FAULCONER v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC et al

Filing 46

ORDER denying Plaintiff's Rule 56(f)request. Ordered by U.S. District Judge Hugh Lawson on November 15, 2013. (mbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

NANCY FAULCONER,
Plaintiff,
v.

Civil Action No. 5:12-CV-246 (HL)

MORTGAGE
ELECTRONIC
REGISTRATION SYSTEMS, INC., HOME
AMERICA MORTGAGE, INC., U.S.
BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR TBW MORTGAGEBACKED TRUST SERIES 2007-2, TBW
MORTGAGE
PASS-THROUGH
CERTIFICATES, SERIES 2007-2, AND
AMERICAN
HOME
MORTGAGE
SERVICING, INC.,
Defendants.

ORDER
The Court has begun its consideration of Defendants’ Motion for Summary
Judgment (Doc. 30). In her response to Defendants’ motion, Plaintiff states that the
Court should deny Defendants’ motion and instead enter judgment in her favor under
Federal Rule of Civil Procedure 56(f).
Rule 56(f) allows the Court to grant summary judgment for the non-moving party
after giving notice and a reasonable time to respond. Fed.R.Civ.P. 56(f)(1). However,
Rule 56(f)(1) is an instrument for the Court’s use, not for a party’s use. It is not a
substitute for filing a motion for summary judgment or a cross-motion for summary
judgment. See, e.g., Nat’l Exch. Bank & Trust v. Petro-Chemicals Sys., Inc., No. 11-C134, 2013 WL 1858621, at *1 (E.D. Wis. May 1, 2013) (“Rule 56(f) exists largely for the

convenience of the court, to save it from proceeding with trials that it can readily see are
unnecessary. It did not create a substitute for a cross-motion to summary judgment. In
fact, the suggestion that a party could bring a motion for summary judgment under Rule
56(f)(1) would be a contradiction; Rule 56(f)(1) explicitly refers to the court’s authority to
grant relief for a non movant. If a party moved for summary judgment, by definition, it
cannot be considered a nonmovant and thus Rule 56(f)(1) would be inapplicable.”)
The deadline for filing a motion for summary judgment was August 14, 2013.
Plaintiff did not file a dispositive motion on or prior to that date. The deadline had
already passed when Plaintiff filed her response to Defendants’ motion, which is where
Plaintiff raised Rule 56(f)(1). What Plaintiff is attempting to do is file an untimely crossmotion for summary judgment, which will not be permitted. Plaintiff cannot side-step the
Court’s deadlines by inserting a passing reference to Rule 56(f)(1) in a response brief.
Plaintiff is hereby notified that the Court will not consider her Rule 56(f) request when
ruling on Defendants’ motion.
SO ORDERED, this the 15th day of November, 2013.
/s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
mbh

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