Jackson v. Federal Expre

Filing

OPINION, the district court judgment is affirmed, by RKW, CJS, PWH, FILED.[1314973] [12-1475]

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12-1475-cv
Jackson v. Federal Express

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Argued:

January 15, 2014

Decided: September 9, 2014)

Docket No. 12-1475-cv
- - - - - - - - - - - - - - - MONIQUE JACKSON,
Plaintiff-Appellant,
v.
FEDERAL EXPRESS,
Defendant-Appellee.
- - - - - - - - - - - - - - - B e f o r e:

WINTER, STRAUB, and HALL, Circuit Judges.

Appeal from a grant of summary judgment by the United

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States District Court for the District of Connecticut (Robert

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N. Chatigny, Judge) dismissing appellant’s claims and denying

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her pro se request to reopen discovery.

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district court’s obligations in granting summary judgment where

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a motion for such judgment is fully or partially unopposed.

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affirm.

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We write to clarify a

EDWARD SCARVALONE, Doar Rieck Kaley
& Mack, LLC, New York, NY, for
Plaintiff-Appellant.
DAVID P. KNOX, Federal Express
Corporation, Memphis, TN, for
Defendant-Appellee.

We

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WINTER, Circuit Judge:
Monique Jackson appeals from Judge Chatigny’s grant of

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summary judgment dismissing her medical leave, disability,

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employment discrimination, and retaliation claims and denial of

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her pro se request to reopen discovery.

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obligations of a district court in granting summary judgement

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under Fed. R. Civ. P. 56.

We write to clarify the

We affirm.
BACKGROUND

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We view the record in the light most favorable to appellant.

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Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223-

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ambiguities must be resolved and all inferences drawn in favor

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of” the non-moving party).

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unless noted otherwise.

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The following facts are undisputed,

Appellant is an African-American woman who worked as a

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senior service agent at Federal Express (“FedEx”) from 1996 to

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May 2007.

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(“HR”) complaint against her manager, Franklin Benjamin, claiming

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that he sexually harassed her, and against the operations

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manager, Billy Lipscomb, claiming that he ignored her complaints.

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Both managers were subsequently transferred to different

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facilities.

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supervised by new managers, Ralph Sylvester became appellant’s

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direct manager.

In 2006, appellant filed an internal human resources

After a short interval during which appellant was

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FedEx’s termination policy provides that “if an employee

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receives any combination of three warning letters or performance

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counseling letters in a twelve-month period, the employee is

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subject to termination.”

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times between September 2006 and May 2007, FedEx terminated her.

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After appellant was disciplined five

On March 16, 2010, appellant filed the present complaint

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against FedEx alleging, inter alia, that Sylvester and Benjamin

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were friends and that Sylvester terminated her in retaliation for

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complaining about Benjamin’s sexual harassment.

The complaint

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further alleged that Sylvester used racial slurs in her presence,

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pressured her to return to work while she was on medical leave

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recovering from an automobile accident, refused to accommodate

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her work to lingering injuries after she returned, and terminated

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her in part because of her age and race.

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claims for:

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sexual harassment, 42 U.S.C. § 2003e-3(a); (ii) termination

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because of her race, 42 U.S.C. § 2003e-2(a); (iii) violation of

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the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.; (iv)

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violation of the Americans with Disabilities Act, 42 U.S.C. §

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1201.01 et seq.; and (v) age discrimination, 42 U.S.C. § 610 et

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seq.

The complaint asserted

(i) retaliation for filing an internal complaint of

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After the court-ordered schedule of seven months for

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discovery had expired, FedEx moved for summary judgment on all

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claims.

In compliance with Fed. R. Civ. P. 56(c) and Local Rule
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56(a)(1), it submitted a statement of 124 facts that FedEx

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claimed to be undisputed.

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declarations from Sylvester and two FedEx HR managers and

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excerpts from appellant’s deposition.

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assertions cited specific support in the record.

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through counsel, responded with a Local Rule 56(a)(2) statement

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of undisputed and disputed facts, additional documentary

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evidence, and an opposition brief.

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statement explicitly admitted 111 of FedEx’s statements of

The motion was accompanied by sworn

Each of the 124 factual
Appellant,

Appellant’s Rule 56(a)(2)

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undisputed facts and denied 13.

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numerous matters undermining appellant’s non-retaliation claims.

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Details are discussed infra.

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investigation of Benjamin’s conduct, Sylvester’s use of racial

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epithets, and the circumstances of appellant’s termination.

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II of her response to FexEx’s statement of undisputed facts

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claimed that the following “issues of material fact” were

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disputed:

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The admitted facts included

The denials concerned the

1. Plaintiff filed a harassment
complaint against a FEDEX employee in
February of 2000 [sic], after which, her
performance rating declined. . . . The
decline was motivated, in part, by the
filing of the internal complaint.
2. When Plaintiff “zeroed” timecards in
March of 2007, and was reprimanded for
it, she did so under the express
instruction of Sylvester. . . .
Sylvester’s motivation to write-up and
subsequently terminate Jackson was . . .
motivated, in large part, to retaliate
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Part

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Her opposition brief stated that “[d]iscovery has yielded the

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existence of issues of fact with respect to one of [appellant’s]

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claims:

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should be denied as to that claim.

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against Jackson for filing an internal
complaint against Benjamin.

Title VII retaliation,” and argued that summary judgment

The district court concluded that appellant “tacitly admits
that there are no issues of fact with regard to the [non-

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retaliation] claims,” and dismissed them “in the absence of

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opposition.”

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statement of undisputed facts and confirmed the lack of a dispute

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as to those facts.

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VII retaliation claim in detail and granted summary judgment in

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favor of FedEx on that claim.

It also noted that it had “[r]eview[ed]” appellee’s

The district court then discussed the Title

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While the motion for summary judgment was briefed and

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pending, appellant, acting pro se although still represented by

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counsel, filed a request to reopen discovery in order to permit

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the deposition of certain FedEx employees, including Ralph

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Sylvester, and to obtain time-keeping reports (“FAMIS reports”)

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that appellant had prepared.

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court that her attorney “failed to subpoena [her] former

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operational manager Ralph Sylvester . . . [and] allow[ed]

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discovery to close on February 1, 2011.”

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to appellant because it was not signed by her counsel.

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responded with a letter to the court explaining that he had

Appellant stated in a letter to the

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The letter was returned
Counsel

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previously requested production of the FAMIS reports, but FedEx’s

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counsel had stated that “they were not in possession, custody, or

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control of this document.”

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of Sylvester was “largely unnecessary” because it likely would

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“be favorable to FedEx.”

He further stated that the deposition

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Appellant had sent a letter to her counsel, which predated

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the letter to the court, asking him to withdraw because she did

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not think he had her “best interest at heart” and that she was

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“truly dissatisfied that [he] allowed discovery to close” without

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the FAMIS reports.

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the district court granted the request on October 20, 2011.

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Appellant then filed a pro se motion to reopen discovery

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reiterating the reasons given in her previous letter.

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denied the motion in the order granting summary judgment.

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Appellant’s counsel moved to withdraw, and

Appellant then brought this appeal pro se.

The court

On November 13,

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2012, we dismissed appellant’s retaliation claim as lacking “an

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arguable basis in law or fact,” but we appointed pro bono counsel

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to brief the grant of summary judgment on the claims deemed

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abandoned by the district court.1

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DISCUSSION
a)

Summary Judgment on the Non-Retaliation Counts
We review a district court’s grant of summary judgement de

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We express our gratitude to counsel for this service.

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novo, because such a motion may be granted only when the moving

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party shows that there is no genuine dispute as to any material

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fact and it is entitled to judgment as a matter of law.

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Civ. P. 56; Amaker v. Foley, 274 F.3d 677, 680-81 (2d Cir. 2001).

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Relying on Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373

Fed. R.

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F.3d 241 (2d Cir. 2004), appellant argues the district court

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failed to carry out its responsibilities in entering summary

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judgment when, after a “review” of the assertions of undisputed

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facts, it dismissed the non-retaliation claims as “unopposed.”

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We disagree.
Rule 56 allows a party to seek a judgment before trial on

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the grounds that all facts relevant to a claim(s) or defense(s)

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are undisputed and that those facts entitle the party to the

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judgment sought.

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of facts deemed by the moving party to be undisputed must be

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submitted by that party for each such fact.

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56(c); D. Conn. Local R. 56(a)(1).

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reference admissible evidence (when presented at trial in the

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form of testimony or other permissible method) in the record

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tending to prove each such fact, e.g., deposition testimony,

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admissions, answers to interrogatories, affidavits, etc., see

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Fed. R. Civ. P. 56(c)(2) (nonmovant may object that cited

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material is inadmissible); D. Conn. Local R. 56(a)(3) (specific

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citation to evidence must be to “the affidavit of a witness

Vt. Teddy Bear, 373 F.3d at 244.

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A statement

Fed. R. Civ. P.

Such a statement must

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competent to testify as to the facts at trial” or to “evidence

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that would be admissible at trial”); Raskin v. Wyatt Co., 125

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F.3d 55, 66 (2d Cir. 1997) (“only admissible evidence need be

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considered by the trial court in ruling on a motion for summary

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judgment,” and the Federal Rules of Evidence govern such

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admissibility).

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motion.

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statements of undisputed facts proferred by the movant being

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deemed admitted.

The non-moving party need not respond to the

However, a non-response runs the risk of unresponded-to

Fed. R. Civ. P. 56(e)(2); see, e.g., Jones v.

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Lamont, No. 05 Civ. 8126, 2008 WL 2152130, at *1 (S.D.N.Y. 2008)

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(“In view of [pro se] plaintiff’s failure to respond to the

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motion, the well supported factual allegations set forth in

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defendants’ Rule 56.1 statement are deemed admitted.”), aff’d,

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379 Fed. App’x 58 (2d Cir. 2010).

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A non-response does not risk a default judgment, however.2

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See Vt. Teddy Bear, 373 F.3d at 246 (contrasting Rule 55 default

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with summary judgment requirements).

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be entered, the district court must ensure that each statement of

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material fact is supported by record evidence sufficient to

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satisfy the movant’s burden of production even if the statement

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is unopposed.

Before summary judgment may

Id. at 244 (district court must examine an

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As Vermont Teddy Bear discussed, many default rules such as Rule 55,
Rule 4(a), Rule 16(f), and Rule 37(b)(2) are based on the “ancient common law
axiom that a default is an admission of all well-pleaded allegations against
the defaulting party,” while “[m]otions for summary judgment . . . lack these
ancient common law roots.” 373 F.3d at 246.

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unopposed motion for summary judgment “to determine if it has met

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its burden of demonstrating that no material issue of fact

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remains for trial” and that “the citation to evidence in the

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record supports the [unopposed] assertion” (internal quotations

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omitted)).

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the record even if uncited.

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course, the court must determine whether the legal theory of the

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motion is sound.

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automatically grant summary judgment on a claim simply because

In doing so, the court may rely on other evidence in
Fed. R. Civ. P. 56(c)(3).

And, of

Thus, Rule 56 does not allow district courts to

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the summary judgment motion, or relevant part, is unopposed.

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However, as discussed infra, a partial response arguing that

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summary judgment should be denied as to some claims while not

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mentioning others may be deemed an abandonment of the unmentioned

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claims.

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In the present case, the district court fulfilled all these

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requirements.

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facts submitted by appellee, which included relevant citations to

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the record.

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appellee was entitled to judgment as a matter of law and granted

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summary judgment.

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was committed, but that the district court failed to write a

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sufficiently elaborate essay.

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It “[r]eview[ed]” the statement of undisputed

Based on those statements, it concluded that

Appellant argues, not that substantive error

Much of appellant’s argument rests on an overreading of
Vermont Teddy Bear.

That decision involved a pro se defendant
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who failed to oppose a Rule 56 motion and had a judgment entered

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against him that included, inter alia, a permanent injunction,

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statutory damages of $150,000, and reimbursement for litigation

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expenses.

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multi-factor balancing tests, the district court had simply

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endorsed the notice of motion as granted, with slight

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modifications.

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373 F.3d at 243.

Id.

Although the legal claims involved

We vacated and remanded.

Id. at 247.

We do not quarrel with Vermont Teddy Bear.

We simply hold

that it has no bearing on this case.
First, Vermont Teddy Bear involved a pro se litigant, and we

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are less demanding of such litigants generally, particularly

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where motions for summary judgment are concerned.

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IRS, 28 F.3d 6, 8 (2d Cir. 1994) (district court “should have

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afforded [pro se litigants] special solicitude before granting

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the . . . motion for summary judgment”); Tracy v. Freshwater, 623

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F.3d 90, 101-02 (2d Cir. 2010) (discussing various forms of

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solicitude shown to pro se litigants).

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court decision appeared to be the equivalent of a default

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judgment.

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for appellate review.

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in the present appeal.

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See Ruotolo v.

Second, the district

Third, this court was left without a record sufficient
None of these critical elements is found

First, appellant was represented by counsel during discovery

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and at the time of the motion for summary judgment.

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counsel responded to the motion, and the motion was fully
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Moreover,

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submitted before the conflict with appellant over discovery

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developed.

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pro se litigant understands the stakes in such a motion, see

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Ruotolo, 28 F.3d at 8 (“The failure of a district court to

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apprise pro se litigants of the consequences of failing to

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respond to a motion for summary judgment is ordinarily grounds

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for reversal.”), is simply irrelevant in the present matter.3

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Therefore, the concern we show over ensuring that a

Second, there is nothing in the record of this matter that

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suggests that the district court was entering a default judgment.

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The motion for summary judgment complied with Rule 56 and, unlike

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the circumstances in Giannullo v. City of New York, 322 F.3d 139,

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142 (2d Cir. 2003), each statement of proposed undisputed facts

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was supported by a citation to the record sufficient to prove
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We also note that, in Vermont Teddy Bear, the pro se was a defendant
who had had a serious judgment entered against him. A grant of summary
judgment to a plaintiff who bears the burden of proof of material facts must
be supported by a strong proffer of evidence. The evidentiary proffer
accompanying the motion must show the lack of any dispute of material facts
that the plaintiff-movant has the burden of proving and that those undisputed
facts entitle the plaintiff-movant to judgment. A defendant, of course, takes
a risk in not responding to such a motion but may still prevail because Rule
56 requires the court to examine and verify that the plaintiff-movant’s
submission suffices to support an entry of judgment. Vt. Teddy Bear, 373 F.3d
at 244 (citing Amaker, 274 F.3d at 681).
However, where, as here, a defendant moves for summary judgment against
a plaintiff who bears the burden of proving the factual elements of the claims
asserted, the risk of a plaintiff not opposing a motion in whole or in part is
even greater. To be sure, the district court must examine the defendantmovant’s submission for evidentiary and legal sufficiency. But when a
defendant-movant submits an evidentiary proffer sufficient to defeat a claim,
a plaintiff who bears the burden of proof cannot win without proffering
evidence sufficient to allow a trier of fact to find in its favor on each fact
material to its claim(s). See Powell v. Nat’l Bd of Med. Exam’rs, 364 F.3d 79,
84 (2d Cir. 2004) (once defendant-movant “demonstrates an absence of a genuine
issue of material fact,” plaintiff bears burden of production to show
“specific facts showing that there is a genuine issue for trial” for each such
fact). The present appeal is from the grant of just such a defendant’s
motion.

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each such fact.

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facts essential to each of her claims, made no proffer with

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regard to any of her claims except for the retaliation claim.

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The district court noted that its review of FedEx’s statements of

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undisputed facts confirmed the lack of any dispute of material

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facts with regard to the non-retaliation claims.

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of the term “unopposed” does not necessarily suggest a default

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rationale; it simply reflects the plain consequences of an

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appellant’s failing to make a sufficient response to a properly

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Appellant, who bore the burden of proving the

The court’s use

supported Rule 56 motion.
Moreover, there is a relevant distinction to be drawn

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between fully unopposed and partially opposed motions for summary

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judgment in counseled cases.

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is free to ignore it completely, thereby risking the admission of

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key facts and leaving it to the court to determine the legal

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merits of all claims or defenses on those admitted facts, a

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partial opposition may imply an abandonment of some claims or

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defenses.

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reflects a decision by a party’s attorney to pursue some claims

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or defenses and to abandon others.

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to include all possible claims or defenses, and parties are

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always free to abandon some of them.

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response to a motion for summary judgment is a particularly

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appropriate time for a non-movant party to decide whether to

While the opponent to such a motion

Generally, but perhaps not always, a partial response

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Pleadings often are designed

Moreover, preparation of a

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pursue or abandon some claims or defenses.

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known as a highly useful method of narrowing the issues for

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trial.

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Indeed, Rule 56 is

Where abandonment by a counseled party is not explicit but

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such an inference may be fairly drawn from the papers and

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circumstances viewed as a whole, district courts may conclude

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that abandonment was intended.

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proper here.

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proposed undisputed facts; appellant’s opposition brief noted

Such an inference would have been

Appellant’s counsel responded to each of Fed Ex’s

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that “discovery has yielded the existence of issues of fact with

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respect to one . . . claim[];” and the brief argued only that

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summary judgment should be denied as to that one claim.

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In contrast, Vermont Teddy Bear involved a motion totally

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unopposed by a pro se party, and the district court’s failure to

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analyze any of the complex legal and factual issues suggested

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that it had entered a default judgment.

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partial response had been made in Vermont Teddy Bear, an

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examination of the legal validity of an entry of summary judgment

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should have been made in light of the opposing party’s pro se

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status.

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Moreover, even if a

Rule 56 also requires that a grant or denial of summary

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judgment is accompanied by an explanation.

Fed. R. Civ. P.

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56(a).

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overlooked or an incorrect legal standard being applied, we do

However, absent some indication of a material issue being

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not require district courts to write elaborate essays using

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talismanic phrases.

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82, 87 (2d Cir. 2011) (“strong presumption” on review of

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sentencing that the district court “considered all arguments

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properly presented to [it], unless the record clearly suggests

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otherwise”); cf. In re Mazzeo, 167 F.3d 139, 142 (2d Cir. 1999)

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(Fed. R. Civ. P. 52(a) explanation of reasoning does not require

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“punctilious detail or slavish tracing of the claims issue by

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issue and witness by witness” (internal quotations and

See, e.g., United States v. Cossey, 632 F.3d

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alterations omitted)); Badgley v. Santacroce, 815 F.2d 888, 889

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(2d Cir. 1987) (same).

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sufficient to allow an informed appellate review, the subject to

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which we now turn.

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All that is required is a record

Unlike Vermont Teddy Bear, the record here is easily

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sufficient to allow an informed appellate review.

Appellant’s

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non-retaliation claims did not turn on multi-factor balancing

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legal tests or mixed issues of fact or law on which the movant

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bore the burden of proof.

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reasoning is perfectly obvious.

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the record reveals that plaintiff’s case, apart from the

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retaliation claim, collapsed with her deposition.

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deposition testimony contradicted important allegations in her

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complaint, e.g., she testified that she never heard Sylvester use

Here, the district court’s legal
Even a cursory examination of

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Plaintiff’s

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a racial epithet,4 did not believe that her termination was based

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on race or age, was not denied medical leave, was simply asked

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about her expectations for returning to work when on that leave,

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and was not asked to do work that her injury prevented.

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the critical facts asserted by FedEx as undisputed were,

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therefore, referenced to appellant’s deposition testimony.

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Most of

In such a case, there is no need for a district court to

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robotically replicate the defendant-movant’s statement of

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undisputed facts and references to the record or otherwise serve

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as an assistant to our law clerks.

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F.3d 171, 175, 177 (2d Cir. 2003) (“an opinion or lengthy order”

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is not required in every case, and review will proceed even in

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the face of inadequate findings by the district court “if we are

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able to discern enough solid facts from the record to permit us

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to render a decision” (quotations omitted)).

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our own responsibility to independently confirm the lack of a

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genuine dispute of material facts.

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grant of a motion for summary judgment is de novo, leaving a non-

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movant-appellant free to point out any perceived deficiencies in

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the movant-appellee’s summary judgment papers, and, there being

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no findings of fact subject to Rule 52(a)(6) plain error review,
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See Miranda v. Bennett, 322

After all, we have

Moreover, our review of a

Contrary to the allegations in the complaint, appellant specifically
denied hearing Sylvester “say anything that was racially derogatory or
racially prejudiced or biased.” She did mention one individual who allegedly
“heard [Sylvester] use the racial N word, something like that,” but her
deposition failed to identify a single admissible, non-hearsay-based incident
of racially derogatory language.

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leaving this court free to correct legal errors.

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identified in the present matter.

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None have been

To sum up, when a party, whether pro se or counseled, fails

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to respond to an opponent’s motion for summary judgment, a

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district court may not enter a default judgment.

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examine the movant’s statement of undisputed facts and the

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proferred record support and determine whether the movant is

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entitled to summary judgment.

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motion is made -- i.e., referencing some claims or defenses but

Rather, it must

Where a partial response to a

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not others –- a distinction between pro se and counseled

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responses is appropriate.

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court should examine every claim or defense with a view to

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determining whether summary judgment is legally and factually

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appropriate.

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court may, when appropriate, infer from a party’s partial

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opposition that relevant claims or defenses that are not defended

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have been abandoned.

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granted, the district court must provide an explanation

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sufficient to allow appellate review.

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where appropriate, include a finding of abandonment of undefended

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claims or defenses.

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In the case of a pro se, the district

In contrast, in the case of a counseled party, a

In all cases in which summary judgment is

This explanation should,

In the present matter, therefore, the process contemplated

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by Rule 56 has thus been satisfied with regard to dismissal of

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the non-retaliation claims.
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b)

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Reopening Discovery
We also affirm the district court’s decision to deny

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appellant’s pro se motion to reopen discovery.

We will

reverse

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a district court’s ruling regarding discovery only “upon a clear

5

showing of an abuse of discretion.”

6

151 F.3d 75, 79 (2d Cir. 1998).

In re DG Acquisition Corp.,

7

Relying on Dunton v. County of Suffolk, 729 F.2d 903 (2d

8

Cir. 1984), as amended, 748 F.2d 69 (2d Cir. 1984), appellant

9

argues that the district court abused its discretion in not

10

reopening discovery when it learned of a conflict between

11

appellant and her attorney.

12

ongoing conflict of interest between a defendant and his

13

attorney, who also represented the municipality.

14

denied that he had a strong interest in avoiding personal

15

liability under 42. U.S.C. § 1983 by arguing that he was acting

16

within the scope of his official duties, while the municipality

17

had a strong interest in avoiding liability under Monell by

18

arguing that he was acting on personal motives.

However, in Dunton, there was an

5

The defendant

Id. at 908-09.5

In Dunton, a municipality provided counsel to a police officer who,
upon seeing his wife engaged in illicit behavior in a car with another man,
pulled the man from the vehicle and beat him up. The officer in Dunton
alleged a current conflict of interest. He argued that, while it would have
been in his best interest to assert that he was entitled to qualified immunity
from Section 1983 liability because he was acting within the scope of his
duties, his attorney “repeatedly stat[ed] that [the officer] acted not as a
police officer but as an ‘irate husband.’” 729 F.2d at 907. The officer
argued that counsel, in doing so, was motivated to show that the officer was
not acting within the scope of his duties to avoid Monell liability for the
municipality. Id. at 907 (citing Monell v. Dep’t of Social Servs., 436 U.S.
658 (1978)). We held that there was an “imminent threat of serious conflict,

17

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1

The situation here, however, is a disagreement over legal

2

tactics, not a conflict of interest.

3

represented FedEx, and no motives-based conflict as in Dunton has

4

been alleged.

Appellant’s attorney never

5

Even if a client does have a disagreement with her attorney

6

on a matter such as the conduct of discovery, “all litigants are

7

‘bound by the concessions of freely retained counsel.’”

8

Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277,

9

289 (2d Cir. 2011) (quoting Hoodho v. Holder, 558 F.3d 184, 192

10

(2d Cir. 2009); see also Link v. Wabash R.R. Co., 370 U.S. 626,

11

634 (1962) (“[In] our system of representative litigation . . .

12

each party is deemed bound by the acts of his lawyer-agent.”).

13

Therefore, the district court correctly treated the pro se motion

14

as belatedly seeking to reopen discovery.

15

There was no abuse of discretion in the denial of the

16

motion.

Appellant and her attorney had seven months to conduct

17

discovery.

18

Espirit De Corp., 769 F.2d 919, 927 (2d Cir. 1985) (when a party

19

has “ample time in which to pursue the discovery that it now

20

claims is essential,” a district court has broad discretion to

21

deny a request for further discovery); see also Fed. R. Civ. P.

22

26(b)(2)(C)(ii) (court “must” limit scope of discovery where “the

See Burlington Coat Factory Warehouse Corp. v.

[and] disqualification would have been appropriate here even before any
proceedings began.” Id.

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1

party seeking discovery has had ample opportunity to obtain the

2

information by discovery in the action”).

3

discovery was over, and a fully briefed motion for summary

4

judgment was pending when the request to reopen was made.

5

reopening under those circumstances would seriously undermine the

6

orderly scheduling of discovery and summary judgment motions.

7

The scheduled time for

A

Moreover, no extra time would have produced the timecards

8

appellant requested because FedEx previously represented that

9

they did not have such materials.

Finally, the hoped-for-

10

tripping-up of Sylvester was the legal equivalent of a

11

potentially counterproductive -- in the revelation of more

12

adverse evidence -- lottery ticket of little value.

13

Appellant also argues that the district court abused its

14

discretion by only briefly stating its reasons for denying the

15

motion to reopen discovery.

16

court “substantially” adopted FedEx’s reasons for denying the

17

motion:

18

close of discovery and well past the scheduling order’s

19

deadlines; (ii) it “fail[ed] to demonstrate good cause for

20

reopening discovery”; and (iii) the motion was futile.

21

a district court is not required to “write an opinion or lengthy

22

order in every case,” and a court may “properly adopt a party’s

23

arguments on a given issue instead of issuing an order setting

24

out a free-standing elaboration of the court’s views.”

We again disagree.

The district

(i) the motion was untimely, filed nine months after the

19

However,

Miranda,

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322 F.3d at 177.

2

denying the request or in not elaborating on the obvious reasons

3

for denying it.6

4
5

The court did not abuse its discretion in

CONCLUSION
For the reasons stated, we affirm.

6

6

Appellant’s request that, if we remand, we also vacate the district
court’s November 2012 grant of summary judgment on the retaliation claim is
denied as moot.

20