Mark A. Nelson, Plaintiff-appellant, v. United States of America, Defendant-appellee, 117 F.3d 1425 (9th Cir. 1997)

Before: SCHROEDER, KLEINFELD, Circuit Judges, and WALLACH, U.S. Court of International Trade Judge.^** 

MEMORANDUM^* 

Mark A. Nelson appeals the district court's grant of summary judgment in favor of the United States, in Nelson's Federal Torts Claims Act ("FTCA") suit, 28 U.S.C. §§ 1346(b) and 2671, et seq. Nelson alleged malicious prosecution, negligence and intentional infliction of emotional distress, arising out of his indictment for extortion. The indictment was eventually dismissed without prejudice.

Nelson first challenges the district court's denial of his requests for discovery prior to responding to the government's motion for summary judgment. See Fed. R. Civ. P. 56(f). Nelson contends he was entitled to obtain the grand jury transcript in order to show that his indictment was obtained on the basis of misstatements, mischaracterizations, and omissions of clearly exculpatory facts. The district court did not err in refusing to allow Nelson to conduct discovery prior to responding to the government's motion for summary judgment because Nelson never filed a motion to compel before the discovery deadline passed. See Fed. R. Civ. P. 37(a).

On the merits, the district court correctly found that the grand jury had before it all the information the government had concerning Nelson's relationship to the other suspects. Therefore the grand jury was not misled either intentionally or unintentionally by the testimony of the FBI agent who instigated the investigation.

AFFIRMED.