Opposition Brief — Okocha v. Case Western Reserve University

No. 92-1147

IN THE

Supreme Court of the United States

October Term, 1992

NWABUEZE V. OKOCHA,

Petitioner,

vs.

CASE WESTERN RESERVE UNIVERSITY, et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CouRT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

JOEL A. MAKEE

MARK J. VALPONI, Counsel of Record

RoBERT A. BRINDZA, II

KELLEY, MCCANN & LIVINGSTONE

35th Floor, BP America Building

200 Public Square

Cleveland, Ohio 44114-2302

(216) 241-3141

Attorneys for Respondents

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

i.

QUESTION PRESENTED FOR REVIEW

Did the United States District Court for the

Northern District of Ohio abuse its discretion under Rule

6(b) or Rule 56(f) of the Federal Rules of Civil Procedure

by denying Petitioner’s fifth request for an extension of

time to conduct discovery and/or file his brief opposing

Respondents’ motion for summary judgment, when

Petitioner had over one year to conduct any necessary

discovery and file a response to the pending motion?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW....... i

py 5 Foe es yy yy. SRE iii

TABLE OF AUTHORITIES................00.. Vv

DECISIONS AND JUDGMENTS OF THE

bet) yy 0 8 6 0) ee ie 1

FEDERAL RULES AND PROVISIONS

Ee Terre ee ee ee ee eee 2

STATEMENT OF THE CASE ...............+... 6

EE PCN Less WAN eee eG ow erascecasecess 10

I. The District Court Did Not Abuse Its

Discretion Under Rule 6(b) Or Rule 56(f) Of

The Federal Rules Of Civil Procedure

When It Denied Petitioner’s Fifth Request

For Additional Time To File A _ Brief

Opposing Respondents’ Motion.......... 10

II. This Court Should Not Review The

Decision Below Because Petitioner’s

Question Presented For Review Relies

Upon Hypothetical Obiter Dictum In The

Sixth Circuit Opinion... .......cesccece. 15

III. Petitioner’s Claim That The District Court

Violated The Provisions Of Rule 56(c) Must

Fail Not Only Because It Has No

Foundation In The Record But Also

Because Petitioner Waived Such Claim By

Failing To Assign It As Error Before The

eee eek eb ea be 19

eee eee ee eee 20

iv.

APPENDIX:

Petitioner's February 29, 1988 Motion for

Extension of Time And Marginal Entry Of The

United States District Court, Northern District

of Ohio, Denying Petitioner’s Motion ......... Al

November 30, 1987 Order of the United States

District Court, Northern District of Ohio...... A9

December 10, 1987 Order of the United States

District Court, Northern District of Ohio...... Al0

Petitioner’s ‘‘Statement of Issues Presented”’

Before the Court of Appeals for the Sixth

I a ee i ae ea Al2

Vv.

TABLE OF AUTHORITIES

Cases

Barfield v. Brierton, 883 F.2d 923 (llth Cir.

as oe ee ea Rake CA Ra ee 12

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct.

2648, 91 L.. Bed. BOG (1GGE) . wc ccc wc cccncesess 15

Ex Parte Bakelite Corp., 279 U.S. 438, 44 S. Ct. 411,

35% &. 2: Speeaeveeri rer eee 16

Glen Eden Hospital v. Blue Cross & Blue Shield of

Michigan, 740 F.2d 423 (6th Cir. 1984).......... 12

Hoffman v. Kennedy, 30 F.R.D. 50 (E.D. Pa.

gk vc adcban ck cence valnesse keke Nhe hees 11

Jasperson v. Purolator Courier Corp., 765 F.2d 736

(ets Che. TOE. 5 on nc wc cn cebed vans Ssncenaneres 19

Lewis v. Continental Bank Corp., 494 U.S. 472, 110

S. Ct. 1249, 108 L. Ed. 2d 400 (1990) ........... 17

Mendez v. Banco Popular De Puerto Rico, 900 F.2d

oi) fo Pe aay ee 10,11,13,14

McCall v. Andrus, 628 F.2d 1185 (9th Cir.

| rrr etm rrr. 19

McCormick Harvesting Machine Co. v. C. Aultman

Co., 169 U.S. 606, 12 S. Ct. 953, 42 L. Ed. 875

SP Pee ry Pee rrr rer eo as a 16

Mississippi River Corp. v. Federal Trade

Commission, 454 F.2d 1083 (8th Cir. 1972)....... 19

North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402,

Te Ee GA Caets. so ns Kind 5 ae eneenehe 17

Ohio Sealy Mattress Mfg. Co. v. Sealy, Inc., 776

F.2d 646 (6th Cir. 1985)... 2... cc ccc cece en enes 19

vi.

Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d

a a aa, BOE. 6 cava o ec abbas been e eae eau 12

Pfeil v. Rogers, 757 F.2d 850 (7th Cir. 1985), cert.

denied, 475 U.S. 1107, 106 S. Ct. 1513, 89 L. Ed.

og eer ere re es ee eee ee 12

R.A.V. v. City of St. Paul, 505 U.S. » 1128

Ct. 2538, 120 L. Ed. 2d 305 (1992).............. 16

Securities & Exchange Commission v. Spence &

Green Chemical Co., 612 F.2d 896 (5th Cir. 1980),

cert. denied, 449 U.S. 1082, 101 S. Ct. 866, 66

ee ek re ree eee ee 11,12

United States v. Bob Stofer Oldsmobile-Cadillac,

Inc., 766 F.2d 1147 (7th Cir. 1066)... cs cccesee 12

Walters v. City of Ocean Springs, 626 F.2d 1317

Se Mas WY 3 o's 054.050 0s ven beae Re mne cuyae, 12

Wilmar Poultry Co. v. Morton-Norwich Products,

Inc., 520 F.2d 289 (8th Cir. 1975), cert. denied, 424

U.S. 915, 96 S. Ct. 1116, 47 L. Ed. 2d 320 (1976). 12

Rules

Rule 6 of the Federal Rules of Civil

SPS TTCOR TE OPC ECCT SECC TC 2

Rule 6(b) of the Federal Rules of Civil

I... J ss ee a tae keh Soe ee ae ee 2,8,10,14

Rule 56 of the Federal Rules of Civil

OPEC ere Te 3,15,16

Rule 56(c) of the Federal Rules of Civil

ON 2 nS San eu ee oe eae ee 4,19

Rule 56(f) of the Federal Rules of Civil

ID ods d as ee bo 5,8,10,11,12,14

j

E

5

&

No. 92-1147

IN THE

Supreme Court of the United States

October Term, 1992

NWABUEZE V. OKOCHA,

Petitioner,

vs.

CASE WESTERN RESERVE UNIVERSITY, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES CouRT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

DECISIONS AND JUDGMENTS OF

THE COURTS BELOW

The August 28, 1992 decision of the United States

Court of Appeals for the Sixth Circuit (‘Sixth Circuit’’)

denying Petitioner's Petition For Rehearing And

Rehearing En Banc, and the Sixth Circuit’s July 13,

1992 decision affirming the September 12, 1991 order of

the United States District Court, Northern District of

Ohio (‘District Court’’), are reproduced at the Appendix

to the Petition For Writ of Certiorari at A-1 and A-2,

respectively. The September 12, 1991 decision of the

District Court is also reproduced at the Appendix to the

Petition For Writ of Certiorari at A-3. The February 29,

1988 marginal entry order of the District Court denying

Petitioner's February 28, 1988 Motion for Extension of

Time is reproduced herein at Al.

en

2

FEDERAL RULES AND PROVISIONS INVOLVED

Rule 6 of the Federal Rules of Civil Procedure:

Rule 6. TIME

(a) Computation. In computing any period of

time prescribed or allowed by these rules, by the

local rules of any district court, by order of court, or

by any applicable statute, the day of the act, event,

or default from which the designated period of time

begins to run shall not be included. The last day of

the period so computed shail be included, unless it is

a Saturday, a Sunday, or a legal holiday, or, when

the act to be done is the filing of a paper in court, a

day on which weather or other conditions have made

the office of the clerk of the district court

inaccessible, in which event the period runs until the

end of the next day which is not one of the

aforementioned days. When the period of time

prescribed or allowed is less than 11 days,

intermediate Saturdays, Sundays, and legal holidays

shall be excluded in the computation. As used in

this rule and in Rule 77(c), “legal holiday’’ includes

New Year’s Day, Birthday of Martin Luther King,

Jr., Washington's Birthday, Memorial Day,

Independence Day, Labor Day, Columbus Day,

Veterans Day, Thanksgiving Day, Christmas Day,

and any other day appointed as a holiday by the

President or the Congress of the United States, or

by the state in which the district court is held.

(b) Enlargement. When by these rules or by a

notice given thereunder or by order of court an act

is required or allowed to be done at or within a

specified time, the court for cause shown may at any

time in its discretion (1) with or without motion or

notice order the period enlarged if request therefor is

made before the expiration of the period originally

prescribed or as extended by a previous order, or (2)

upon motion made after the expiration of the

specified period permit the act to be done where the

failure to act was the result of excusable neglect;

ee

3

but it may not extend the time for taking any action

under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e),

60(b), and 74(a), except to the extent and under the

conditions stated in them.

(c) [Rescinded effective July 1, 1966.]

(d) For Motions—Affidavits. A written

motion, other than one which may be heard ex

parte, and notice of the hearing thereof shall be

served not later than 5 days before the time

specified for the hearing, unless a different period is

fixed by these rules or by order of the court. Such

an order may for cause shown be made on ex parte

application. When a motion is supported by

affidavit, the affidavit shall be served with the

motion; and, except as otherwise provided in Rule

59(c), opposing affidavits may be served not later

than 1 day before the hearing, unless the court

permits them to be served at some other time.

(e) Additional Time After Service by

Mail. Whenever a party has the right or is required

to do some act or take some proceedings within a

prescribed period after the service of a notice or

other paper upon the party and the notice or paper

is served upon the party by mail, 3 days shall be

added to the prescribed period.

RULE 56. SuMMARY JUDGMENT

(a) For Claimant. A party seeking to recover

upon a claim, counterclaim, or crossclaim or to

obtain a declaratory judgment may, at any time

after the expiration of 20 days from the

commencement of the action or after service of a

motion for summary judgment by the adverse party,

move with or without supporting affidavits for a

summary judgment in the party’s favor upon all or

any part thereof.

(b) For Defending Party. A party against

whom a claim, counterclaim, or crossclaim is

asserted or a declaratory judgment is sought may,

4

at any time, move with or without supporting

affidavits for a summary judgment in the party's

favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The

motion shall be served at least 10 days before the

time fixed for the hearing. The adverse party prior

to the day of hearing may serve opposing affidavits.

The judgment sought shall be rendered forthwith if

the pleadings, depositions, answers’ to

interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law. A

summary judgment, interlocutory in character, may

be rendered on the issue of liability alone although

there is a genuine issue as to the amount of

damages.

(d) Case Not Fully Adjudicated on Motion. If

on motion under this rule judgment is not rendered

upon the whole case or for all the relief asked and a

trial is necessary, the court at the hearing of the

motion, by examining the pleadings and the

evidence before it and by interrogating counsel, shall

if practicable ascertain what material facts exist

without substantial controversy and what material

facts are actually and in good faith controverted. It

shall thereupon make an order specifying the facts

that appear without substantial controversy,

including the extent to which the amount of

damages or other relief is not in controversy, and

directing such further proceedings in the action as

are just. Upon the trial of the action the facts so

specified shall be deemed established, and the trial

shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony;

Defense Required. Supporting and opposing

affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the

5

affiant is competent to testify to the matters stated

therein. Sworn or certified copies of all papers or

parts thereof referred to in an affidavit shall be

attached thereto or served therewith. The court may

permit affidavits to be supplemented or opposed by

depositions, answers to interrogatories, or further

affidavits. When a motion for summary judgment is

made and supported as provided in this rule, an

adverse party may not rest upon the mere

allegations or denials of the adverse party's

pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must

set forth specified facts showing that there is a

genuine issue for trial. If the adverse party does not

so respond, summary judgment if appropriate, shall

be entered against the adverse party.

(f) When Affidavits Are Unavailable. Should

it appear from the affidavits of a party opposing the

motion that the party cannot for reasons stated

present by affidavit facts essential to justify the

party’s opposition, the court may refuse the

application for judgment or may order a continuance

to permit affidavits to be obtained or depositions to

be taken or discovery to be had or may make such

other order as is just.

(g) Affidavits Made in Bad Faith. Should it

appear to the satisfaction of the court at any time

that any of the affidavits presented pursuant to this

rule are presented in bad faith or solely for the

purpose of delay, the court shall forthwith order the

party employing them to pay to the other party the

amount of the reasonable expenses which the filing

of the affidavits caused the other party to incur,

including reasonable attorney’s fees, and any

offending party or attorney may be adjudged guilty

of contempt.

|

6

STATEMENT OF THE CASE

This matter comes to this Court on a Petition for

Writ of Certiorari to the Sixth Circuit seeking a review of

that court’s July 13, 1992 decision which affirmed the

March 1, 1988 Marginal Entry Order of the District

Court. In the marginal order, the District Court denied

Petitioner's February 29, 1988 Motion For Extension of

Time (the ‘‘Motion for Extension’’) to respond to the

motion for summary judgment filed on February 17,

1987 by Respondents, Case Western Reserve University,

et al.' (See Al). Petitioner did not assign as error and

the Sixth Circuit did not address the merits of the

District Court’s September 12, 1991 award of summary

judgment to Respondents; rather, Petitioner raised

before the Sixth Circuit as his sole issue presented for

review the District Court’s purported abuse of its

discretion in denying the Motion for Extension (See

Petitioner's Sixth Circuit ‘‘Statement Of Issues

Presented’, at Al2).

On May 8, 1986, Petitioner filed a complaint in the

District Court which was amended on May 28, 1986 to

set forth fifteen (15) purported causes of action against

Respondents. On February 17, 1987, nearly ten (10)

months after Petitioner filed his original complaint,

Respondents filed a motion for summary judgment (the

‘Respondents’ Motion’’) as to all fifteen counts of the

amended complaint. On March 6, 1987, Petitioner moved

for an unspecified enlargement of time in which to file

his brief opposing Respondents’ Motion. The District

Court did not rule on this motion.

‘Also named as defendants (and as additional Respondents herein)

were Allen C. Holmes (former Chairman of the University Board of

Trustees), David V. Ragone (former President of the University) and

University Professors Lucille S. Mayne, Jerome B. Lando, Jack L.

Koenig and Hugh Brown.

7

On April 27, 1987, Petitioner moved for a second

briefing extension, this time requesting that a previously

established April 27, 1987 discovery cut-off date be

extended to August 31, 1987, in order to allow him more

time to conduct the discovery necessary to respond to

the Respondents’ Motion. Although the District Court

did not rule on Petitioner’s April 27, 1987 motion, in

May of 1987 Petitioner deposed two fact witnesses as

well as Dr. Mayne. Between June of 1987 and November

12, 1987, Petitioner conducted no discovery.

On November 12, 1987, Petitioner filed a third

request for additional time which was characterized as a

Substituted Motion for Extension of Time to Complete

Discovery and which requested November 31 [sic], 1987,

as the new discovery cut-off date. On November 30,

1987, the District Court granted Petitioner an extension

of time until December 11, 1987, to complete discovery

and to file his brief opposing Respondents’ Motion (See

November 30, 1987 order at A9). The November 30,

1987 Order also provided that Petitioner would be

granted no further extensions of time.

Petitioner then noticed a series of depositions to be

taken through December 10, 1987, the day before his

response was due. On December 9, 1987, the District

Court conducted a discovery conference at which

Petitioner orally made his fourth motion for an extension

of time to conduct discovery and file his brief in

opposition. The matters resolved at the discovery

conference were reduced to writing and evidenced by a

December 10, 1987 order which provided in pertinent

part:

* * *

3. [T]hat the discovery deadline in this matter

is hereby extended to December 24, 1987;

8

4. that [Petitioner] shall respond to _ the

[Respondents] motion for summary judgment on or

before February 29, 1988; and

5. there will be no further extensions of the

dates set forth in paragraphs 3 and 4.

(See December 10, 1987 Order at Al1) (emphasis added).

Petitioner conducted depositions on December 8, 9,

10, 14, 15, 22 and 23, 1987. Prior to the December 24,

1987 expiration of the discovery period, Petitioner

neither moved to extend the discovery period, nor

requested additional time to conduct specific discovery

which he believed he needed to file his brief opposing

Respondents’ Motion, which by now had been in his

possession for close to a full year.

On February 29, 1988, the day his brief opposing

Respondents’ Motion was due, and sixty-seven (67) days

after the expiration of the discovery period, Petitioner

made his fifth request for an extension of time, citing

both Rules 56(f) and 6(b) of the Federal Rules of Civil

Procedure (See Motion for Extension at Al). In his

motion Petitioner did not claim that he needed the

additional time to conduct further discovery for his

opposing brief. Rather, Petitioner focused on his own

court reporter's inability to prepare the transcripts of the

depositions taken in December of 1987 (See A4).

The District Court denied Petitioner’s Motion for

Extension by marginal order dated March 1, 1988 (See

A2). During the ensuring three and one-half years,

Petitioner did not file or proffer any of his deposition

transcripts or any other evidence with the District Court.

In fact, Petitioner filed nothing more with the District

Court until after it ruled on Respondents’ Motion.

9

On September 12, 1991, the District Court granted

Respondents’ Motion and dismissed the case with

prejudice (See September 12, 1991, District Court

Memorandum of Decision and Order, at Appendix A-1 to

Petition for Certiorari). Petitioner then appealed, raising

the District Court’s denial of the Motion for Extension

as his sole issue presented for review (See A12).

On July 13, 1992, the Sixth Circuit affirmed the District

Court's denial of the Motion for Extension. Thereafter,

Petitioner filed a Petition for Rehearing and Rehearing

En Banc, which the Sixth Circuit denied on August 28,

1992. On November 27, 1992, Petitioner filed a Petition

for a Writ of Certiorari to the Sixth Circuit.’

* By letter dated December 8, 1992, the Clerk of this Court returned

the Petition for a Writ of Certiorari for its failure to comply with this

Court's Rules of Practice. On or about January 4, 1993, Petitioner

filed a revised Petition for a Writ of Certiorari.

10

ARGUMENT

I. The District Court Did Not Abuse Its Discretion

Under Rule 6(b) Or Rule 56(f) Of The Federal Rules Of

Civil Procedure When It Denied Petitioner's Fifth

Request For Additional Time To File A Brief Opposing

Respondents’ Motion.

The Sixth Circuit applied well-established legal

principles in affirming the District Court’s denial of

Petitioner’s fifth request to conduct discovery and/or file

his brief opposing Respondent’s Motion. Its decision is

in accord with case law from other federal circuit and

district courts which have considered requests for

extensions of time to conduct discovery and/or to

respond to a pending motion, whether filed pursuant to

Rule 6(b) or Rule 56(f) of the Federal Rules of Civil

Procedure. Also, the Sixth Circuit’s decision does not

stray so far from the ‘usual course of judicial

proceedings” in construing and applying Rules 6(b) and

56(f) which would necessitate further review by this

Court. See Sup.Ct.R. 10.1(a). Since the Sixth Circuit’s

affirmance of the District Court’s decision was

appropriate, the Petition for Certiorari must be denied.

It is well established that a district court has

considerable discretion to grant or deny any motion for

extension of time brought pursuant to Rule 6(b). See

Mendez v. Banco Popular De Puerto Rico, 900 F.2d 4

(1st Cir. 1990), wherein the non-moving party presented

the district court with three requests for extensions of

time to respond to a pending motion for summary

judgment. The district court granted the first request by

allowing the non-moving party an additional thirty (30)

days to respond. Thereafter, the non-movant requested a

second extension, which was denied by the district court.

:

t

11

The non-movant then asked the district court for a third

extension, citing Hurricane Hugo as the primary reason.

In the meantime the deadline for filing the opposing brief

passed. The district court denied the third extension and

granted the motion for summary judgment. Mendez uv.

Banco Popular, supra, 900 F.2d at 10.

On appeal, the First Circuit upheld the district

court’s decisions to deny the non-movant’s second and

third requests, deferring to the considerable discretion of

a district court in managing its docket:

Rules are rules—and the parties must play by them.

In the final analysis, the judicial process depends

heavily on the judge’s credibility. To ensure such

credibility, a district judge must often be firm in

managing crowded dockets and demanding

adherence to announced deadlines. If he or she sets

a reasonable due date, parties should not be allowed

casually to flout it or painlessly to escape the

foreseeable consequences of noncompliance.

Moreover, appellate courts cannot too readily agree

to meddle in such case-management decisions lest

the local court’s authority be undermined and the

system sputter.... In the absence of a manifest

abuse of discretion, then, we will not interfere with a

district court’s reasoned refusal to grant incremental

enlargements of time. We discern no such abuse in

the present case.

Mendez v. Banco Popular, supra, 900 F.2d at 7 (citation

omitted). See also, Hoffman v. Kennedy, 30 F.R.D. 50

(E.D. Pa. 1962).

Decisons whether to grant or deny Rule 56(f)

requests likewise rest in the sound discretion of the trial

court.’ Securities & Exchange Commission v. Spence &

* Respondents recognize the incongruity of citing case authority

construing Rule 56(f) when, in fact, Petitioner did not request

additional time to conduct discovery in his last motion for an

extension.

12

Green Chemical Co., 612 F.2d 896, 901 (5th Cir. 1980),

cert. denied, 449 U.S. 1082, 101 S. Ct. 866, 66 L. Ed. 2d

806 (1981); Glen Eden Hospital v. Blue Cross & Blue

Shield of Michigan, 740 F.2d 423, 428 (6th Cir. 1984);

Pfeil v. Rogers, 757 F.2d 850, 856 (7th Cir. 1985), cert.

denied, 475 U.S. 1107, 106 S. Ct. 1513, 89 L. Ed. 2d 912

1986); Barfield v. Brierton, 883 F.2d 923, 931 (11th Cir.

1989).* As a result, a district court’s decision to grant or

deny a continuance pursuant to Rule 56(f) will be

disturbed on appeal only if the district court’s decision

reflects an abuse of that discretion. Paul Kadair, Inc. v.

Sony Corp. of America, 694 F.2d 1017, 1029 (5th Cir.

1983). Notably, a Rule 56(f) request will not be granted

where a non-diligent party has failed to make use of the

various discovery mechanisms that are at his disposal.

See Paul Kadair, Inc. v. Sony Corp., supra, 694 F.2d at

1031. See also, Walters v. City of Ocean Springs, 626

F.2d 1317 (5th Cir. 1980); United States v. Bob Stofer

Oldsmobile-Cadillac, Inc., 766 F.2d 1147 (7th Cir. 1985);

Pfeil v. Rogers, supra, 757 F.2d at 857; Barfield v.

Brierton, supra, 883 F.2d at 932.

‘Even if Petitioner's Motion can be considered under Rule 56(f), it

was properly denied by the District Court because it failed to

demonstrate specifically ‘how postponement of a ruling on the

motion will enable him, by discovery or other means, to rebut the

movant’s showing of the absence of a genuine issue of fact.”

Securities & Exchange Commission v. Spence & Green Chemical Co.,

supra, 612 F.2d at 901, quoting Wilmar Poultry Co. v. Morton-

Norwich Products, Inc., 520 F.2d 289, 297 (8th Cir. 1975), cert.

denied, 424 U.S. 915, 96 S. Ct. 1116, 47 L. Ed. 2d 320 (1976).

Petitioner did not state specifically how the testimony elicited during

the depositions in question would have rebutted the contentions made

in Respondent’s Motion, but rather stated only that he experienced

troubles with the court reporting service retained by his counsel to

record and transcribe those depositions. As such, Petitioner's motion

fails as a Rule 56(f) motion for want of compliance with the Rule's

requirements.

13

Here, the District Court’s denial of the Motion for

Extension was within its sound discretion and was fully

supported by the procedural history of this case.

Respondents’ Motion was filed on February 17, 1987.

Between March 6, 1987 and December 9, 1987, Petitioner

requested four (4) extensions of time to conduct

discovery and/or to file his brief opposing Respondents’

Motion, all of which the District Court either explicitly

or implicitly granted. Indeed, the December 10, 1987

order gave Petitioner sixty-seven (67) days after the close

of discovery to file a response to a brief which Petitioner

had in his possession for almost a year. The December

10, 1987 order, like the November 30, 1987 order, gave

Petitioner notice that no more extensions would be

granted. On February 29, 1988, when Petitioner

requested yet another extension, citing his own

‘Hurricane Hugo” type excuse, he was simply ‘‘flouting”’

the District Court’s stern admonition and pushing the

credibility of the entire judicial process to the limit.

Mendez v. Banco Popular, supra, 900 F.2d at 7.

In addition, nothing beyond Petitioner's control

prevented him from preparing and filing his brief

opposing Respondents’ Motion within the prescribed

time period. Given the finality of the District Court’s

briefing deadline, Petitioner should have taken all

necessary measures to ensure that the evidence he

needed to support his motion was readily obtainable to

him, which measures, at the very least, could have

included arranging for different court reporting firms to

record and/or transcribe the various deponents’

testimony. Moreover, nothing prevented Petitioner from

preparing and filing an opposing brief using his own

affidavit to create genuine issues of material fact.

Nothing in the record, however, suggests that Petitioner

took any steps whatsoever to file his brief opposing

14

Respondents’ Motion either before or after February 29,

1988. Finally, between February 29, 1988 and September

12, 1991, the date on which the District Court ruled in

Respondents’ favor, Petitioner filed or proffered nothing

with the District Court, not even the precious deposition

transcripts.

Further evidence of Petitioner’s dilatory conduct is

his failure to depose any Case Western Reserve

University personnel or any of the individual defendants

until nearly one year after he filed the lawsuit. Petitioner

did not even notice the depositions of the very

individuals whose testimony Petitioner has identified on

appeal as vital to the prosecution of his action until

December, 1987, which was one and a half years after he

filed his complaint and ten (10) months after the filing of

Respondents’ Motion. Petitioner could have deposed the

individual defendants as early as June, 1986. Instead, he

deliberately waited to depose these ‘‘crucial’’ witnesses

until only after it became apparent that the District

Court was ordering the conclusion of discovery.

Consequently, the District Court, to preserve its

credibility, acted within its considerable discretion in

denying the Motion for Extension under either Rule 6(b)

or Rule 56(f). Surely, the District Court’s decision was

not a “manifest abuse of discretion’, especially

considering that the judicial process itself is so heavily

dependent on the “credibility” of the trial judges.

Mendez v. Banco Popular, supra, 900 F.2d at 7. As a

result, the District Court’s decision, carefully withheld

until Petitioner’s own conduct flouted its authority, was

properly affirmed by the Sixth Circuit, and does not

warrant further review by this Court.

ae siaeemenenenenenmnieiemeeninl

15

II. This Court Should Not Review The Decision

Below Because Petitioner's Question Presented For

Review Relies Upon Hypothetical Obiter Dictum In The

Sixth Circuit’s Opinion.

Petitioner attempts to manufacture an issue from

obiter dictum contained in the Sixth Circuit’s unreported

opinion. Specifically, the Sixth Circuit opined:

[Petitioner] argues that his response to

[Respondents’] motion could not be completed

without the transcripts. [Petitioner's] counsel was

present at these depositions. Yet, [Petitioner] did

not file any response, which could have included

counsel's affidavit stating the substance of the

testimony that was given, even though he could not

cite to specific transcript pages. [Petitioner] never

filed the completed transcripts with the District

Court and never filed a response to [Respondents’]

motion for summary judgment. [Petitioner] did not

move for reconsideration of the order denying

extension of the February 29, 1988 deadline.

[Petitioner] did not file anything further in this case

until he filed a notice of appeal on October 10, 1991.

(See Sixth Circuit opinion, attached as Appendix A-2 to

Petition for Certiorari, at 2-3).

Contrary to Petitioner’s assertion, the Sixth Circuit

did not contravene Rule 56 or the holding of Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed.

265 (1986), and has not expanded the types of evidence

which may be filed in opposition to a motion for

summary judgment. The Sixth Circuit merely suggested

courses of conduct which Petitioner could have

undertaken in lieu of moving the District Court, on the

day his brief in opposition was due, for a fifth extension

of time.

16

Also, the Sixth Circuit did not hold that Petitioner

should have filed an affidavit from his counsel

summarizing the critical deposition testimony. The court

below merely suggested that an attorney, faced with a

final deadline, could have submitted a response in several

different ways in lieu of requesting a fifth extension of

time.*

This Court has traditionally characterized obiter

dictum, such as is present here, as a court’s expression

of opinion upon an issue not decided by the court. Of

course, such language lacks the force of a judicial

determination. See McCormick Harvesting Machine Co.

v. C. Aultman Co., 169 U.S. 606, 611, 12 S. Ct. 953, 42 L.

Ed. 875, 877 (1898); Ex Parte Bakelite Corp., 279 U.S.

438, 455, 44 S. Ct. 411, 73 L. Ed. 787, 796 (1929). See

also, R.A.V. v. City of St. Paul, 505 U.S. , 112 S.

Ct. 2538, 120 L. Ed. 2d 305 (1992) (‘It is, of course,

contrary to all traditions of our jurisprudence to consider

the law on this point conclusively resolved by broad

language in cases where the issue was not presented or

even envisioned.”’) Here, the language upon which

Petitioner relies is merely obiter dictum from the Sixth

Circuit's decision which does not relate to the District

Court’s denial of the fifth request for extension of time‘

* The Sixth Circuit was probably suggesting that when faced with the

gravity of the District Court’s final deadline, nothing in the Rules

would have prevented Petitioner's counsel, as an officer of the court,

from verifying, through an affidavit, summaries of the critical

deposition testimony. Thereafter, when the actual deposition

transcripts were available, the transcripts as well as an addendum to

the brief containing the appropriate citations to the transcripts could

have been filed.

*Contrary to Petitioner's assertion in his ‘Question Presented’’ to

this Court, the District Court did not adopt the standard which

Petitioner now contends contravenes Rule 56 (See Petition at i). In

fact, the District Court simply denied Petitioners’ Motion for

Extension without rendering an opinion.

17

(See Al). Indeed, the Sixth Circuit’s suggestion was

not an issue before the District Court, nor does it

relate to whether or not the District Court abused its

discretion.

Moreover, to characterize the Sixth Circuit’s obiter

dictum as an invitation to violate the Code of

Professional Responsibility, as Petitioner suggests at p.

23 of his Petition, is pure folly.’ The referenced language

merely reflects the Sixth Circuit’s awareness and

criticism of Petitioner's feilure to do anything in

response to the District Court’s denial of his Motion for

Extension and advises Petitioner of more prudent

measures which could have been taken before the

District Court granted Respondents’ Motion.

What Petitioner actually seeks is an advisory opinion

from this Court addressing the hypothetical situation

where an attorney actually responds to a motion for

summary judgment by filing, in affidavit form, a

summary of a deponent’s testimony, or where a district

court bases its denial of an extension of time on

counsel's failure to use his own affidavit to oppose a

motion for summary judgment. Neither of those

situations were before the District Court or the Sixth

Circuit. To place either of those hypothetical situations

before this Court would be beyond this Court's

jurisdiction. See, e.g., North Carolina v. Rice, 404 US.

244, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971); Lewis v.

Continental Bank Corp., 494 U.S. 472, 110 S. Ct. 1249,

108 L. Ed. 2d 400 (1990). Petitioner propounds’ this

7An_ affidavit from counsel accurately summarizing deposition

testimony followed by the filing of the actual transcripts would not

transform counsel into a witness within the purview of Disciplinary

Rule 5-101(B).

18

hypothetical question to direct the Court’s attention

away from the sole issue before the Sixth Circuit, and,

correspondingly, the sole question presented for this

Court’s review: i.e., whether the District Court abused its

discretion in denying Petitioner’s fifth request for an

extension to conduct discovery and/or file his brief

opposing Respondents’ Motion, given the procedural

history of this litigation. As shown earlier, the District

Court acted completely within its discretion given

Petitioner's dilatory behavior and there is no need to

review that decision further.

19

III. Petitioner's Claim That The District Court

Violated The Provisions Of Rule 56(c) Must Fail Not

Only Because It Has No Foundation In The Record But

Also Because Petitioner Waived Such Claim By Failing

To Assign It As Error Before The Sixth Circuit.

Petitioner's final argument is meritless not only

because the District Court afforded him over four (4)

years notice to file his brief and/or evidence opposing

Respondents’ Motion but also because he failed to timely

raise it as an issue before the Sixth Circuit. The record

before the Sixth Circuit indisputably demonstrated that

the Respondents’ Motion was filed on February 17, 1987,

and that the Respondent’s Motion was granted on

September 12, 1991. Thus, the District Court did not

render summary judgment against Petitioner, sua

sponte, but rather upon Respondents’ Motion, of which

Petitioner had notice, but which he basically ignored. To

suggest otherwise, as Petitioner does here, completely

misstates the procedural history of this litigation.

Petitioner also failed to raise this issue in his Sixth

Circuit appellate brief. Rather, Petitioner objected to the

District Court’s September 12, 1991 decision for the first

time in his Sixth Circuit reply brief. Petitioner’s failure

to raise this issue in his initial Sixth Circuit brief

prevents him from asserting it now. See, e.g., Mississippi

River Corp. v. Federal Trade Commission, 454 F.2d 1083,

1093 (8th Cir. 1972).°

* See also, Ohio Sealy Mattress Mfg. Co. v. Sealy, Inc., 776 F.2d 646,

656 n.13 (6th Cir. 1985); Jasperson v. Purolator Courier Corp., 765

F.2d 736, 740-41 (8th Cir. 1985); McCall v. Andrus, 628 F.2d 1185,

1187 (9th Cir. 1980).

20

CONCLUSION

For these reasons, the Petition for a Writ of

Certiorari must be denied.

Respectfully submitted,

JOEL A. MAKEE

MARK J. VALPONI, Counsel of Record

RoBERT A. BRINDZA, II

KELLEY, MCCANN & LIVINGSTONE

35th Floor, BP America Building

200 Public Square

Cleveland, Ohio 44114-2302

(216) 241-3141

Attorneys for Respondents

Al

APPENDIX

PETITIONER’S MOTION FOR EXTENSION OF

TIME AND MARGINAL ENTRY OF THE UNITED

STATES DISTRICT COURT DENYING MOTION

(Motion Filed February 29, 1988;

Motion Denied March 1, 1988)

Case No. C86-1941

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

NWABUEZE V. OKOCHA,

Plaintiff

VS.

CASE WESTERN RESERVE UNIVERSITY, et al.

Defendants.

JUDGE ALICE M. BATCHELDER

MOTION FOR EXTENSION OF TIME

Now comes plaintiff, by and through counsel, and

hereby moves this Honorable court pursuant to Fed. R.

Civ. P. 56 (f) and 6(b), for an order granting plaintiff

additional time to respond to Defendants’ Motion For

Summary Judgment. Plaintiff requests an additional ten

(10) days after plaintiff's receipt of the transcript of

A2

Depositon [sic] of Jerome Lando. Reasons in support of

this motion are contained in the affidavit and brief which

is attached hereto and incorporated herein by reference.

Respectfully submitted,

/s/ J. ANDREW HOERNER

Mark A. KAISER &

J. ANDREW HOERNER

Attorneys for Plaintiff

459 The Arcade

Cleveland, Ohio 44114

(216) 687-1838

Denied. So ordered.

/si/ AMB 3/1/88

A3

CERTIFICATE OF SERVICE

A copy of the foregoing Motion For Extension of

Time has been duly served upon Mark J. Valponi, Esq.,

Kelly [sic] McCann & Livingstone, 300 National City,

East 6th Building, Cleveland, Ohio 44114, by personal

delivery on this 29th day of February, 1988.

/s/_ J. ANDREW HOERNER

Mark A. KAISER &

J. ANDREW HOERNER

459 The Arcade

Cleveland, Ohio 44114

Attorneys for Plaintiff

A4

BRIEF IN SUPPORT

Plaintiff herein completed the discovery necessary to

respond to Defendants’ Motion For Summary Judgment

prior to the December 24 cut-off date set in the Court’s

Order of December 10, 1987. The court reporting firm

employed by plaintiff, “Reporters, Etc.,’’ agreed to

provide transcripts no later than January 15, 1988. (See

attached Affidavit of Linda Jones.) Reporters, Etc. had

not completed the transcripts of any of the depositions

on January 15, 1988. Plaintiff repeatedly contacted the

aforementioned reporting firm to make inquiries and

express concern about the delay in producing the

deposition transcripts.

Plaintiff did not receive copies of the deposition of

Jack Koenig and Babara [sic] Leach until yesterday.

Plaintiff has still not received a copy of the Deposition of

Jerome Lando. A review of the facts, pleadings, and

pending Motion for Summary Judgment leads plaintiff

to believe that a meaningful response to said motion is

impossible without the transcript of the Lando

deposition. (See attached affidavit of J. Andrew

Hoerner.)

The delay described above was caused by factors

beyond plaintiff's control. The interests of justice

therefore dictate that this Motion For Extension of Time

be granted so that the Court may effectively reach the

merits of this case.

Respectfully submitted,

/s/ J. ANDREW HOERNER

Mark A. KAISER &

J. ANDREW HOERNER

Attorneys for Plaintiff

459 The Arcade

Cleveland, Ohio 44114

(216) 687-1838

A5

STATE OF OHIO )

) SS

COUNTY OF CUYAHOGA )

AFFIDAVIT

I, LINDA JONES, being first duly sworn, do hereby

depose and say:

1. My name is Linda Jones

2. I am the owner and manager of ‘Reporters,

Etc.,”’ a small court reporting firm.

3. My firm is responsible for reporting the

depositions taken by plaintiff in the matter of Okocha v.

Case Western Reserve University, et al., Case No. C86-

1941, in the U.S. District Court for the Northern District

of Ohio, Judge Alice Batchelder presiding.

4. I was asked to have the transcripts in the above

case ready by January 15, 1988, and originally agreed to

that schedule. However, due to a back log in my firm’s

work load and a shortage of transcription personnel, we

have not been able to achieve that schedule.

5. the deposition of Jack Koenig and Barbara Leach

are 395 pages and 115 pages long, respectively. They

were completed and delivered on the evening of Sunday,

February 28, 1988.

6. The deposition of Jerome Lando is not yet

transcribed, however it will be completed within the next

fifteen (15) days.

Further affiant sayeth naught.

/s/ LINDA J. JONES

Linda Jones

iain

A6

SWORN TO BEFORE ME, and subscribed in my

presence, this 29th day of February, 1988.

/s/_ JACQUELINE BELL

Notary Public

My commission expires

August 26, 1991.

A7

Case No. C86-1941

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

NWABUEZE V. OKOCHA,

Plaintiff,

vs.

CASE WESTERN RESERVE UNIVERSITY, et al.

Defendants.

JUDGE ALICE M. BATCHELDER

AFFIDAVIT OF J. ..NDREW HOERNER

J. ANDREW HOERNER, having been duly sworn

according to law, states as follows:

1. I am the attorney for plaintiff in the above

captioned action.

2. The review of the pleadings and other documents

filed in this action, and the facts known to us at this

time, cause me to believe that the Deposition of Jerome

Lando is necessary before I can file a meaningful

response in opposition to the Motion For Summary

Judgment filed by the defendants.

FURTHER AFFIANT SAYETH NAUGHT.

/s/ J. ANDREW HOERNER

J. Andrew Hoerner

A8

SWORN TO BEFORE ME, and subscribed in my

presence this 29th day of February, 1988.

/s/ SuSAN M. WEAVER

Notary Public

SUSAN M. WEAVER, Attorney At Law

Notary Public, State of Ohio

My commission has no expiration date.

Section 147.03 R. C.

A9

ORDER OF THE UNITED STATES

DISTRICT COURT

(Filed November 30, 1987)

Case No. C86-1941

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

NWABUEZE V. OKOCHA,

Plaintiff,

Vv.

CASE WESTERN RESERVE UNIVERSITY, et al.,

Defendants.

JUDGE ALICE M. BATCHELDER

ORDER

Plaintiff is hereby granted an extension of time until

December 11, 1987, to complete all discovery and

respond to the motion of defendants for summary

judgment. There will be no further extensions of time

granted.

IT IS SO ORDERED.

Dated this 30th day of November, 1987.

/s/ ALicE M. BATCHELDER

United States District Judge

Al0

ORDER OF THE UNITED STATES

DISTRICT COURT

(Filed December 10, 1987)

Case No. C86-1941

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

NWABUEZE V. OKOCHA,

Plaintiff,

Vv.

CASE WESTERN RESERVE UNIVERSITY, et ai.,

Defendants.

JUDGE ALICE M. BATCHELDER

ORDER

On December 9, 1987, the Court conducted a

discovery conference in the above-captioned matter to

resolve all pending discovery disputes. As a result of this

discovery conference the Court hereby orders:

1. that Plaintiff shall provide this Court by

December 10, 1987, with specific information,

including the names of specific graduate students

who received financial aid from foreign governments

while, at the same time, they received financial aid

from the defendant University, which tends to show

that, with respect to financial aid, the Plaintiff was

treated in a manner inconsistent with the manner in

which other foreign graduate students were treated;

All

2. that with respect to the notices of deposition

and subpoenas duces tecum which have been served

upon Jerome B. Lando, Jack L. Koenig, Jean

Starky, and Barbara Leach, only those categories of

documents which the Court has circled need be

produced, that those which the Court has drawn a

line through need not be produced, and that copies

of these notices of deposition and subpoenas duces

tecum with the appropriate markings have been

attached to this order;

3. that the discovery deadline in this matter is

hereby extended to December 24, 1987;

4. that Plaintiff shall respond to _ the

Defendants’ motion for summary judgment on or

before February 29, 1988; and

5. there will be no further extensions of the

dates set forth in paragraphs 3 and 4.

IT IS SO ORDERED.

Dated this 10th day of December, 1987.

/si ALIcE M. BATCHELDER

United States District Judge

Al2

PETITIONER’S “STATEMENT OF ISSUES

PRESENTED” FILED IN THE COURT OF

APPEALS FOR THE SIXTH CIRCUIT

STATEMENT OF ISSUES PRESENTED

I. Whether the District Court committed reversible

error by denying Appellant’s Rule 56(f) Motion and an

opportunity to file a brief, opposing affidavit and

deposition transcripts to counter the Appellees’ motion

for summary judgment where the evidence to be offered

by Appellant upon receipt of certain deposition

transcripts undoubtedly would have established genuine

issues of material fact as to each claim?