                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                       F I L E D
                               In the                                  October 27, 2003
          United States Court of Appeals                          Charles R. Fulbruge III
                     for the Fifth Circuit                                Clerk
                         _______________

                           m 03-30287
                         Summary Calendar
                         _______________



                       KATHERINE TONNAS,

                                              Plaintiff-Appellant,

                              VERSUS

           STONEBRIDGE LIFE INSURANCE COMPANY,
        FORMERLY KNOWN AS J.C. PENNEY LIFE INSURANCE CO.,

                                              Defendant-
                                              Third Party Plaintiff-
                                              Appellee,

                              VERSUS

KYM ADAMS WRIGHT; CHERYL ANN ADAMS; SHEILA ADAMS SANDERS;
       GASKIN-SOUTHALL & ASSOCIATES MORTUARY, INC.

                                              Third Party Defendants-
                                              Appellees.


                   _________________________

             Appeal from the United States District Court
                for the Eastern District of Louisiana
                         m 02-CV-2453-M
                  _________________________
Before SMITH, DEMOSS, and STEWART,                         believed, ten days before Adams died, had re-
  Circuit Judges.                                          moved papers from a security box at the house
                                                           where Tonnas and Adams had lived. Tonnas
PER CURIAM:*                                               alleged that the security box “contained
                                                           documentary evidence which will show that
    Katherine Tonnas appeals a summary judg-               Ms. Tonnas is the beneficiary and entitled to
ment, complaining of the district court’s failure          any benefits due under the insurance policy.”
to address her FED. R. CIV. P. 56(f) motion                Secondly, Tonnas wished to depose Charles
seeking further discovery. Despite reluctance              Costa, the insurer’s Vice-President of Claims,
to “substitute our judgment for that of the dis-           to learn about the handling of the insurance
trict court” on matters such as this, we vacate            application and claims process regarding the
and remand. See Wichita Falls Office Assocs.               policy at issue.
v. Banc One Corp., 978 F.2d 915, 920 (5th
Cir. 1992).                                                    Without a hearing, the district court, in a
                                                           thirty-five-word order, granted summary judg-
                        I.                                 ment. It made no mention of the rule 56(f)
   Tonnas sued in state court to obtain the                motion.
proceeds from an insurance policy issued to
her then husband, John Adams, by the                                              II.
defendant insurer.1 Although Adams and Ton-                   We review for abuse of discretion the denial
nas later divorced, Tonnas maintained that she             of a rule 56(f) motion. Stearns Airport Equip.
remained the beneficiary. The suit was                     Co. v. FMC Corp., 170 F.3d 518, 534 (5th
removed to federal court, whereupon the                    Cir. 1999). “The purpose of Rule 56(f) is to
insurer filed a third party counterclaim against           provide non-movants with a much needed tool
three of Adams’s daughters2 and a funeral                  to keep open the doors of discovery in order
home. The daughters moved for summary                      to adequately combat a summary judgment
judgment.                                                  motion.” Wichita Falls Office Assocs., 978
                                                           F.2d at 919. Although an abuse of discretion
   In her opposition to summary judgment,                  standard leaves a district court with a certain
Tonnas moved, under rule 56(f), for additional             amount of freedom, such discretion “to deny
time, to take two depositions. First, she                  the requested extension is not entirely
wished to depose Sheila Sanders, who, Tonnas               unfettered.” Int’l Shortstop, Inc. v. Rally's,
                                                           Inc., 939 F.2d 1257, 1267 (5th Cir. 1991). A
                                                           “continuance of a motion for summary
   *
     Pursuant to 5TH CIR. R. 47.5, the court has           judgment for purposes of discovery should be
determined that this opinion should not be pub-            granted almost as a matter of course [unless]
lished and is not precedent except under the limited       the non-moving party has not diligently
circumstances set forth in 5TH CIR. R. 47.5.4.             pursued discovery of the evidence.” Id.
   1
     J.C. Penney Life Insurance Company even-
tually became Stonebridge Life Insurance Com-                 Wichita Falls Office Associates, 978 F.2d
pany.                                                      at 919, lists four requirements from
                                                           International Shortstop that a non-movant
   2
    Kym Adams Wright, Cheryl Ann Adams, and                must satisfy to receive a continuance under
Sheila Adams Sanders.

                                                       2
rule 56(f). First, he must request extended                   Even assuming, however, that a case may
discovery before the court rules on summary               be made for denying the rule 56(f) motion, the
judgment. Secondly, he must put the court on              district court failed to mention it. Its grant of
notice that further discovery relating to the             the summary judgment contained no reference
summary judgment motion is being sought.                  to the request for a delay in the summary judg-
Thirdly, he must show how the requested                   ment. Although a court has discretion to deny
discovery relates to the summary judgment                 a rule 56(f) motion and could reason that Ton-
motion. Finally, he must have acted in a                  nas has failed to met one of International
diligent fashion so as not to have put himself in         Shortstop’s requirements, the courts’
the current position through inaction. Id.                reasoning normally should appear, in some
(quoting Int’l Shortstop, 939 F.2d at 1268,               form, in the judicial record. The fact that
1267).                                                    Tonnas apparently met all the requirements to
                                                          receive a rule 56(f) extension makes the lack
    Tonnas satisfied all these requirements.              of a record of reasons for denying the
She made the rule 56(f) request as part of her            extension more perplexing. By acting without
memorandum in opposition to the motion for                indicating why it apparently denied the
summary judgment. The request expressly                   otherwise valid rule 56(f) motion, the court
stated what Tonnas wished to accomplish dur-              abused its discretion.
ing the extension and how the two depositions
would weaken appellees’ case for summary                     Consequently, the summary judgment is
judgment.3 Tonnas addit ionally included an               REVERSED, and this matter is REMANDED
affidavit that explained what she expected to             for further proceedings. We intimate no view
obtain through the depositions. Finally, she              on how the district court should rule on
seemingly did not behave in a slothful manner.            remand.
Her request to delay a summary judgment
ruling occurred three months before the
scheduled end of the discovery period. She
learned of an alleged eyewitness account of the
taking of the policy and spent some of the
intervening time attempting to contact that
alleged witness.




   3
      Tonnas stated that she wished to use the
depositions to prove the existence of a policy with
a specifically-designated beneficiary. Sanders
would be forced to bring what she took from the
safe deposit box, including the insurance policy.
Costa’s deposition would focus on whether the in-
surer actually issued a policy on Adams’s life.
Both documents would counter the insurer’s claim
that no documentation indicated that Tannas was
the designated beneficiary.

                                                      3
