# Opposition Brief — Okocha v. Case Western Reserve University

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 960

## Text

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?

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1924%3A2. Public record. Not legal advice.