United States Court of Appeals For the First Circuit
INSTITUTO SOCIOECONÓMICO COMUNITARIO, INC., ET AL.,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]
Torruella, Selya and Howard, Circuit Judges.
Johanna M. Emmanuelli Huertas and Pedro Ortiz Álvarez, LLC on brief for appellant. Carlos George-Iguina and O'Neill & Borges, LLC on brief for appellees.
September 11, 2013
SELYA, Circuit Judge. When a party takes a languid
approach both to completing pretrial discovery and to the imminent
threat posed by a motion for summary judgment, bad things usually
happen. Although such a party may scramble valiantly to regain
lost ground, he should not be surprised to encounter an
inhospitable reception. "[C]ourts — like the Deity — are more
prone to help those who help themselves." Williams v. Drake, 146
F.3d 44 , 50 (1st Cir. 1998). So it is here.
The facts giving rise to the underlying litigation are
chronicled in the magistrate judge's report and recommendation, see
Rivera-Almodóvar v. Instituto Socioeconómico Comunitario, Inc., No.
10-1885, slip op. at 1-10 (D.P.R. July 5, 2012) (unpublished), and
it would be pleonastic to rehearse them here. We offer instead a
brief sketch limning the origin and travel of the case.
Plaintiff-appellant Betzaida Rivera-Almodóvar began
working for defendant-appellee Instituto Socioeconómico
Comunitario, Inc., commonly known by its acronym "INSEC," in 1988.
She worked her way up to a supervisory position. Over time,
however, storm clouds gathered; starting in 2003, employees under
her charge began complaining that she was guilty of misconduct,
mistreatment, and abuse. INSEC responded by meting out a series of
progressive disciplinary sanctions (including demotion and
suspension). When these measures proved ineffectual, INSEC
terminated the plaintiff's employment on August 10, 2009. It
premised this adverse employment action on performance-related
The plaintiff repaired to the federal district court.
She sued her employer and several of its hierarchs (collectively,
"INSEC"), alleging that she had been cashiered in violation of the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634,
and local law.
In its initial scheduling order, see Fed. R. Civ. P.
16(b), the district court set a discovery deadline of October 30,
2011. This deadline encompassed a period of more than a year after
the commencement of the action and more than seven months after the
initial scheduling conference itself. The order contained a stern
warning: any motion seeking to extend the discovery deadline must
show good cause and "must be filed well in advance of the
On October 12, 2011, the plaintiff filed an unopposed
motion to extend the discovery deadline to November 15, alluding,
inter alia, to an unanswered discovery request. That request
sought production of various documents including contracts,
grievances and information about certain personnel actions. The
plaintiff averred that production of these documents was a
necessary prerequisite to the taking of two anticipated
depositions. The district court allowed the extension.
At the end of October, INSEC delivered several documents
to the plaintiff. On November 15 — the last day of the extended
discovery period — the plaintiff claimed for the first time that
these documents were not responsive to her August 19 request for
production. At 7:38 p.m. on that evening, her attorney sent an e-
mail to this effect to opposing counsel. INSEC did not respond,
and the discovery period expired.
Two days later, the plaintiff moved for a further
extension of the deadline. She again cited her need for the
requested documents and the two depositions. INSEC opposed the
motion, maintaining that the plaintiff had been accorded ample time
to conduct discovery and that her professed plight was attributable
to her own lack of diligence. INSEC also noted that most of the
requested documents did not exist and that others were so vaguely
described that compliance was impossible.
Acting pursuant to a reference order, see Fed. R. Civ. P.
72(a), a magistrate judge denied the extension motion on December
14, 2011. The magistrate judge wrote: "Plaintiff cannot simply sit
on her hands until after the discovery period has expired and then
claim that defendants have not complied with their discovery
In the meantime, INSEC had moved for summary judgment,
asserting that the plaintiff's unacceptable job performance, rather
than any age animus, led to her dismissal. The plaintiff responded
to both the magistrate judge's ruling and the summary judgment
motion by filing an omnibus motion entitled "Motion for
Reconsideration of Extension of Denial for Discovery and Under Rule
56(D); And Motion to Compel." This motion functioned not only as
a petition to reconsider the magistrate judge's ruling but also as
a request for relief under Rule 56(d).
In the motion, the plaintiff claimed that the court's
denial of her motion to extend discovery amounted to "harsh and
unusual punishment." She posited that INSEC's failure to
accomplish the document production left her "defenseless" and
unable to respond adequately to the summary judgment motion.
Accordingly, she beseeched the court to reconsider its denial of
her request to extend the discovery deadline, allow further
discovery, and defer a decision on summary judgment pursuant to
The magistrate judge summarily denied the plaintiff's
motion in all respects. He subsequently recommended the entry of
summary judgment in favor of INSEC on the plaintiff's ADEA claim.
Rivera-Almodóvar, supra, at 21. The district court adopted these
recommendations,1 and this timely appeal followed.
1 The magistrate judge also recommended that the claims under Puerto Rico law be dismissed without prejudice. Rivera-Almodóvar, supra, at 21. The district court, declining to exercise supplemental jurisdiction, see 28 U.S.C. § 1367(c), adopted this recommendation as well. This ruling is not challenged on appeal.
Before us, the plaintiff does not contest the merits of
the summary judgment order. Rather, she argues that the court
abused its discretion by denying (i) a discovery extension and (ii)
Rule 56(d) relief. We address these procedural arguments
A. Discovery Extension.
In passing upon the district court's refusal to extend
the discovery deadline, we bear in mind that review of a district
court's exercise of its case management authority is highly
deferential. See Thibeault v. Square D Co., 960 F.2d 239 , 242 (1st
Cir. 1992). Consequently, appellate review of a district court's
case management orders, such as a scheduling order, is solely for
abuse of discretion. See Vélez v. Awning Windows, Inc., 375 F.3d
35 , 41 (1st Cir. 2004).
In the ordinary course, a litigant who seeks an extension
of time must show good cause for the desired extension. See Fed.
R. Civ. P. 6(b)(1). But where, as here, the litigant is faced with
an expired deadline, more is required: she must show that her
failure to request an extension in a timeous manner constitutes
excusable neglect. See id.
In federal civil procedure, "excusable neglect" is a term
of art. It encompasses "inadvertence, mistake, or carelessness, as
well as . . . intervening circumstances beyond the party's
control." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380 , 388 (1993). Determining the existence vel
non of excusable neglect is an equitable exercise that takes into
account the totality of the circumstances. See id. at 395;
Nansamba v. N. Shore Med. Ctr., Inc., ___ F.3d ___, ___ (1st Cir.
2013) [No. 13-1266, slip op. at 10]. Even so, a lawyer's
"inattention or carelessness," without more, "normally does not
constitute 'excusable neglect.'" Dimmitt v. Ockenfels, 407 F.3d
21 , 24 (1st Cir. 2005).
Here, the plaintiff does not point to any relevant
circumstances that were beyond her control. She relies instead on
INSEC's alleged failure to comply promptly and fully with her
request for production of documents. We conclude, however, that
the district court had good reason to believe that the plaintiff's
plight was the result of her lackadaisical approach to discovery.
She sat on her hands for nearly a year before requesting the
disputed documents in August and then let her request linger during
the three months between its promulgation and the expiration of the
extended discovery deadline. The evidence of record indicates that
the only action that she took to procure these supposedly vital
documents prior to that looming deadline was an e-mail to opposing
counsel on the evening of the last day of the extended discovery
period.2 We think that the court below, in the exercise of its
discretion, was entitled to regard this last-minute effort as too
little and too late.
The plaintiff counters by noting that her first motion
for an extension of the discovery deadline mentioned her
outstanding discovery request. That motion, however, did not seek
either to compel discovery or otherwise to advance her outstanding
request. Merely alluding to the outstanding request in passing was
of little moment.
In an apparent attempt to divert attention from her
record of passivity, the plaintiff insists that obtaining the
sought-after discovery prior to the deadline would have required
heroic measures. This is important, she says, because "the burden
of compliance lies foremost with the party from whom the discovery
is sought." Carmona v. Toledo, 215 F.3d 124 , 135 (1st Cir. 2000)
(internal quotation mark omitted). We think that this is an overly
simplistic view. While a requestor may not be required to take
heroic measures to assure compliance, see id., she cannot simply
ask for discovery and then forget about it. See Rivera-Torres v.
Rey-Hernández, 502 F.3d 7 , 11 (1st Cir. 2007).
2 In their briefs, the parties dispute whether the plaintiff followed up via telephone regarding the outstanding documents. What is important for present purposes is that there is no evidence of record indicating any pursuit of these documents prior to the aforementioned e-mail.
The plaintiff's situation did not call for heroic
measures but, rather, for a routine motion to compel. See Fed. R.
Civ. P. 37(a). A motion to compel is a standard tool, well within
the capability of any reasonably diligent litigant. The Civil
Rules furnish litigants with this tool for a reason, and the tool
should be employed when — as in this case — its use is appropriate.
Of course, Rule 37 requires that a party who wants to
file a motion to compel must make a good faith effort to negotiate
with the nonresponsive party. See Fed. R. Civ. P. 37(a)(1);
D.P.R.R. 26(b). This requirement, the plaintiff laments, hampered
her ability to make a motion to compel because she could not
negotiate until she had figured out that the documents the
defendants produced at the end of October were nonresponsive to her
This lamentation is triply flawed. First, it overlooks
that the plaintiff did not seek production of the documents for
nearly a year after she brought suit. Second, it overlooks that
the plaintiff has offered no evidence that she did anything but sit
idly by from August until mid-November without trying either to
negotiate compliance or to compel production.3 Third, it overlooks
the absence of any explanation as to why it took the plaintiff over
3 While the good-faith provision of Rule 37(a)(1) serves a useful purpose, we do not think that it countenances the sort of hopeful waiting in which the plaintiff engaged here.
two weeks to match the documents produced with the demand for
The plaintiff's procrastination is especially egregious
in light of the district court's bold print warning that requests
for extensions of the discovery deadline were to be filed prior to
the expiration of that deadline. The plaintiff has shown no good
cause for disregarding this aposematic warning. Where, as here, a
district court in the exercise of its case-management authority
"sets a reasonable due date, parties should not be allowed casually
to flout it or painlessly to escape the foreseeable consequences of
noncompliance." Vélez, 375 F.3d at 41.
The plaintiff has a fallback position. She claims that
INSEC's objections to her discovery requests were overbroad and
lacked specificity. Regardless of whether this characterization is
accurate, it is beside the point. In assessing the district
court's decision to deny the plaintiff's untimely motion for an
extension, our focus is on the plaintiff's acts and omissions. Two
wrongs do not make a right, and nothing about INSEC's objections
explains the plaintiff's failure to make the slightest effort to
ensure that discovery was completed within the allotted timeframe.
To say more on this issue would be to paint the lily.
The short of it is that the denial of the plaintiff's untimely
motion for an extension fell within the broad compass of the
district court's discretion.
B. Rule 56(d).
We turn next to the plaintiff's entreaty that the
district court should have granted Rule 56(d) relief.4 Rule 56(d)
serves a valuable purpose. It protects a litigant who justifiably
needs additional time to respond in an effective manner to a
summary judgment motion. See Vargas-Ruiz v. Golden Arch Dev.,
Inc., 368 F.3d 1 , 3 (1st Cir. 2004). Such a need may arise
because, say, a party has not had a fair opportunity to conduct
necessary discovery. See Vélez, 375 F.3d at 39.
Rule 56(d) is not self-executing but, rather, must be
appropriately invoked. See id. In order to obtain its benefit,
the moving party must by affidavit or in some other authoritative
(i) explain his or her current inability to adduce the facts essential to filing an opposition, (ii) provide a plausible basis for believing that the sought-after facts can be assembled within a reasonable time, and (iii) indicate how those facts would influence the outcome of the pending summary judgment motion.
4 We have described the function of Rule 56(d), formerly Rule 56(f), in the following way: "if a party opposing summary judgment shows that, for specified reasons, it cannot present facts essential to justify its opposition, the court may grant appropriate relief." Jones v. Secord, 684 F.3d 1 , 6 (1st Cir. 2012) (internal quotation marks omitted). To avoid any confusion, we note that, notwithstanding the renumbering of the Rules, our earlier cases under former Rule 56(f) remain good law vis-à-vis current Rule 56(d). See Nieves-Romero v. United States, 715 F.3d 375 , 381 n.3 (1st Cir. 2013); see also Fed. R. Civ. P. 56 advisory committee's note.
Id. at 40.
But there is a caveat: the rule "is not designed to give
relief to those who sleep upon their rights." Rivera-Torres, 502
F.3d at 10. It follows that "a party seeking to derive the benefit
of [this rule] must demonstrate due diligence both in conducting
discovery before the emergence of the summary judgment motion and
in pursuing an extension of time once the motion has surfaced."
Id. at 11.
We review a district court's denial of a Rule 56(d)
motion for abuse of discretion. See id. at 10; Resolution Trust
Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198 , 1203 (1st Cir.
1994). We discern no abuse of discretion here.
To make use of Rule 56(d), a party "must demonstrate good
cause for failure to have conducted the discovery earlier."
Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d
985 , 988 (1st Cir. 1988). Here, the plaintiff's attempt to portray
herself as diligent for this purpose requires the same analysis as
did our examination of her professed diligence in seeking a further
extension of the discovery deadline. See supra Part II(A). Thus,
we need neither repastinate soil already well plowed nor construct
a lengthy exegesis explaining why the district court had room to
find that the plaintiff failed diligently to pursue discovery. As
recounted above, the plaintiff slumbered through discovery and
never seasonably availed herself of the discovery-enforcement tools
that were at her disposal. This sort of circumstance has
considerable force in our review of the denial of a Rule 56(d)
motion. See, e.g., Rivera-Torres, 502 F.3d at 11; Mass. Sch. of
Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26 , 45 (1st Cir.
1998). "Although a district court should generally apply Rule
[56(d)] liberally, the court need not employ the rule to spare
litigants from their own lack of diligence." Paterson-Leitch Co.,
840 F.2d at 989.
That ends this aspect of the matter. We conclude that
the plaintiff's lack of diligence in pursuing discovery was, on the
facts of this case, a sufficient reason for the district court, in
its discretion, to deny relief under Rule 56(d). After all, Rule
56(d) is meant "to minister to the vigilant, not to those who
slumber upon perceptible rights." Resolution Trust, 22 F.3d at
We need go no further. For the reasons elucidated above,
the judgment of the district court is