              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                              _______________

                                                m 99-10570
                                              Summary Calendar
                                              _______________

                                          MARY N. BROOKS,
                                                                 Plaintiff-Appellant,
                                                   VERSUS

                                     ZOLTEK CORPORATION,
                                                                 Defendant-Appellee.
                                       _________________________

                               Appeal from the United States District Court
                                   for the Northern District of Texas
                                            (1:98-CV-67-C)
                                    _________________________

                                              December 7, 1999

Before SMITH, BARKSDALE, and                             motion for summary judgment. On March 8,
PARKER, Circuit Judges.                                  Brooks filed a motion for continuance under
                                                         FED. R. CIV. P. 56(f), praying to be permitted
PER CURIAM:*                                             until June 15, 1999, to respond to the motion
                                                         for summary judgment with appropriate
   Mary Brooks was hired by Zoltek                       evidence. The motion was denied on March 9.
Corporation (“Zoltek”) on a probationary                 Brooks never responded to the summary
basis. Sixty days into her employment, she               judgment motion, and on April 14, 1999, the
was released on grounds of excessive                     motion was granted.
absenteeism. She sued under title VII and 42
U.S.C. § 1981.                                              Because Brooks provided no answer to the
                                                         motion for summary judgment, she provided,
   Brooks filed her complaint on March 19,               too, no evidence by which a genuine issue of
1998. Zoltek responded on August 5, 1998.                material fact could be created. The sole
The district court issued its scheduling order           question is whether the court erred in denying
on August 7, requiring that all motions,                 continuance until June 15, 1999, in which to
including summary judgment, be filed with                collect evidence and file a response. We
supporting briefs on February 16, 1999, and              review decisions regarding continuances for
that all discovery be completed by June 15,              abuse of discretion. Liquid Drill, Inc. v. U.S.
1999. On February 12, 1999, Zoltek filed a               Turnkey Exploration, Inc., 48 F.3d 927, 930
                                                         (5th Cir. 1995).
        *
          Pursuant to 5TH CIR. R. 47.5, the court has       In Liquid Drill, we faced a similar inquiry.
determined that this opinion should not be published     Plaintiffs sued in April 1990. In November
and is not precedent except under the limited            1990, the defendants moved for summary
circumstances set forth in 5TH CIR. R. 47.5.4.
judgment. In July 1991, the court granted                 Oftentimes, . . . the evidence which the
summary judgment.         Plaintiffs appealed,            nonmoving party could offer to create a
arguing in relevant part that the district court          factual dispute is in the exclusive
had erred in denying their motion to extend               possession of the moving party. Where
discovery. We affirmed, noting that by the                the party opposing the summary
time the district court had ruled on the                  judgment informs the court that its
summary judgment motion, it “had been                     diligent efforts to obtain evidence from
pending for seven months, and ample time and              the moving party have been
opportunity for discovery had already lapsed.”            unsuccessful, a continuance of a motion
Id.                                                       for summary judgment for purposes of
                                                          discovery should be granted almost as a
   Here, the court acted on the summary                   matter of course . . . . If, however, the
judgment motion only a little over two months             nonmoving party has not diligently
after it was filed. Brooks, however, had                  pursued discovery of that evidence, the
thirteen months from the filing of her                    court need not accommodate the
complaint until summary judgment issued in                nonmoving party’s belated request.
which to collect that modicum of evidence
necessary to avoid a summary judgment ruling.          International Shortstop, Inc. v. Rally’s Inc.,
Moreover, she had been warned as of August             939 F.2d 1257, 1267 (5th Cir. 1991) (citations
7, 1998, when the district court issued its            and quotations omitted; emphasis added).
scheduling order, that Zoltek would be filing a        Such is the case here.
summary judgment motion, should it so
choose, no later than February 16, 1999, and
thus she had a full seven months in which to
prepare for the entry of such an order.

   Brooks’s argument that the court should
have waited until the end of the period set for
discovery is without merit. The ten months
provided for undertaking discovery was the
time in which all discovery was to be
completed, not merely that minimum amount
necessary to avoid summary judgment.

    In a case in which the summary judgment
non-movant had managed to undertake at least
a little discovery before the summary judgment
motion was filed, and who then argued that
“they were entitled to rely on the scheduling
order, which permitted discovery to continue
until May, 1991,” we explained that “Rule 56
does not require that any discovery take place
before summary judgment can be granted; . . .
that more time was scheduled for discovery
does not, by itself, defeat summary judgment.”
Leatherman v. Tarrant County Narcotics and
Intelligence Coordination Unit, 28 F.3d 1388,
1396 (5th Cir. 1994) (emphasis added).
Rather, to gain a continuance, a plaintiff must
satisfy rule 56(f).       We have elsewhere
explained the criteria for gaining that
continuance.

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AFFIRMED.




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