Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 869 F.2d 1498 (9th Cir. 1989)

Ratinavelu RAMACHANDRAN, Plaintiff-Appellant,v.SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, Defendant-Appellee.

No. 87-6152.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1989.Decided Feb. 24, 1989.

Before WALLACE, CANBY and TROTT, Circuit Judges.


For the reasons stated by the district judge, we affirm the court's ruling that Ramachandran failed to establish a prima facie case of discrimination on each theory raised.

On appeal, Ramachandran raises the issue of whether the district court erred in granting summary judgment against him without giving appropriate consideration of alleged discovery abuses by the Transit District. In particular, Ramachandran claims summary judgment was premature because it was granted when he was in the middle of discovery. Under the Federal Rules of Civil Procedure (Fed. R. Civ. P.), a party opposing a summary judgment may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). A safeguard against premature grants of summary judgment is set forth in Fed. R. Civ. P. 56(f) which allows the opposing party who has not had sufficient time to complete discovery, or otherwise marshal facts to oppose the motion, to apply for a continuance of the proceedings pending completion of discovery. Thi-Hawaii v. First Commerce Fin. Corp., 627 F.2d 991, 994 (9th Cir. 1980); Fed. R. Civ. P. 56(f). Rule 56(f) requires affidavits setting forth the particular facts expected from the opposing party's discovery. References in memoranda to a need for discovery do not qualify as motions under Rule 56(f). Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986).

Ramachandran failed to submit any evidence to show he was qualified for the job, and he failed to provide the court with a request to continue discovery setting forth what information was being sought and how it would preclude summary judgment. Ramachandran had ample opportunity in which to develop a material fact issue. He failed to do so. Accordingly, we hold this issue was not preserved because of the failure to comply with Rule 56(f).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.Rule 36-3