary judgment did not  depend on appellants'          ability to depose defendants'  experts.  Appellants were  free to          submit affidavits from their  own experts as to the  existence of          an  ongoing violation, see Fed.  R. Civ. P.  56(e), yet none were                                 ___          forthcoming.                                          19
