NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 11-3010

_____________

SUPERIOR OFFSHORE INTERNATIONAL, INC., 

a Delaware corporation, on behalf of itself and all others similarly situated,

 Appellant

v.

BRISTOW GROUP, INC., a Delaware corporation; 

ERA HELICOPTERS, LLC., a Delaware, LLC.; 

SEACOR HOLDINGS, INC., a Delaware corporation; 

ERA GROUP, INC., a Delaware corporation;

ERA AVIATION, INC., a Washington corporation; 

PHI, INC., a Louisiana corporation

_______________

On Appeal from the United States District Court

for the District of Delaware

(No.1-09-cv-00438)

District Judge: Honorable Legrome D. Davis

_______________

Argued March 20, 2012

_______________

Before: RENDELL, FISHER, and CHAGARES, Circuit Judges.

(Opinion filed: July 27, 2012)

William E. Hoese, Esquire (Argued)

Joseph C. Kohn, Esquire

Robert J. LaRocca, Esquire

Kohn, Swift & Graf

One South Broad Street

Suite 2100

Philadelphia, PA 19107
2

Counsel for Appellants

Andre G. Bouchard, Esquire

Bouchard, Margules & Friedlander

222 Delaware Avenue

Suite 1400

Wilmington, DE 19801

Sean M. Brennecke, Esquire

Klehr, Harrison, Harvey & Branzburg

919 North Market Street

Suite 1000

Wilmington, DE 19083

Jennifer D. Chippendale, Esquire

Donald C. Klawiter, Esquire

Sheppard, Mullin, Richter & Hampton

1300 I Street, N.W.

11th Floor – East

Washington, DC 20005

Counsel for Appellee Bristow Group Inc.

Steven L. Caponi, Esquire

Elizabeth A. Sloan, Esquire

Blank Rome

1201 North Market Street

Suite 800

Wilmington, DE 19801

Helene D. Jaffe, Esquire (Argued)

Proskauer Rose

Eleven Times Square 

17th Floor 

New York, NY 10036

Counsel for Appellees Era Helicopters LLC, Seacor Holdings Inc., Era Group Inc,

and Era Aviation Inc.

Tarak Anada, Esquire

Pauline F. Hardin, Esquire
3

David G. Radlauer, Esquire

Jones Walker

Suite 4900

201 St. Charles Avenue

New Orleans, LA 70170

Comrie B. Flinn, Esquire

Pilar G. Kraman, Esquire

Young, Conaway, Stargatt & Taylor

1000 West Street, P.O. Box 391

17th Floor, Brandywine Building

Wilmington, DE 19801

Counsel for Appellee PHI Inc.

_______________

OPINION

_______________

CHAGARES, Circuit Judge.

Superior Offshore International (“SOI”) appeals the District Court‟s grant of 

summary judgment in favor of the defendants on SOI‟s antitrust claims related to the 

defendants‟ alleged price fixing of helicopter services rates for offshore oil and gas 

industries. The District Court found that SOI had not shown any evidence of an illegal 

agreement in violation of the Sherman Antitrust Act (the “Sherman Act”), 15 U.S.C. 

§§ 1-7, and denied SOI‟s request to conduct additional discovery under Federal Rule of 

Civil Procedure 56(d). We will affirm.

I.

We write solely for the parties‟ benefit and thus set forth only the facts necessary 

to our disposition. SOI filed its initial complaint on June 12, 2009, alleging that the 
4

defendants conspired to fix prices for their respective helicopter services, which provided 

air transportation to the oil and gas industries operating in the Gulf of Mexico. Such 

helicopter services are generally purchased for fixed periods of time through charter 

agreements that specify a set price plus any additional hourly charges. Collectively, the 

defendants have approximately a 90% market share in their industry.

The original complaint asserted that between January 1, 2001, and December 31, 

2005, in the face of softening demand, the defendants conspired to raise prices by 50%. 

Of particular importance to SOI was the fact that in the first half of 2001, the defendants 

instituted two “across-the-board” increases totaling 30%. To bolster its claim that these 

increases were the result of concerted activity, SOI cited the high concentration of the 

market, the close-knit community in this business sector (wherein employees often 

moved between companies), the ongoing investigation by the United States Department 

of Justice‟s Antitrust Division into these activities,1various quotes by company 

executives touting their increased profits and the importance of maintaining their 

respective market share, and the following unattributed quotation in a trade magazine: 

“If we were to say that the helicopter operators all got together and agreed to these 

increases, that would be illegal; it would be price fixing. Let‟s just say that everyone 

more or less agreed to the necessity of a more or less equal rate hike for everyone.” 

Appendix (“App.”) 54. Collectively, the District Court found this evidence was 

 

1 On August 4, 2010, the Antitrust Division closed its five-year investigation of potential 

antitrust violations without taking any action. 
5

insufficient to state an antitrust claim and dismissed the case. Superior Offshore Int‟l, 

Inc. v. Bristow Grp., Inc., 738 F. Supp. 2d 505, 510 (D. Del. 2010).

Following dismissal of the initial complaint, the District Court allowed SOI to 

amend its complaint to add allegations that a discussion about price fixing occurred 

between executives at defendants Bristow Group, Inc. (“Bristow”) and PHI, Inc. (“PHI”). 

The amended complaint, filed on December 2, 2010, alleged that a confidential witness 

later revealed to be Mike Tuttle had overheard Gene Graves, Bristow‟s vice president of 

sales, engage in a conversation in 2001 with “a senior sales and marketing executive of 

PHI, who [Tuttle] believed may have been Jim [Shugart], PHI Sales Manager.” App. 

117. Tuttle believed the parties to that conversation discussed raising helicopter rates in 

unison at their respective companies and at a third company, Era Helicopters, LLC 

(“Era”).

2

 Specifically, the amended complaint alleges that Graves did the following in 

the conversation Tuttle overheard:

(1) Agreed with PHI to implement a major price increase in [o]ffshore 

[h]elicopter [s]ervices in the Gulf of Mexico;

(2) Confirmed with PHI that Era had also agreed to make a major price 

increase at or about the same time;

(3) Represented that Air Logistics‟ President Jim Clement authorized 

Graves to enter into the agreement between Air Logistics, PHI, and Era to 

implement a major price increase in or about the first half of 2001;

(4) Stressed the importance of Air Logistics, PHI, and Era raising prices in

unison in order to maintain their respective customer bases; and

(5) Discussed and agreed on the timing of price increase announcements.

 

2

Era and related entities Era Aviation, Inc. and Era Group Inc. are wholly owned by 

defendant SEACOR Holdings. 
6

Id. (emphasis in original). The amended complaint also contained the same 

factual allegations as the original complaint.

Because the District Court found that only the newly added allegations allowed the 

amended complaint to escape dismissal, it permitted discovery related only to these 

alleged new facts. The Court allowed the parties to depose Tuttle, Shugart, Graves, and 

Clement, but refused to allow additional document requests by SOI. Id. at 157.3 

Ultimately, only Tuttle and Graves were deposed, as it became clear during this period of 

discovery that Shugart and Clement had not been involved in the conversation that Tuttle 

heard. 

During Tuttle‟s deposition, he stated that he had overheard a conversation between 

Graves and an unknown representative from a competitor that he felt “wasn‟t right,” but 

he could not describe any specifics, including the exact words Graves used. Id. at 204-

05. Tuttle indicated that the call had included a discussion of prices and collusive activity 

to avoid pursuing the other company‟s customers, and that the conversation worried him 

because he believed it could create liability for price fixing. He also stated that very 

shortly after the phone call occurred, all of the defendants raised their rates. However, 

Tuttle admitted that several details in the amended complaint were incorrect. First, he 

conceded that Graves could not have been talking to Shugart because Shugart did not 

 

3

 Following SOI‟s letter request for additional discovery, and the defendants‟ opposition 

thereto, the Court issued an Order on December 30, 2010, stating that “[t]he scope of all 

permitted depositions shall be strictly limited to the allegations set forth in Plaintiff‟s 

Amended Complaint ¶¶ 30-32” and that “[d]ocument discovery at this time is not 

warranted.” App. 157. 
7

work for PHI at the time of the phone call. Tuttle also admitted that Graves could not 

have mentioned Clement, as alleged in the complaint, because Clement was also no 

longer employed by PHI. Tuttle further stated that he “couldn‟t really say that all three” 

defendants were involved in an agreement to raise prices in unison, although he reiterated 

his general sense that the “gist” of the conversation he overheard “was price fixing.” Id.

at 205. In his deposition, Graves denied that such a conversation occurred.

On February 11, 2011, the defendants filed a motion for summary judgment, 

which SOI opposed with a request for full discovery pursuant to Federal Rule of Civil 

Procedure 56(d). In his affidavit, SOI‟s counsel sought production of documents in the 

following nine categories:

a. Transactional data reflecting prices charged by Defendants for offshore 

helicopter services, and Defendants‟ costs;

b. Information, including but not limited to, calendars, day-timers, 

telephone records, and correspondence, about any meeting, discussion or 

other communication between and among Defendants concerning the 

provision of those services;

c. Price sheets, price announcements, and price change letters generated by 

any Defendant concerning the provision of those services;

d. Information about Defendants‟ organizational structures;

e. Documents provided to or received from any government agency or 

representative, including, but not limited to, the Federal Bureau of 

Investigation, the United States Department of Justice, any law 

enforcement agency of any state, or any grand jury regarding any 

investigation into a possible violation of the antitrust laws;

f. Defendants‟ financial statements relating to offshore helicopter services;
8

g. Information about Defendants‟ membership and involvement in the 

activities of trade associations relating to offshore helicopter services;

h. Documents relating to any internal investigation conducted by any 

Defendant of actual or potential violations of law or company policy with 

respect to offshore helicopter services; and

i. Information relating to Defendants‟ pricing, marketing and sales strategy.

Id. at 336.

The District Court declined to allow additional discovery and granted summary 

judgment in favor of the defendants, finding that SOI had not offered any evidence to 

show there was a “contract, combination . . . , or conspiracy” to fix prices. 15 U.S.C. § 1. 

The District Court found summary judgment was appropriate despite the lack of full 

discovery because the only evidence of collusion mentioned in the amended complaint 

was Tuttle‟s overheard conversation, and Tuttle‟s deposition revealed he remembered 

very little about the nature of that conversation. 

SOI now appeals the denial of its Rule 56(d) motion and the District Court‟s grant 

of summary judgment in favor of the defendants.

II.4

Summary judgment is appropriate when “there is no genuine dispute as to any 

material fact” such that “the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). Our review of a grant of summary judgment is plenary. Goodman v. Mead 

Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976). In reviewing a District Court‟s grant 

 

4

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction 

pursuant to 28 U.S.C. § 1291. 
9

of summary judgment, we evaluate the evidence using the same standard as the District 

Court; that is, by viewing the evidence and making reasonable inferences from the 

evidence in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. 

BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992); Petruzzi‟s IGA

Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). “[A]t 

the summary judgment stage the judge‟s function is not . . . to weigh the evidence and 

determine the truth of the matter but to determine whether there is a genuine issue for 

trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). However, a court 

need not “turn a blind eye to the weight of the evidence.” BMW, 974 F.2d at 1363. In 

order for a dispute to be “genuine,” the nonmoving party “must do more than simply 

show that there is some metaphysical doubt as to the material facts” but must instead 

“come forward with specific facts showing that there is a genuine issue for trial.” 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) 

(quotation marks omitted) (emphasis in original). “Where the record taken as a whole 

could not lead a rational trier of fact to find for the non-moving party, there is no genuine 

issue for trial.” Id. at 587 (quotation marks omitted).

There is an added layer of complexity when determining whether summary 

judgment is appropriate in an antitrust case because “motive and intent play leading roles, 

the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken 

the plot.” Id. Such difficulties are particularly acute in cases where, as here, the plaintiff 

has failed to put forth direct evidence of conspiracy but is instead relying solely on 

circumstantial evidence. This is so because although “reasonable inferences” arising 
10

from circumstantial evidence must be drawn in favor of the nonmoving party, “what 

constitutes a reasonable inference in the context of an antitrust case . . . is somewhat 

different from cases in other branches of the law in that „antitrust law limits the range of 

permissible inferences from ambiguous evidence in a § 1 case.‟” In re Baby Food 

Antitrust Litig., 166 F.3d 112, 124 (3d Cir. 1999) (hereinafter “Baby Food”) (quoting 

Matsushita, 475 U.S. at 588). “The acceptable inferences which we can draw from 

circumstantial evidence vary with the plausibility of the plaintiffs‟ theory and the danger 

associated with such inferences.” Id. The Supreme Court has held that in antitrust cases, 

“conduct consistent with permissible competition as with illegal conspiracy does not, 

standing alone, support an inference of antitrust conspiracy.” Matsushita, 475 U.S. at 

588. Thus, in order for an antitrust plaintiff to succeed in opposing a motion for 

summary judgment on a Section 1 claim, the plaintiff “must present evidence that tends 

to exclude the possibility that the alleged conspirators acted independently.” Id.

III.

SOI brought this putative class action under § 1 of the Sherman Act, which 

provides: “Every contract, combination in the form of trust or otherwise, or conspiracy, 

in restraint of trade or commerce among the several States, or with foreign nations, is 

declared to be illegal.” 15 U.S.C. § 1. We have held that this provision requires a 

plaintiff to prove two elements: (1) that the defendants engaged in some form of 

“concerted action,” and (2) that such action resulted in a restraint on trade or commerce. 

In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 315 (3d Cir. 2010) (hereinafter

“Brokerage”).
11

The term “concerted action” encompasses the statutory terms “contract, 

combination[,] or conspiracy” and denotes “a unity of purpose or a common design and 

understanding or a meeting of minds or a conscious commitment to a common scheme.” 

Id. at 314-15 (quotation marks and punctuation omitted). A plaintiff may attempt to 

demonstrate the existence of concerted action in two ways. First, a plaintiff may present 

direct evidence of concerted action. Id. at 323. Second, the plaintiff could show that the 

defendants engaged in parallel conduct (such as raising prices simultaneously) and that 

certain other “plus factors” exist which render this conduct a violation of the Sherman 

Act. Id. 

Given the relatively lighter burden afforded to a plaintiff putting forth direct 

evidence of concerted action, the difference between direct and circumstantial evidence 

in an antitrust case assumes heightened significance. We have described direct evidence 

in this context as “evidence that is explicit and requires no inferences to establish the 

proposition or conclusion being asserted,” Baby Food, 166 F.3d at 118, such as “a 

document or conversation explicitly manifesting the existence of the agreement in 

question.” Brokerage, 618 F.3d at 324 n.23. On the other hand, we have held that vague 

statements such as an admonition to competitors to “play by the rules” do not constitute

direct evidence of a conspiracy. See InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 

156 n.5 (3d Cir. 2003) (holding that “cases require that direct evidence of an illegal 

agreement be established with much greater clarity” than the ambiguous statements made 

between bond traders in that case); see also Baby Food, 166 F.3d at 120-21 (rejecting the 

plaintiffs‟ contention that they had adduced direct evidence of a conspiracy when they 
12

provided statements from employees that they had exchanged pricing information with 

their peers and superiors, documentary evidence that the defendants knew of their 

competitors‟ impending price increases, and an internal memorandum referring to a 

“truce” between the defendants).

SOI‟s assertion that Tuttle‟s testimony constitutes direct evidence of concerted 

action is unpersuasive. As the District Court explained, Tuttle‟s deposition testimony 

reflects that he does not recall the exact words that Graves used during the alleged illicit 

conversation, but that he simply got a general sense that there was something wrong 

about the conversation. This vague description of the conversation suggests that Tuttle 

was drawing his own inferences from the words used by Graves. The District Court

properly concluded that it could not accept Tuttle‟s subjective impression as a conclusive 

fact. Tuttle‟s testimony thus is not direct evidence of a conspiracy. 

Because this case involves only circumstantial evidence, we must decide whether 

the District Court correctly determined that SOI did not adduce sufficient evidence of 

parallel conduct – so-called “conscious parallelism” – and other “plus factors” to survive 

summary judgment. To make a successful claim under the Sherman Act based on 

conscious parallelism, “a plaintiff must show (1) that the defendants‟ behavior was 

parallel; (2) that the defendants were conscious of each other‟s conduct and that this 

awareness was an element in their decision-making process; and (3) certain „plus‟ 

factors.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 360 n.11 (3d Cir. 2004) 

(hereinafter, “Flat Glass”). “Plus factors” are “circumstances under which . . . the 

inference of rational independent choice [is] less attractive than that of concerted action.” 
13

Lum v. Bank of Am., 361 F.3d 217, 230 (3d Cir. 2004). We have identified three

potential “plus factors”: “(1) evidence that the defendant had a motive to enter into a 

price fixing conspiracy; (2) evidence that the defendant acted contrary to its interests; and 

(3) evidence implying a traditional conspiracy.” Brokerage, 618 F.3d at 322 (quotation 

marks omitted). The first two factors are generally less important because they “may 

indicate simply that the defendants operate in an oligopolistic market, that is, may simply 

restate the (legally insufficient) fact that market behavior is interdependent and 

characterized by conscious parallelism.” Id. Indeed, when parallel pricing is alleged, 

these first two factors “largely restate the phenomenon of interdependence,” Flat Glass, 

385 F.3d at 360, and thus we have held that “no conspiracy should be inferred from 

ambiguous evidence or from mere parallelism when defendants‟ conduct can be 

explained by independent business reasons.” Baby Food, 166 F.3d at 122; see also

Brokerage, 618 F.3d at 326 (explaining that “a claim of conspiracy predicated on parallel 

conduct” is insufficient when “„common economic experience,‟ or the facts alleged in the 

complaint itself, show that independent self-interest is an „obvious alternative 

explanation‟ for [the] defendants‟ common behavior” (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 565, 567 (2007))). The third factor, on the other hand,

encompasses “non-economic evidence that there was an actual, manifest agreement not to 

compete, which may include proof that the defendants got together and exchanged 

assurances of common action or otherwise adopted a common plan even though no 

meetings, conversations, or exchanged documents are shown.” Flat Glass, 385 F.3d at 

360 (quotation marks and citation omitted). This factor is especially important in cases
14

like this one wherein the plaintiff‟s theory of conspiracy rests on “an agreement among 

oligopolists to fix prices at a supracompetitive level.” Id. at 358.

Our inquiry does not end with the identification of “plus factors.” As we 

explained in Baby Food, 

Once the plaintiffs have presented evidence of the defendants‟ consciously 

parallel pricing and supplemented this evidence with plus factors, a 

rebuttable presumption of conspiracy arises. The mere presence of one or 

more of these „plus factors‟ does not necessarily mandate the conclusion 

that there was an illegal conspiracy between the parties, for the court may 

still conclude, based upon the evidence before it, that the defendants acted 

independently of one another, and not in violation of antitrust laws.

166 F.3d at 122. The Supreme Court has held that the overarching issue in 

considering an antitrust claim brought under § 1 of the Sherman Act is whether 

evidence of parallel conduct was “placed in a context that raises a suggestion of a 

preceding agreement, not merely parallel conduct that could just as well be 

independent action.” Twombly, 550 U.S. at 557.

5

 The relevant analysis thus 

required the District Court to consider all of the available facts to determine if 

there was a genuine dispute as to whether any alleged parallel pricing activity was 

the product of a specific agreement, or whether it was simply the result of the 

defendants‟ independent business judgment.

 

5

 Although Twombly was decided at the motion to dismiss stage, we recently explained 

that Twombly “aligns” the standard for ruling on a motion to dismiss and the standard for 

summary judgment in an antitrust case insofar as “[p]laintiffs relying on circumstantial 

evidence of an agreement must make a showing at both stages (with well-pled allegations 

and evidence of record, respectively) of something more than merely parallel behavior, 

something plausibly suggestive of (not merely consistent with) agreement.” Brokerage, 

618 F.3d at 322 (punctuation and citations omitted).
15

SOI contends that, even if it does not have direct evidence of a conspiracy, this 

case should have survived summary judgment because they alleged sufficient “plus 

factors”6to create an inference of impermissible concerted activity. As noted above, the 

first two “plus factors,” motive and action contrary to self-interest, are not especially 

helpful in price-fixing cases where, as here, there are parallel price increases by 

competitors in a concentrated market. The three defendants all had a motive to conspire 

to fix prices, particularly if SOI is correct that demand was lessening for their services, 

given that joint action would allow them to maintain inflated prices while their customers 

had no other comparable options in light of the defendants‟ collective 90% market share. 

Similarly, although it is against each company‟s self-interest not to compete, concerted 

activity would be in their self-interest for the same profit-enhancing reason. The parallel 

price increases here could just as easily be the result of each company independently 

analyzing the market and realizing that they needed to charge more in order to make a 

profit, given that external circumstances indicated that they would be providing fewer 

services to their customers in the future. Alternatively, given the concentration of the 

helicopter-services market at issue here, such price increases could have just as easily 

been the result of “price leadership” as of price fixing. See Flat Glass, 385 F.3d at 359 

This obvious business reasons for the defendants‟ actions casts serious doubt on whether 

wrongful concerted activity was the real cause of the price increases.

 

6

 The defendants do not contest that they exhibited parallel behavior by raising prices in 

a nearly simultaneous fashion.
16

This case thus hinges on whether SOI has produced any evidence suggesting “an 

actual, manifest agreement not to compete.” Id. at 360 (quotation marks omitted). There

are two pieces of evidence that could arguably fit here. First, Tuttle‟s testimony 

regarding Graves‟ conversation with a competitor would be evidence of an agreement, 

although the District Court found Tuttle‟s deposition testimony so vague that it was 

essentially worthless. The second piece of evidence suggesting an agreement is the 

unnamed helicopter operator‟s remark that despite the fact that universal agreement to the 

increased rates “would be illegal . . . price-fixing,” “everyone more or less agreed to the 

necessity of a more or less equal rate hike for everyone.” In its earlier opinion 

dismissing the first complaint, the District Court stated that “the relevance of the 

operator‟s statement as circumstantial evidence of an agreement is dubious” because 

his statement is ambiguous as to whether he comments on the industry‟s 

lawful but interdependent pricing decisions; casual observations about the 

general convergence of prices among un-named market participants at that 

time; or perhaps an illegal agreement by un-named actors at some 

unspecified point in time.

Superior Offshore Int‟l, 738 F. Supp. 2d at 513.

We agree with the District Court‟s thoughtful analysis. These two pieces of 

evidence are both so vague that they cannot suggest a circumstance in which an 

“inference of rational independent choice [is] less attractive than that of concerted 
17

action.” Lum, 361 F.3d at 230. Quite simply, there is insufficient evidence to create a 

triable issue of fact regarding whether the defendants conspired to fix prices.7

IV.

In an attempt to survive summary judgment despite its failure to produce sufficient 

evidence of concerted activity, SOI argues that it was entitled to the additional discovery 

it requested pursuant to Federal Rule of Civil Procedure 56(d). We review a district 

court‟s denial of a motion for additional discovery under Rule 56(d) for abuse of 

discretion. Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007); Renchenski 

v. Williams, 622 F.3d 315, 339 (3d Cir. 2010).

We typically afford trial courts broad discretion to regulate discovery. See Pub. 

Loan Co., Inc. v. Fed. Deposit Ins. Corp., 803 F.2d 82, 86 (3d Cir. 1986). For this 

reason, in order to overturn a district court‟s ruling to limit discovery, we must generally 

“conclude that there has been an interference with a „substantial right,‟ . . . or that the 

discovery ruling is „seen to be a gross abuse of discretion resulting in fundamental 

unfairness in the trial of the case.‟” Id. (quoting Marroquin-Manriquez v. I.N.S., 699 

F.2d 129, 134 (3d Cir. 1983)). 

A District Court is “obliged to give a party opposing summary judgment an 

adequate opportunity to obtain discovery.” Dowling v. City of Philadelphia, 855 F.2d 

136, 139 (3d Cir.1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Rule 

 

7

 Because we hold that SOI did not present sufficient evidence of concerted action, we 

need not address whether the defendants‟ conduct “imposed an unreasonable restraint on 

trade.” Brokerage, 618 F.3d at 315 (quotations and citations omitted).
18

56(d) (formerly Rule 56(f)) sets forth the procedure when a party alleges that it does not 

possess facts necessary to oppose the motion for summary judgment:

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows 

by affidavit or declaration that, for specified reasons, it cannot present facts 

essential to justify its opposition, the court may:

(1) defer considering the motion or deny it; 

(2) allow time to obtain affidavits or declarations or to take 

discovery; or 

(3) issue any other appropriate order. 

A Rule 56(d) motion is “the proper recourse of a party faced with a motion for 

summary judgment who believes that additional discovery is necessary before he 

can adequately respond to that motion.” Murphy v. Millennium Radio Grp. LLC, 

650 F.3d 295, 309 (3d Cir. 2011). 

A properly filed motion must be accompanied by “a supporting affidavit detailing 

„what particular information is sought; how, if uncovered, it would preclude summary 

judgment; and why it has not previously been obtained.‟” Abington, 480 F.3d at 257 n.3

(3d Cir. 2007) (quoting Dowling, 855 F.2d at 140). “However, because „[a] district court 

has discretion in acting on Rule 56[d] motions,‟ this list of factors is not exhaustive. 

Instead, it „simply offer[s] a guide for the district court to follow in exercising its 

discretion under Rule 56[d].‟” Horvath v. Keystone Health Plan E., Inc., 333 F.3d 450, 

458 (3d Cir. 2003) (quotation marks and citations omitted). 

Here, SOI‟s counsel filed an affidavit with his Rule 56(d) motion identifying nine 

types of discovery that SOI needed to respond adequately to the defendants‟ summary 

judgment motion. This discovery, the affidavit asserted, “will lead to more information 
19

about communications among the Defendants that can be used to prove that Defendants 

conspired to raise prices for offshore helicopter services in the Gulf of Mexico starting in 

2001.” App. 335. In denying this request, the District Court stated that SOI had 

improperly cast a wide “discovery net” because “the foundation for the requests in purely 

speculative. No facts have been presented that suggest further discovery would remedy 

Tuttle‟s conjecture and speculation.” Id. at 22. 

We do not believe the District Court abused its discretion in denying SOI‟s Rule 

56(d) motion. At the outset, it is worth noting that the District Court was well within the 

bounds of its considerable discretion when it elected to limit discovery to the allegations 

added to the amended complaint. Having already – correctly – determined that the initial 

complaint was subject to dismissal absent the new allegations, the District Court afforded 

SOI an opportunity to demonstrate the truth of the allegations made in the amended 

complaint. SOI failed to do so. As noted above, Tuttle‟s vague deposition testimony 

makes clear that the information included in the amended complaint did not accurately 

reflect what Tuttle observed. Tuttle could not recall crucial details, including the identity 

of the person who supposedly conspired with Graves to fix prices. SOI then attempted to 

ameliorate this deficiency by requesting a plethora of discovery, both in a letter request 

and again in its Rule 56(d) motion. As the District Court noted, the majority of the 

discovery sought by SOI “pertain[s] to proof of the alleged parallel pricing conduct [and] 

industry practices” and would thus be of little relevance to demonstrating the existence of 

any “plus factors.” Id. at 20. It was thus proper to conclude that SOI‟s affidavit failed to 

demonstrate how additional discovery would preclude summary judgment.
20

Moreover, SOI failed to exercise diligence in the discovery process since the 

inception of this litigation. As the District Court correctly noted, SOI could have sought 

discovery during the 15-month period after SOI‟s initial complaint was filed and before 

the District Court ruled on the defendants‟ motion to dismiss. Counsel for SOI gave no 

reason for his failure to seek discovery. Thus, for no discernable reason, SOI squandered

its opportunity to take discovery during the significant period of time between the filing 

of the first motion to dismiss and the District Court‟s ruling on that motion. Accordingly, 

we conclude that the District Court did not abuse its discretion in denying SOI‟s Rule 

56(d) motion.

V.

For the foregoing reasons, we will affirm the District Court‟s grant of summary 

judgment in favor of the defendants.