UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MIR S. IQBAL, )

 )

Plaintiff )

 )

v. ) CIVIL NO. 2:12 cv 56

 )

TEJASKUMAR M. PATEL, WARREN )

JOHNSON, S-MART PETROLEUM, INC.,)

 )

Defendant )

********************************)

WARREN JOHNSON, S-MART )

PETROLEUM, INC., )

 )

Counter Claimants )

 )

v. )

 )

MIR S. IQBAL, )

 )

Counter Defendant )

OPINION AND ORDER

This matter is before the court on the Verified Motion

Pursuant to Federal Rules of Civil Procedure 56(d) filed by the

plaintiff, Mir S. Iqbal, on June 15, 2012. For the reasons set

forth below, the motion is DENIED.

Background

The plaintiff, Mir S. Iqbal, filed his complaint in the

present case on February 3, 2012, claiming fraud and violations

of the RICO Act on the part of Tejashkumar M. Patel, Warren

Johnson, and S-Mart Petroleum. The complaint was based on the

actions taken by the defendants when the parties entered a Motor

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Fuel Sales Agreement and the defendants sold him motor fuels

pursuant to the agreement. Iqbal complains that these actions

were part of a scheme to defraud him. 

Discovery was stayed on May 11, 2012, pending the filing of

motions for summary judgment. A few days later, the defendants

filed a motion for summary judgment, arguing that Iqbal’s claims

are barred by the doctrines of res judicata and accord and

satisfaction. The defendants contend that S-Mart Petroleum

obtained a judgment against Iqbal, S-M-1, and M & U in two

separate cases before the Tippecanoe Superior Court II. S-Mart’s

judgment against Iqbal and S-M-1 was entered pursuant to a

settlement agreement. The defendants maintain that if Iqbal

desired to pursue the issues raised in his current complaint,

they should have been raised during the litigation before the

Tippecanoe Superior Court II. Iqbal responded by filing the

present motion for additional discovery. Iqbal complains that he

needs additional discovery to contradict the affidavits submitted

by the defendants. 

Discussion

Federal Rule of Civil Procedure 56(d) states1, "If a party

1

 Federal Rule of Civil Procedure 56 was amended in 2010. Subsection

(d) was carried forward without substantial change from prior subdivision (f).

Fed.R.Civ.P. 56 Advisory Committee Notes. Therefore, some of the cases the

court cites may refer to Rule 56(f), but the current Rule 56(d) analysis is

essentially the same.

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opposing the motion 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."

In order to succeed on a Rule 56(d) motion, the plaintiff must

identify the specific evidence which would create a genuine issue

of fact. American Needle, Inc. v. National Football League, 538

F.3d 736, 740 (7th Cir. 2008) (overturned on other grounds).

"Summary judgment should not be entered 'until the party opposing

the motion has had a fair opportunity to conduct such discovery

as may be necessary to meet the factual basis for the motion.'"

Chalimoniuk v. Interstate Brands Corporation, 172 F.Supp.2d 1055,

1057–58 (S.D. Ind. 2001) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Rule

56(d) is not meant to allow a party to block summary judgment

simply by offering generalities about the need for further

discovery. Woods v. City of Chicago, 234 F.3d 979, 990–91 (7th

Cir. 2001). "Rule [56(d)] does not operate to protect parties

who are dilatory in the pursuit of discovery." Allan Block Corp.

v. County Materials Corp., 588 F.Supp.2d 976, 980 (W.D. Wis.

2008) (citing Doty v. Illinois Cent. R. Co., 162 F.3d 460, 461–62

(7th Cir. 1998)).

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A court may grant a Rule 56(d) motion on the grounds that

issues of material fact exist and that the requesting party is

entitled to conduct discovery. See Chalimoniuk, 172 F.Supp.2d at

1057–58 (granting Rule 56(d) motion when plaintiff moved for

summary judgment before any discovery had taken place). Likewise,

when issues material to the outcome are in question, the full

benefit of discovery is preferable. Chalimoniuk, 172 F.Supp.2d at

1059.

However, a court may deny a Rule 56(d) motion when a party

fails to pursue discovery in the allotted time frame. See Allan

Block Corporation, 588 F.Supp.2d at 980–81 ("It would be . . .

inappropriate to continue trial to permit yet another period of

discovery when plaintiff has failed to take full advantage of two

lengthy opportunities for discovery."). See also Hu v. Park

National Bank, 333 Fed.Appx. 87, 89–90 (7th Cir. 2009) (affirming

denial of Rule 56(d) motion because the plaintiff "did nothing

during discovery" and waited until two months after Park National

Bank had filed its motion for summary judgment to ask for additional time for discovery). Likewise, a court may deny a Rule

56(d) motion because the requesting party has failed to identify

with specificity the evidence it hopes to obtain with the additional discovery and how it would create a genuine issue of

material fact. See American Needle, Inc., 538 F.3d at 740

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(affirming district court's denial of Rule 56(d) motion). In

short, the moving party must show: (1) good cause for the discovery delays; (2) the specific discovery that is necessary to

prepare a response to the motion for summary judgment; and (3)

that the additional discovery will give rise to a genuine issue

of material fact. Bernegger v. Gray & Associates LLP, 2009 WL

3148723, *3 (E.D. Wis. 2009).

Iqbal’s motion fails to satisfy the requirements of Rule 56. 

To begin, Rule 56 sets forth specific procedural requirements and

states that the motion must be accompanied by an affidavit or

declaration showing that it cannot present facts essential to

justify its position without additional discovery. Iqbal’s motion

was not accompanied by the required affidavit or declaration. See

Rule 56(d) (explaining that the movant must show additional

discovery is necessary by affidavit or declaration); Waterloo

Furniture Components, Ltd. v. Haworth, Inc., 467 F.3d 641, 648

(7th Cir. 2006) (same); Bernegger, 2009 WL 3148723 at *4 (explaining that failure to attach an affidavit as required by Rule

56(d) was fatal to the movant's motion). The closest Iqbal comes

to satisfying this requirement is the statement in his motion

that he needs additional facts to contradict the defendants’

affidavits. However, even his motion is devoid of any explanation of why the information he seeks is necessary to create a

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genuine issue of material fact, nor is it apparent that additional discovery is necessary. 

The pending motion for summary judgment is based on the

doctrines of res judicata and accord and satisfaction. S-Mart

obtained a judgment against Iqbal and S-M-1 in Tippecanoe Superior Court II. That judgment was entered pursuant to a settlement agreement which provided for the execution of a note, mortgage, and entering a new Motor Fuel Sales Agreement. S-Mart

Petroleum also obtained a judgment against Iqbal and M & U in the

same court. It is the defendants’ position that the Tippecanoe

litigation was based on the same material facts as the current

complaint, and for this reason, if Iqbal desired to pursue the

issues raised in his complaint, he was required to do so in the

previous litigation. Additionally, by settling the case, Iqbal

is barred by the doctrine of accord and satisfaction from proceeding with his claims. Because the motion for summary judgment

is based entirely on the events of the previous litigation, the

defendants argue that all of the facts necessary to decide the

motion for summary judgment are contained in the pleadings of the

Tippecanoe Superior Court II. 

Iqbal responded that he identified the depositions he

desires to take and hopes to obtain information about any and all

business relationships the defendants had with each other at the

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time of the events giving rise to his complaint. Iqbal believes

this will help support his position that the defendants colluded

to take over a gas station they caused him to purchase. However,

he does not explain how this will create a genuine issue of

material fact and help him avoid summary judgment on the issues

raised by the defendants. It is not apparent that the collusive

activities of the defendants have any relationship to whether the

issues previously were decided, settled, or should have been

raised. Iqbal has not satisfied his burden and explained why the

information he seeks is relevant to the issues raised in the

pending motion for summary judgment. The court cannot rely on

his boilerplate statements that he needs additional discovery to

contradict the defendants’ affidavits without greater explanation

of the information he seeks and its importance to creating a

genuine issue of material fact. His shortcomings are fatal to

his request.

_______________

For the foregoing reasons, the Verified Motion Pursuant to

Federal Rules of Civil Procedure 56(d) filed by the plaintiff,

Mir S. Iqbal, on June 15, 2012, is DENIED. Iqbal’s response to

the defendants’ motion for summary judgment shall be filed within

21 days of this Order.

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ENTERED this 13th day of December, 2012

s/ ANDREW P. RODOVICH

 United States Magistrate Judge

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