Staten, Mary v. Nissan North America

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 2, 2005
Decided June 14, 2005
Before
Hon. JOEL M. FLAUM, Chief Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-2233
MARY STATEN, Appeal from the United States
Plaintiff-Appellant, District Court for the Southern
District of Illinois.
v.
No. 02 CV 940 GPM
NISSAN NORTH AMERICA, INC.,
Defendant-Appellee. G. Patrick Murphy, Chief Judge.
ORDER
On May 27, 2002, Gloria Staten and two passengers, Mary and Pearlie
Staten, were injured in a rollover accident after a tire blew out on her 2001 Nissan
Sentra. The accident occurred near Warrenton, Missouri, about an hour west of St.
Louis. The Statens sued the tire maker, Bridgestone/Firestone, Inc., as well as the
car maker, Nissan North America, Inc. In January of 2004, the Statens settled
with Firestone. In the meantime, their case against Nissan lagged. In February of
2004, Nissan moved for summary judgment. The Statens did not respond but
instead filed a request for additional discovery under Federal Rule of Civil
Procedure 56(f). In March of 2004, the district court granted Nissan’s motion and
denied the Statens’ request for a continuance. Now, Mary Staten appeals those
decisions.
Staten first claims that the district court erred in ruling on Nissan's
summary judgment motion without giving her additional time to conduct discovery.
Federal Rule of Civil Procedure 56(f) authorizes a district court to deny or defer
No. 04-2233 2
ruling on a motion for summary judgment if the nonmovant submits an affidavit
demonstrating why further discovery is needed to oppose the motion. See Fed. R.
Civ. P. 56(f); Davis v. G.N. Mortgage Corp., 396 F.3d 869, 885 (7th Cir. 2005). We
review for abuse of discretion a district court's decision not to grant additional time
for discovery before ruling on a motion for summary judgment. Davis, 396 F.3d at
885.
Here, the district court afforded Staten ample opportunity to conduct
discovery relevant to her claims. Staten had 18 months but never identified an
expert or took a deposition, with no explanation for her inactivity. She does try to
pin the blame on Nissan, saying that it failed to make available its expert witness
for a deposition. But Staten’s counsel contributed largely to the proposed deposition
being cancelled by ignoring Nissan’s efforts to work out logistics. In addition,
Staten’s counsel failed to file a notice of deposition for this expert. But even if
Nissan was guilty of obstruction, that does not excuse Staten’s 18 months of relative
inactivity. Because it is clear that Straten was less than diligent in litigating her
claims against Nissan, the district court’s refusal to extend discovery was not an
abuse of discretion. See Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725, 733
(7th Cir. 2004) (denying a Rule 56(f) motion is not an abuse of discretion where
moving party’s lack of diligence is to blame for failure to obtain discoverable
information); see also Grayson v. O’Neill, 308 F.3d 808, 816 (7th Cir. 2002); Kalis v.
Colgate-Palmolive Co., 231 F.3d 1049, 1057 n.5 (7th Cir. 2000).
Moreover, as the district court correctly pointed out, Staten fails to
demonstrate how additional discovery would have made any difference. She does
assert generally that she needed more time to discover
(a) whether the seat belt adequately protected the
plaintiffs from injuries as a result of the accident; (b)
whether the tire should have failed especially in a new
car with only about 10,000 miles on it; (c) whether it was
technically feasible to warn a driver of tire failure so as to
allow her to take an appropriate remedial action; and (d)
whether a failure to the tire should have resulted in an
automobile rollover accident resulting in serious injuries.
But all this amounts to is a plea for more time to flesh out the general theories of
her case. Staten fails to identify what specific evidence she hoped to obtain to
create a genuine issue of material fact. Rule 56(f) does not allow a party to block
summary judgment simply by offering generalities about the need for further
discovery. E.g., Woods v. City of Chicago, 234 F.3d 979, 990-91 (7th Cir. 2000).
No. 04-2233 3
Staten next contends that the district court erred by entering summary
judgment in favor of Nissan. We review this decision de novo, viewing the evidence
in the light most favorable to Staten. E.g., Mateu-Anderegg v. School Dist., 304
F.3d 618, 623 (7th Cir. 2002). Summary judgment is appropriate if the record
shows that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). “The mere existence of an alleged factual
dispute will not defeat a summary judgment motion; instead, the nonmovant must
present definite, competent evidence in rebuttal.” Butts v. Aurora Health Care,
Inc., 387 F.3d 921, 924 (7th Cir. 2004). Here, there is no question that summary
judgment was appropriate. Nissan submitted an expert affidavit and other
evidence in support of its motion. But Staten offered no evidence to establish a
triable issue of fact; indeed, she did not respond at all, which justified summary
judgment for Nissan. See Fed. R. Civ. P. 56(e).
Finally, Staten argues, frivolously, that the district judge should have
recused himself under 28 U.S.C. § 455(a) for having ex parte communication with
Nissan’s counsel. According to Staten, the district judge talked privately with
Nissan’s lawyer in his chambers just before the hearing on Nissan’s summary
judgment motion. Thus, in Staten’s view, Chief Judge Murphy should have recused
himself, as his impartiality was reasonably in question. Initially, we do not have
appellate jurisdiction to even consider this challenge. Staten raised the issue in a
motion to amend the judgment under Federal Rule of Civil Procedure 59(e) but did
not identify the district court’s order denying that motion in her notice of appeal.
See Fed. R. App. P. 3(c)(1)(B). But even if we could review this argument, her claim
is baseless and unsubstantiated. Nissan’s counsel submitted an affidavit that he
met with Chief Judge Murphy to schedule a new trial date regarding another case,
with the consent of the other side, and Staten submitted no evidence suggesting
otherwise.
AFFIRMED.