Diaz v. Johnson

Filing 40

MEMORANDUM AND ORDER denying 38 Motion to Extend. Ordered by Senior Judge Richard G. Kopf. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TELMA S. DIAZ,
Plaintiff,
v.
JEREMIAH D. JOHNSON,
Defendant.

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4:12CV3144
MEMORANDUM
AND ORDER

Plaintiff has filed a motion (filing 38) to extend the time for filing her response
to Defendant’s motion for summary judgment (filing 28). Plaintiff indicates in her
motion that she intends to depose Defendant and the Nebraska State Patrol records
custodian, but she has failed to file an affidavit or declaration establishing that such
discovery must be conducted before she can respond to Defendant’s motion for
summary judgment, which is based on the defense of qualified immunity.1 Indeed,
the record shows Plaintiff has already responded to Defendant’s motion by filing an
opposing brief (filing 33) and evidence index (filing 36) one day before filing the
motion for extension of time. Plaintiff’s failure to file a supporting affidavit or
declaration is fatal to her motion for extension of time. See Fed. R. Civ. P. 56(d)
(district court may allow time to take discovery “[i]f a nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot present facts essential to justify it
opposition” to a motion for summary judgment). Accordingly,
IT IS ORDERED that Plaintiff’s motion for extension of time (filing 38) is
denied.
February 22, 2013.

BY THE COURT:
Richard G. Kopf
Senior United States District Judge

1

Plaintiff merely references a brief she filed in opposition to Defendant’s
motion to stay discovery.