stating that the “relevant focus of analysis is the inherent duties of the position’in question, not the work actually performed by the person who happens to occupy the office”
How later courts described this case
- stating that the “relevant focus of analysis is the inherent duties of the position’in question, not the work actually performed by the person who happens to occupy the office”
- stating that where party files Rule 56(f) motion requesting further discovery, failure to permit continuance of discovery may constitute reversible error
- holding that politically motivated discharge of assistant prosecutors in Michigan does not offend First Amendment
- concluding that Connick does not mandate such a pleading requirement
Written by the judges who cited it.
The opinion
DAVID A. NELSON, Circuit Judge,
concurring.
Although I concur in the court’s disposition of the appeal and in the opinion, I write separately to offer some additional comments on the significance of the plaintiff-appellants’ failure to submit any affidavits in response to the defendant-appellees’ motion for dismissal and summary judgment.
In their response to the motion, the defendant-appellees stated that although a magistrate had entered an order allowing discovery to continue until March 1, 1990, “Defendants are unwilling to participate in discovery until Defendants’ current Motion is decided.” If, pursuant to Rule 56(f), Fed.R.Civ.P., the plaintiff-appellants had submitted an affidavit establishing, “for reasons stated,” that they “cannot ... present by affidavit facts essential to justify the ... opposition,” I believe it would have been reversible error for the trial court to have entered judgment for the defendants on the union-affiliation claim without ordering a continuance to permit the plaintiffs to take the deposition of defendant Marlinga. As I read the record, however, it contains no adequate explanation of the plaintiffs’ failure to depose Mr. Marlinga.
The fact that Mr. Marlinga may have been “unwilling” to participate in discovery means nothing. Under Rule 30, Fed.R. Civ.P., the plaintiff-appellants were entitled to take Mr. Marlinga’s deposition upon oral examination whether or not he wished to be deposed. The plaintiffs would not even have had to serve Mr. Marlinga with a subpoena; because he was a party, they merely had to give reasonable written notice, pursuant to Rule 30(b), Fed.R.Civ.P., of the time and place for the taking of the deposition. Had Mr. Marlinga failed to ap *427 pear at the stated time and place, the plaintiff-appellants would have been entitled to have his pleadings stricken. See C. Wright and A. Miller, Federal Practice and Procedure; Civil § 2107, n. 16.
The record does not indicate that the plaintiff-appellants ever gave notice of Mr. Marlinga’s deposition, and they clearly failed to make the kind of showing required by Rule 56(f). See Emmons v. McLaughlin, 874 F.2d 351, 356-57 (6th Cir. 1989) (“Appellant bore the burden,” under Rule 56(f), “to demonstrate to the district court ‘for reasons stated’ why he could not oppose the summary judgment motion by affidavit and how postponement of a ruling on the motion would enable him to rebut Appellee’s showing of the absence of a genuine issue of fact.”) Absent compliance with Rule 56(f), this court, in my view, has no alternative but to take the action described in the court’s opinion.