affirming denial of a motion to amend as futile where “plaintiff’s claims, even as amended, cannot survive [a dispositive motion]”
How later courts described this case
- affirming denial of a motion to amend as futile where “plaintiff’s claims, even as amended, cannot survive [a dispositive motion]”
- affirming denial of motion to amend as futile since “plaintiff’s claims, even as amended, cannot survive [a dispositive motion]”
- "A trial court is not barred in every case from granting summary judgment before discovery is completed." (citations omitted)
- noting that motion under either Rule 15(a) or (d) may be denied if proposed amendment futile
Written by the judges who cited it.
The opinion
Judge Greene
dissenting.
I disagree with the majority’s opinion that the court correctly denied plaintiffs’ motion for an extension of time under Rule 56(f).
I agree with the majority that the grassy knoll is not a public forum and that restrictions of expressive conduct on this public property can occur if the restrictions are reasonable and viewpoint-neutral. Krishna Society, 505 U.S. at —, 120 L. Ed. 2d at 550; Wiggins, 272 N.C. at 147-58, 158 S.E 2d at 37-45. I also agree that the trial court, as a general rule, is not required to wait until discovery is completed before entering summary judgment. Evans v. Appert, 91 N.C. App. 362, 368 , 372 S.E.2d 94, 97 , disc. rev. denied, 323 N.C. 623 , 374 S.E.2d 584 (1988). In those instances, however, where the uncompleted discovery relates to facts the movant asserts in support of the summary judgment motion and the party opposing the motion does not otherwise have access to the facts, the summary judgment motion should be continued “to permit . . . discovery to be had.” N.C.G.S. § 1A-1, Rule 56(f) (1990). This is especially so when the facts are within the sole control of the movant. Joyner v. Wilson Memorial Hosp., 38 N.C. App. 720, 723 , 248 S.E.2d 881, 882 (1978).
In this case, whether the restriction on the use of the grassy knoll was reasonable depends in large part on whether previous vigils on the grassy knoll caused serious disruptions within the prison. Indeed, *95 the majority determines that the denial of the permit was reasonable on the basis of “past disturbances” within the prison. The defendants presented affidavits showing that the previous vigils on the grassy knoll caused serious disruptions within the prison. This was information peculiarly within the control of the defendant. The plaintiffs requested a continuance of the summary judgment hearing in'order to pursue discovery of whether previous vigils had caused any disruptions within the prison. In support of their motion under Rule 56(f), plaintiffs submitted the affidavit of their attorney, William G. Simpson, Jr. His affidavit stated in pertinent part:
5. Plaintiffs seek to establish that the supposed risk of disruption within Central Prison did not justify denying plaintiffs’ request for access to the “grassy knoll” during the time of John Gardner’s execution.
10. The discovery requests filed by plaintiff seeks [sic] evidence that is relevant to defendants’ motion for summary judgment. In particular, plaintiffs seek information concerning the supposed risk of disruption purportedly relied upon by defendants to deny plaintiffs request for a permit. Plaintiffs also seek information and materials relevant to their claim of viewpoint discrimination.
The trial court denied the plaintiffs’ request for continuance, denied their request for discovery and entered summary judgment for the defendant.
It is true, as the majority states, that the “[p]laintiffs have not shown by affidavit, deposition or otherwise, any facts concerning past prison disruptions ....” Although they have not done so and may not be able to do so, they are entitled to an opportunity to discover if any such evidence exists. For these reasons the trial court erred in denying plaintiffs’ Rule 56(f) motion to continue the summary judgment hearing and their motion seeking discovery. The entry of summary judgment must therefore be vacated as it was premature. On remand the plaintiffs should be permitted reasonable discovery and then a new hearing on defendants’ summary judgment motion.