Opposition Brief — First Floor Living, LLC, Petitioner v. City of Cleveland, Ohio, et al.

No. 23-1178

In the

Supreme Court of the United States

__________________

FIRST FLOOR LIVING, LLC,

Petitioner,

v.

CITY OF CLEVELAND, OHIO, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

__________________

BRIEF IN OPPOSITION FOR RESPONDENT

CITY OF CLEVELAND

__________________

ELENA N. BOOP*

Chief Trial Counsel

eboop@clevelandohio.gov

MATTHEW R. AUMANN

Assistant Director of Law

maumann@clevelandohio.gov

CITY OF CLEVELAND

DEPARTMENT OF LAW

601 Lakeside Ave. E., Rm. 106

Cleveland, Ohio 44114

(216) 664-3727

*Counsel of Record

for City of Cleveland

i

COUNTERSTATEMENT

OF QUESTIONS PRESENTED

Petitioner First Floor Living LLC provided the

following question presented:

Whether a trial court may enter summary

judgment—other than on purely legal grounds—

against a party when the court has not allowed that

party to discover information possessed by the

movant.

Respondent City of Cleveland objects. See Sup. Ct.

R. 15. The proposed question presented implies that

no discovery took place. That is not true. Cleveland

made substantial productions as initial disclosures

under Rule 26(a)(1). And First Floor conceded below

that it had much the information it needed, and

mostly wanted to test the authenticity of these

produced documents. The proposed question

presented also assumes that First Floor could have

made a sufficient showing under Rule 56(d) to create

a genuine dispute of material fact on the pending

motion for summary judgment. Again, this is not true.

For these reasons, Respondent City of Cleveland

objects to the proposed question presented by First

Floor, and provides an alternative question presented:

Did the Sixth Circuit correctly find that the

District Court did not abuse its discretion in denying

Petitioner’s Rule 56(d) motion and granting

Respondent City of Cleveland’s summary judgment

motion because (1) Petitioner failed to make a

ii

reasonably particularized showing of why it needed

additional discovery or the material facts it had hoped

to uncover, and (2) the requested discovery would not

have changed the outcome of the district court’s

ruling?

iii

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTIONS

PRESENTED ............................................................... i

TABLE OF AUTHORITIES ...................................... iv

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 3

A. District Court Proceedings ............................ 4

B. Court of Appeals Proceedings ....................... 6

REASONS FOR DENYING THE PETITION ........... 9

I.

The decision below was correct and consistent

with this Court’s precedent ................................. 9

II. There is no relevant Rule 56(d) circuit split ..... 11

III. Even if there is a circuit split, this case would

be a poor vehicle to address it ........................... 15

CONCLUSION ......................................................... 17

iv

TABLE OF AUTHORITIES

Cases

Adams v. C3 Pipeline Constr. Inc.,

30 F.4th 943 (10th Cir. 2021) ............................. 13

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ....................................... 10, 11

Celotex v. Catrett,

477 U.S. 317 (1986) ....................................... 10, 11

CenTra, Inc. v. Estrin,

538 F.3d 402 (6th Cir. 2008) ............................... 15

Cleveland Hous. Renewal Project v. Deutsche Bank

Tr. Co.,

606 F. Supp. 2d 698 (N.D. Ohio 2009),

vacated, 621 F.3d 554 (6th Cir. 2010) ................. 4

Compere v. Nusret Miami, LLC,

28 F.4th 1180 (11th Cir. 2022) ........................... 13

Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384 (1990) ............................................. 16

Dobbins v. Craycraft,

423 F. App’x 550 (6th Cir. 2011) ......................... 14

First National Bank of Arizona v. Cities Serv. Co.,

391 U.S. 253 (1968) ................................... 9, 10, 11

v

Goodman v. Diggs,

986 F.3d 493 (4th Cir. 2021) ......................... 13, 14

Haynes v. D.C. Water & Sewer Auth.,

924 F.3d 519 (D.C. Cir. 2019) ............................. 13

Highmark Inc. v. Allcare Health Mgmt. Sys., Inc.,

572 U.S. 559 (2014) ............................................. 16

Hodgin v. UTC Fire & Sec. Ams. Corp.,

885 F.3d 243 (4th Cir. 2018) ............................... 13

In re Dana Corp.,

574 F.3d 129 (2d Cir. 2009)................................. 12

In re Taylor,

548 F. App’x 822 (3d Cir. 2013) .......................... 12

Jones v. Secord,

684 F.3d 1 (1st Cir. 2012) ................................... 14

Marlow v. City of Clarendon,

78 F.4th 410 (8th Cir. 2023) ............................... 12

Midbrook Flowerbulbs Holland B.V. v. Holland Am.

Bulb Farms, Inc.,

874 F.3d 604 (9th Cir. 2017) ............................... 13

Pisano v. Strach,

743 F.3d 927 (4th Cir. 2014) ............................... 12

President & Fellows of Harvard Coll. v. Zurich Am.

Ins. Co.,

77 F.4th 33 (1st Cir. 2023) .................................. 12

vi

Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70 (1955) ............................................... 16

Sandusky Wellness Ctr., LLC v. Medco Health Sols.,

Inc.,

788 F. 3d 218 (6th Cir. 2015) .............................. 12

Shelton v. Bledsoe,

775 F.3d 554 (3d Cir. 2015)................................. 14

Smith v. OSF HealthCare Sys.,

933 F.3d 859 (7th Cir. 2019) ......................... 12, 13

Smith v. Reg’l Transit Auth.,

827 F.3d 412 (5th Cir. 2016) ............................... 12

White’s Landing Fisheries, Inc. v. Buchholzer,

29 F.3d 229 (6th Cir. 1994) ........................... 14, 15

Other Authorities

Fed. R. Civ. P. 10 .................................................. 3, 16

Fed. R. Civ. P. 56(d) ................................. 1-3, 5-7, 9-16

Fed. R. Civ. P. 56(f)..................................................... 9

O.R.C. 3103.09(k)(2) ................................................... 5

1

INTRODUCTION

Respondent City of Cleveland has pockets of

blighted homes. A blighted home causes problems

related to public health, property values, crime, and

more. It is a public nuisance. Cleveland, like other

cities, requires an owner to remediate the problem

property or face demolition. Cleveland identified the

Warner Road Property as a public nuisance to be

remediated or demolished. But before taking action, it

provided notice to the then-owner. This included

posting a notice on the property and sending a notice

by certified mail.

Even though the Warner Road Property was slated

for demolition, Petitioner First Floor Living LLC

bought it. So Cleveland took several more steps, as it

does for every new owner. First, it sent a notice by

certified mail to the Warner Road Property and to

First Floor. Second, it posted the notice on the

property given its routine practice of doing so. Third,

it searched its records for permits or other indicia that

the property was being improved in an effort to avoid

demolition.

With the notices out and no permits on record (and

no response from First Floor), the Warner Road

Property was demolished. Cleveland relied on these

efforts to show that it satisfied the notice requirement

of the Due Process Clause on summary judgment.

First Floor then moved for more discovery under

Fed. R. Civ. P. 56(d). But it failed to identify how

additional discovery would help. In fact, First Floor

2

conceded that “much of the information . . . lie[d] in

the possession of Plaintiffs.” First Floor instead sought

to review Cleveland’s “electronic file information and

metadata” related to Cleveland’s evidence, among

other things. First Floor failed to explain how this

additional discovery could overcome Cleveland’s

notice efforts.

The district court found, and the court of appeals

agreed, that First Floor’s proposed discovery could not

answer whether there was sufficient notice under the

Due Process Clause. That is because Cleveland’s

initial notice on the previous owner, perhaps alone,

but especially combined with Cleveland’s additional

steps to notify First Floor, were sufficient and

undisputed.

The petition concedes that Cleveland satisfied the

Due Process Clause. First Floor instead presents a

much narrower question: whether the district court

properly exercised its discretion under Fed. R. Civ. P.

56(d). It did. That is because the proposed discovery

was irrelevant and speculative; and First Floor had

failed to show how the proposed discovery would

change the outcome of the case. And important here,

this Court and all the circuits agree that a trial court

may deny a Rule 56(d) motion if a party fails to

identify the specific discovery sought and how that

discovery is essential. Because the lower court

decision was correct, and there is no circuit split, First

Floor’s petition should be denied.

First Floor argues that this Court should intervene

to resolve a Rule 56(d) circuit split. But the difference,

3

if any, goes to whether a party must formally move for

relief and attach a declaration, or if something less is

required. Yet First Floor moved and filed a

declaration. So even if there is a split, this case cannot

resolve it because First Floor took the most formal

approach. Therefore, the petition should be denied.

The other Rule 10 factors also favor denying the

petition. First, there is nothing important to the public

about the demolition of the Warner Road Property.

Second, Rule 56(d) motions are fact-specific inquiries

under the abuse of discretion standard, meaning there

would be no precedential value from this Court’s

involvement. And third, even though this Court is not

involved in error correction, First Floor still cannot

say how the additional discovery would change the

outcome here.

For these reasons, the petition should be denied.

STATEMENT OF THE CASE

Cleveland authorized the demolition of a blighted

and condemned property. On summary judgment, it

showed that it gave notice multiple ways beforehand.

In response, First Floor conceded that “much of the

information . . . lie[d] in the possession of Plaintiffs,”

yet moved for more unspecified discovery under Rule

56(d). The district court denied the motion and

granted summary judgment to Cleveland. The Sixth

Circuit affirmed. Because this Court and the circuit

courts agree that a trial court properly denies a

request for speculative or irrelevant discovery, First

Floor’s petition should be denied.

4

A. District Court Proceedings

This suit is about the demolition of a blighted

house. Following the 2008 financial crisis, state

leaders identified Cleveland and Cuyahoga County as

particularly hard hit. The Ohio General Assembly

created the first modern land bank to tackle blight and

the effects of rapid depopulation. See Cleveland Hous.

Renewal Project v. Deutsche Bank Tr. Co., 606 F. Supp.

2d 698, 715 (N.D. Ohio 2009) (noting that the

legislature initially only allowed counties with more

than 1.2 million people to create land banks, i.e.,

Cuyahoga County), vacated, 621 F.3d 554 (6th Cir.

2010). Northeast Ohio is still tackling the public

nuisance caused by blighted and vacant homes.

The Complaint was filed by two companies,

including First Floor. First Floor sued Cleveland

alleging, among other things, that the Warner Road

Property was demolished in violation of the Due

Process Clause. See D. Ct. Dkt. 1. First Floor also

named the Cuyahoga County Land Bank and those

that carried out the demolition. See Pet. App-29.

Cleveland answered and brought counterclaims for

the cost of demolition. See D. Ct. Dkt. 27. Cleveland’s

answer included its entire file related to the Warner

Road Property. The Parties exchanged initial

disclosures, where again Cleveland provided its

records.

Cleveland, eight months after the Complaint was

filed, moved for summary judgment. Cleveland

showed that in 2016 demolition notices were posted at

property and mailed and received by the then-owner,

5

the State of Ohio. D. Ct. Dkt. 33-4, 33-5. This served

as notice to all future owners under state law. See R.C.

3103.09(k)(2). Still, when the Warner Road Property

was purchased by First Floor, Cleveland sent notices

to the property and to First Floor. See App-49.

Cleveland also demonstrated that it has the routine

practice of posting the notice before demolition. So it

posted the notices to the Warner Road Property, just

like it did in 2016. See id. Finally, Cleveland searched

for permits recorded by First Floor that would have

allowed it to improve the property to avoid demolition.

See Pet. App-52. Finding none, and given the above

efforts, Cleveland argued on summary judgment that

it provided sufficient notice under the Due Process

Clause.

In response, First Floor and the second company

moved under Fed. R. Civ. P. 56(d) to conduct more

discovery. See D. Ct. Dkt. 41. They initially conceded

that “much of the information regarding the merits of

Plaintiff’s [sic] claims indeed did lie in the possession

of Plaintiffs.” See D. Ct. Dkt. 41-1. The companies then

failed to identify the discovery sought for each

property. But they collectively described seven areas

of potential investigation. D. Ct. Dkt. 41, PageID #

448. This ranged from metadata about the evidence

provided by Cleveland to identifying the individuals

who sent the specific notices. See id. But none of the

discovery could dispute that: (1) the Warner Road

Property notices were delivered in 2016 by mail and

posting, (2) mailings were again sent to the Warner

Road Property and First Floor, (3) no permits were

filed to allow for remediation, and (4) Cleveland’s

practice of posting notices.

6

The district court considered the Rule 56(d)

motion. See Pet. App-58. The district court identified

the five-part test used by the Sixth Circuit to test the

motion. See Pet. App-62. The court then found that,

given the specific evidence of notice efforts provided by

Cleveland, it would be a waste of resources for the

plaintiffs to “explore” the “notice regime generally.” Id.

The district court then denied the motion, and later

granted summary judgment to Cleveland and other

defendants as to the Due Process Clause and

remaining federal claims. Pet. App-28.

B. Court of Appeals Proceedings

On appeal, First Floor and the second company

argued that the district court erred by denying the

Rule 56(d) motion and granting the defendants’

motion for summary judgment. See App-4. First Floor

initially acknowledged a Rule 56(d) decision is

reviewed using the abuse of discretion standard. See

First Floor C.A. Brief 12. First Floor then argued that,

as a rule, a district abuses its discretion when no

discovery at all is allowed. Id. It then described the

discovery sought. This ranged from communications

between the defendants to more discovery on

Cleveland’s routine practice of issuing notices. Id at

15.

As for the grant of summary judgment, First Floor

argued that the earlier (and undisputed) posting to a

prior owner was insufficient under the Due Process

Clause. Id. at 19. But First Floor provided no reason

to doubt that Cleveland had a policy and practice of

posting and sending notices. See id. First Floor also

7

failed to address Cleveland’s search for permits. See

id.

The court of appeals affirmed the district court on

both issues. As to Rule 56(d), the court first observed

that a district court may deny a Rule 56(d) motion,

even if there is no discovery conducted by the

nonmoving party. Pet. App-13. This includes instances

where the motion is supported by conclusory

statements or would not have changed the outcome of

the case.

The court then closely reviewed the proposed

discovery. First, the court considered First Floor’s

desire for internal communications. The court

explained that these communications had no bearing

on Cleveland’s Due Process Clause obligation to

provide notice. Pet. App-14. Then the court turned to

First Floor’s other proposed discovery, such as to

confirm that there were no other “wrongful actions” by

Cleveland. Id. The court found this was too

speculative. Id. The court then concluded that First

Floor’s requested discovery was “irrelevant” to the

issue of “whether they received adequate notice” and

“would not have changed the outcome of the district

court’s ruling.” Id.

As for the merits, the court held that Cleveland’s

undisputed notice by mail and posting on the Warner

Road Property before being purchased by First Floor

satisfied the Due Process Clause’s notice requirement.

Pet. App-20. And as for Cleveland’s sent but

undelivered mail to the Warren Road Property and

First Floor, the court concluded that it was the last in

8

a series of efforts by Cleveland to provide notice. Pet.

App-21. These efforts, especially when combined with

Cleveland’s practice of sending and posting notice to

new owners, and First Floor’s lack of permits to

improve the property, showed that Cleveland provided

sufficient notice. Pet. App-22.

While the court affirmed, Judge Nalbandian issued

a dissent. Judge Nalbandian questioned (but did not

answer) whether too much time had passed between

the 2016 posting and the demolition. Pet. App-25. He

also gave credence to a declaration by someone who

lived around the corner from the Warner Road

Property and failed to see a posted notice driving by.

Pet App-26. Therefore, he would have returned the

case to the district court.

First Floor’s petition for certiorari followed.

9

REASONS FOR DENYING THE PETITION

Because under this Court’s precedent—and in

every circuit—a Rule 56(d) motion is properly denied

if a party seeks speculative or irrelevant discovery, the

petition should be denied.

I.

The decision below was correct and

consistent with this Court’s precedent.

The court of appeal’s decision is consistent with

this Court’s cases. Rule 56(d) requires a nonmovant to

show, for “specified reasons,” that it cannot present

facts “essential” to justify its opposition. Fed. R. Civ.

P. 56(d). This Court recognized long ago that Rule

56(d), then 56(f), requires more than speculation about

what might be discovered by a nonmovant—especially

if not essential to disposing the case. In First Nat.

Bank of Ariz. In First National Bank of Arizona v.

Cities Serv. Co., 391 U.S. 253, 294 (1968), for example,

this Court upheld a trial court’s decision to limit

discovery when the party already had the required

evidence that disposed of the claims. Id. The

petitioner’s “speculation” as to what additional

discovery would yield could not justify more discovery,

especially when that speculation is “not very

persuasive speculation at that . . . .” Id.

Here, the court of appeals found that it was within

the trial court’s discretion to disallow additional

discovery. As the court explained, First Floor’s wish

list, which included internal communications,

metadata, and evidence of wrongful actions, did not go

to the issue of adequate notice, and would not have

10

changed the outcome of the case. Pet. App-14. This is

particularly true given the evidence of notice:

(1) posting notice in 2016; (2) mailing notice in 2016;

(3) mailing notice in 2020 to the Warner Road

Property and First Floor; and (4) reviewing records to

ensure that First Floor did not obtain a permit as

required to avoid demolition. Pet. App-19-20. This is

in addition to the other evidence presented by

Cleveland, including the routine practice of posting

notice on the property before demotion. Pet. App-22.

For these reasons, just as in First National Bank of

Arizona, the trial court found that additional

speculative discovery was unnecessary here.

First Floor argues that this Court’s decisions in

Celotex and Anderson required its proposed discovery

of metadata and other exploration. Pet. 13. Not so.

Starting with Celotex v. Catrett, 477 U.S. 317 (1986),

this Court did not undermine Rule 56(d)’s

requirement that a party must explain why more

discovery is needed as to specific facts. Celotex instead

held that when a party moves for summary judgment

and explains that the opposing party cannot meet “an

essential element of her case”—as Cleveland did

here—summary judgment is required. 477 U.S. at

322-323. This disposes of “factually unsupported

claims . . . .” Id. at 323-324.

While Celotex did address concerns about a

premature motion for summary judgment, this Court

invoked Rule 56(d) as the proper method to evaluate

additional discovery. That is what happened here.

First Floor moved under Rule 56(d)but conceded that

it had “much of the information needed,” and failed to

11

specifically identify anything else. See D. Ct. Dkt. 411.

Similarly, in Anderson v. Liberty Lobby, Inc., 477

U.S. 242 (1986), this Court specifically acknowledged

that materiality is a key inquiry at the summary

judgment stage. Id. at 248. “Only disputes over facts

that might affect the outcome of the suit under the

governing law will properly preclude the entry of

summary judgment.” Id. As for Rule 56(d), this Court

footnoted that this subsection allows a nonmovant to

discover information that is “essential” to his claim.

Id., n.5. What the Anderson court did not hold is that

discovery of non-essential evidence is required before

summary judgment is entered.

Because this Court, in First National Bank of

Arizona, Celotex, and Andersen, never required a trial

court grant a Rule 56(d) motion when the discovery

sought is speculative or irrelevant, the decision below

was correct and followed this Court’s precedent.

II.

There is no relevant Rule 56(d) circuit

split.

First Floor urges this Court resolve a circuit split

about how much discovery is allowed before denying a

Rule 56(d) motion. Pet. 14. But the circuits agree that

Rule 56(d) does not require speculative or irrelevant

discovery. The only split identified by First Floor, if

any, is whether litigants must “submit a motion under

Rule 56(d),” which is a non-issue here. See Pet. 16.

12

The circuits agree that a trial court properly denies

a Rule 56(d) motion if speculative or irrelevant

information is sought, which was the case here. See,

e.g., President & Fellows of Harvard Coll. v. Zurich

Am. Ins. Co., 77 F.4th 33, 41 (1st Cir. 2023) (upholding

denied Rule 56(d) motion when “any evidence . . .

would have been irrelevant”); In re Dana Corp., 574

F.3d 129, 148–49 (2d Cir. 2009) (“court plainly has

discretion” to reject a request for discovery if the

“evidence sought would be cumulative” or “if the

request is based only on speculation as to what

potentially could be discovered”) (citations and

quotations omitted); In re Taylor, 548 F. App’x 822,

825 (3d Cir. 2013) (“Where information sought is not

relevant to the court’s inquiry, a Rule 56(d) motion for

discovery may be denied”); Pisano v. Strach, 743 F.3d

927, 931 (4th Cir. 2014) (“a court may deny a Rule

56(d) motion when the information sought would not

by itself create a genuine issue of material fact

sufficient for the nonmovant to survive summary

judgment”); Smith v. Reg’l Transit Auth., 827 F.3d

412, 423 (5th Cir. 2016) (“this court has found no

abuse of discretion where the party filing the Rule

56(d) motion has failed to identify sufficiently specific

or material evidence to affect a summary judgment

ruling.”); Sandusky Wellness Ctr., LLC v. Medco

Health Sols., Inc., 788 F.3d 218, 225 (6th Cir. 2015)

(sought discovery was “legally irrelevant”); Smith v.

OSF HealthCare Sys., 933 F.3d 859, 864–65 (7th Cir.

2019) (“a court need not delay decision on a summary

judgment motion to allow time for discovery on an

obviously meritless claim or defense”); Marlow v. City

of Clarendon, 78 F.4th 410, 417 (8th Cir. 2023)

(“Marlow did not explain how the evidence he sought

13

was relevant to rebut the defendants’ showing of the

absence of a genuine issue of fact.”) (cleaned up);

Midbrook Flowerbulbs Holland B.V. v. Holland Am.

Bulb Farms, Inc., 874 F.3d 604, 620 (9th Cir. 2017)

(“Because this fact was not relevant—let alone

‘essential’—to the issues raised by Midbrook’s motion

for summary judgment, the district court did not

abuse its discretion” in denying Rule 56(d) motion);

Adams v. C3 Pipeline Constr. Inc., 30 F.4th 943, 969

(10th Cir. 2021) (“counsel’s Rule 56(d) affidavit failed

to state with specificity how discovery would yield

probable facts that would rebut the summary

judgment motion”) (cleaned up); Compere v. Nusret

Miami, LLC, 28 F.4th 1180, 1189 (11th Cir. 2022)

(“Patel’s purported testimony would have made no

difference,” effectively upholding trial court’s denial of

Rule 56(d) motion); Haynes v. D.C. Water & Sewer

Auth., 924 F.3d 519, 531 (D.C. Cir. 2019) (upholding

denial of Rule 56(d) motion).

First Floor’s cited authority agrees that the

requested discovery cannot be speculative or

irrelevant, even if in that instance the court found that

a Rule 56(d) motion should have been granted. See,

e.g., Smith, 933 F.3d at 864–65; Goodman v. Diggs,

986 F.3d 493, 501 (4th Cir. 2021) (“[W]e have held that

a court may deny a Rule 56(d) motion ‘when the

information sought would not by itself create a

genuine issue of material fact sufficient for the

nonmovant to survive summary judgment.’”) (quoting

Hodgin v. UTC Fire & Sec. Ams. Corp., 885 F.3d 243,

250 (4th Cir. 2018)) (further citation omitted). There

is no dispute about the substance of a Rule 56(d)

showing.

14

Because there is no dispute about the substance of

evaluating a motion under Rule 56(d), First Floor

points to a potential procedural inconsistency,

specifically whether a motion and declaration are

required under Rule 56(d). Some circuits may be more

stringent about the technicalities of Rule 56(d) than

others. Compare Jones v. Secord, 684 F.3d 1, 6 (1st

Cir. 2012) with Shelton v. Bledsoe, 775 F.3d 554, 566

(3d Cir. 2015) (“[A] a formal motion is not required by

the Rule.”); Goodman v. Diggs, 986 F.3d 493, 501 (4th

Cir. 2021) (“We have not insisted on an affidavit in

technical accordance with Rule 56(d) . . . .”) (cleaned

up).

But First Floor’s proposed procedural conflict, if

any, has no bearing here. That is because First Floor

moved under Rule 56(d) and included a declaration.

See D. Ct. Dkt. 41-1. First Floor followed Rule 56(d)’s

formalities. Even if there is a circuit split about the

particularities of Rule 56(d) procedure, this case

cannot resolve it.

Finally, there is no inter-circuit split regarding

Rule 56(d) identified by First Floor. First Floor

compares decisions in White’s Landing Fisheries, Inc.

v. Buchholzer, 29 F.3d 229, 231 (6th Cir. 1994) and

Dobbins v. Craycraft, 423 F. App’x 550, 552 (6th Cir.

2011). But Dobbins is an unpublished decision so it

cannot create an inter-circuit conflict. And while First

Floor argues that White’s Landing requires granting a

Rule 56(d) at the outset of a case no matter what, that

is not true. Instead, the majority in that case

concluded the claim would be a “high hurdle” given the

evidence but fell short of calling the discovery

15

speculative or irrelevant. White’s Landing, 29 F.3d at

231. That said, the dissent disagreed. Id. at 233

(Enslen, J., dissenting) (“[D]iscovery on this ‘fact’ was

unnecessary as well, because it could not have altered

the outcome of the case.”).

More recent cases put White’s Landing in context:

no opportunity for discovery may be an abuse of

discretion; however, the Sixth Circuit will nonetheless

uphold a trial court when the proposed discovery is too

vague or would not change the outcome of the case.

CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir.

2008) (collecting cases, including White’s Landing).1

There is therefore no conflict in the Sixth Circuit, a

conclusion supported by the court’s en banc petition

denial.

Because all the circuits agree that Rule 56(d)

motions must outline proposed specific and relevant

discovery, and First Floor made its unsuccessful

request by motion supported by a declaration, the

petition should be denied.

III.

Even if there is a circuit split, this case

would be a poor vehicle to address it.

This case does not warrant this Court’s review

because the court of appeals correctly applied this

Court’s law and there is no circuit split. But there are

still more reasons to deny the petition.

1 This rule was further solidified by the 2009 amendment of Rule

56, which clarified that a party may move for summary judgment

at any time.

16

First, this case is a poor vehicle because Rule 56(d)

motions are reviewed using the abuse of discretion

standard. This deferential review gives the district

court the “necessary flexibility” to resolve questions

involving “narrow facts” that “utterly resist

generalization.” Cooter & Gell v. Hartmarx Corp., 496

U.S. 384, 404 (1990) (citation and quotation omitted).

And under this standard, testing the sufficiency of a

Rule 56(d) motion is “at heart, rooted in factual

determinations.” Highmark Inc. v. Allcare Health

Mgmt. Sys., Inc., 572 U.S. 559, 564 (2014) (citation and

quotations omitted). The fact-specific inquiry required

by Rule 56(d) would thus limit the precedential value

of any decision by this Court. Therefore, the petition

should be denied.

Second, First Floor still has not explained how this

additional discovery would impact the underlying

summary judgment in Cleveland’s favor. Thus, First

Floor asks this Court to engage in an “academic” or

“intellectually interesting” exercise rather than the

“special and important reasons” required by Rule 10.

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70, 74 (1955) (citations and quotations omitted). The

petition should therefore be denied for this reason too.

For these reasons, this Court should deny the

petition.

17

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

ELENA N. BOOP*

Chief Trial Counsel

eboop@clevelandohio.gov

MATTHEW R. AUMANN

Assistant Director of Law

maumann@clevelandohio.gov

CITY OF CLEVELAND

DEPARTMENT OF LAW

601 Lakeside Ave. E., Rm. 106

Cleveland, Ohio 44114

(216) 664-3727

*Counsel of Record

for City of Cleveland