United States Court of Appeals

For the First Circuit

No. 12-2419

BETZAIDA RIVERA-ALMODÓVAR,

Plaintiff, Appellant,

v.

INSTITUTO SOCIOECONÓMICO COMUNITARIO, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]

Before

Torruella, Selya and Howard,

Circuit Judges.

Johanna M. Emmanuelli Huertas and Pedro Ortiz Álvarez, LLC on

brief for appellant.

Carlos George-Iguina and O'Neill & Borges, LLC on brief for

appellees.

September 11, 2013
SELYA, Circuit Judge. When a party takes a languid

approach both to completing pretrial discovery and to the imminent

threat posed by a motion for summary judgment, bad things usually

happen. Although such a party may scramble valiantly to regain

lost ground, he should not be surprised to encounter an

inhospitable reception. "[C]ourts — like the Deity — are more

prone to help those who help themselves." Williams v. Drake, 146

F.3d 44, 50 (1st Cir. 1998). So it is here.

I. BACKGROUND

The facts giving rise to the underlying litigation are

chronicled in the magistrate judge's report and recommendation, see

Rivera-Almodóvar v. Instituto Socioeconómico Comunitario, Inc., No.

10-1885, slip op. at 1-10 (D.P.R. July 5, 2012) (unpublished), and

it would be pleonastic to rehearse them here. We offer instead a

brief sketch limning the origin and travel of the case.

Plaintiff-appellant Betzaida Rivera-Almodóvar began

working for defendant-appellee Instituto Socioeconómico

Comunitario, Inc., commonly known by its acronym "INSEC," in 1988. 

She worked her way up to a supervisory position. Over time,

however, storm clouds gathered; starting in 2003, employees under

her charge began complaining that she was guilty of misconduct,

mistreatment, and abuse. INSEC responded by meting out a series of

progressive disciplinary sanctions (including demotion and

suspension). When these measures proved ineffectual, INSEC

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terminated the plaintiff's employment on August 10, 2009. It

premised this adverse employment action on performance-related

grounds.

The plaintiff repaired to the federal district court. 

She sued her employer and several of its hierarchs (collectively,

"INSEC"), alleging that she had been cashiered in violation of the

Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634,

and local law.

In its initial scheduling order, see Fed. R. Civ. P.

16(b), the district court set a discovery deadline of October 30,

2011. This deadline encompassed a period of more than a year after

the commencement of the action and more than seven months after the

initial scheduling conference itself. The order contained a stern

warning: any motion seeking to extend the discovery deadline must

show good cause and "must be filed well in advance of the

deadline."

On October 12, 2011, the plaintiff filed an unopposed

motion to extend the discovery deadline to November 15, alluding,

inter alia, to an unanswered discovery request. That request

sought production of various documents including contracts,

grievances and information about certain personnel actions. The

plaintiff averred that production of these documents was a

necessary prerequisite to the taking of two anticipated

depositions. The district court allowed the extension.

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At the end of October, INSEC delivered several documents

to the plaintiff. On November 15 — the last day of the extended

discovery period — the plaintiff claimed for the first time that

these documents were not responsive to her August 19 request for

production. At 7:38 p.m. on that evening, her attorney sent an email to this effect to opposing counsel. INSEC did not respond,

and the discovery period expired.

Two days later, the plaintiff moved for a further

extension of the deadline. She again cited her need for the

requested documents and the two depositions. INSEC opposed the

motion, maintaining that the plaintiff had been accorded ample time

to conduct discovery and that her professed plight was attributable

to her own lack of diligence. INSEC also noted that most of the

requested documents did not exist and that others were so vaguely

described that compliance was impossible.

Acting pursuant to a reference order, see Fed. R. Civ. P.

72(a), a magistrate judge denied the extension motion on December

14, 2011. The magistrate judge wrote: "Plaintiff cannot simply sit

on her hands until after the discovery period has expired and then

claim that defendants have not complied with their discovery

obligations."

In the meantime, INSEC had moved for summary judgment,

asserting that the plaintiff's unacceptable job performance, rather

than any age animus, led to her dismissal. The plaintiff responded

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to both the magistrate judge's ruling and the summary judgment

motion by filing an omnibus motion entitled "Motion for

Reconsideration of Extension of Denial for Discovery and Under Rule

56(D); And Motion to Compel." This motion functioned not only as

a petition to reconsider the magistrate judge's ruling but also as

a request for relief under Rule 56(d).

In the motion, the plaintiff claimed that the court's

denial of her motion to extend discovery amounted to "harsh and

unusual punishment." She posited that INSEC's failure to

accomplish the document production left her "defenseless" and

unable to respond adequately to the summary judgment motion. 

Accordingly, she beseeched the court to reconsider its denial of

her request to extend the discovery deadline, allow further

discovery, and defer a decision on summary judgment pursuant to

Rule 56(d).

The magistrate judge summarily denied the plaintiff's

motion in all respects. He subsequently recommended the entry of

summary judgment in favor of INSEC on the plaintiff's ADEA claim. 

Rivera-Almodóvar, supra, at 21. The district court adopted these

recommendations,1

 and this timely appeal followed.

1

 The magistrate judge also recommended that the claims under

Puerto Rico law be dismissed without prejudice. Rivera-Almodóvar,

supra, at 21. The district court, declining to exercise

supplemental jurisdiction, see 28 U.S.C. § 1367(c), adopted this

recommendation as well. This ruling is not challenged on appeal.

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II. ANALYSIS

Before us, the plaintiff does not contest the merits of

the summary judgment order. Rather, she argues that the court

abused its discretion by denying (i) a discovery extension and (ii) 

Rule 56(d) relief. We address these procedural arguments

sequentially.

A. Discovery Extension.

In passing upon the district court's refusal to extend

the discovery deadline, we bear in mind that review of a district

court's exercise of its case management authority is highly

deferential. See Thibeault v. Square D Co., 960 F.2d 239, 242 (1st

Cir. 1992). Consequently, appellate review of a district court's

case management orders, such as a scheduling order, is solely for

abuse of discretion. See Vélez v. Awning Windows, Inc., 375 F.3d

35, 41 (1st Cir. 2004).

In the ordinary course, a litigant who seeks an extension

of time must show good cause for the desired extension. See Fed.

R. Civ. P. 6(b)(1). But where, as here, the litigant is faced with

an expired deadline, more is required: she must show that her

failure to request an extension in a timeous manner constitutes

excusable neglect. See id.

In federal civil procedure, "excusable neglect" is a term

of art. It encompasses "inadvertence, mistake, or carelessness, as

well as . . . intervening circumstances beyond the party's

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control." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

P'ship, 507 U.S. 380, 388 (1993). Determining the existence vel

non of excusable neglect is an equitable exercise that takes into

account the totality of the circumstances. See id. at 395;

Nansamba v. N. Shore Med. Ctr., Inc., ___ F.3d ___, ___ (1st Cir.

2013) [No. 13-1266, slip op. at 10]. Even so, a lawyer's

"inattention or carelessness," without more, "normally does not

constitute 'excusable neglect.'" Dimmitt v. Ockenfels, 407 F.3d

21, 24 (1st Cir. 2005).

Here, the plaintiff does not point to any relevant

circumstances that were beyond her control. She relies instead on

INSEC's alleged failure to comply promptly and fully with her

request for production of documents. We conclude, however, that

the district court had good reason to believe that the plaintiff's

plight was the result of her lackadaisical approach to discovery. 

She sat on her hands for nearly a year before requesting the

disputed documents in August and then let her request linger during

the three months between its promulgation and the expiration of the

extended discovery deadline. The evidence of record indicates that

the only action that she took to procure these supposedly vital

documents prior to that looming deadline was an e-mail to opposing

counsel on the evening of the last day of the extended discovery

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period.2 We think that the court below, in the exercise of its

discretion, was entitled to regard this last-minute effort as too

little and too late.

The plaintiff counters by noting that her first motion

for an extension of the discovery deadline mentioned her

outstanding discovery request. That motion, however, did not seek

either to compel discovery or otherwise to advance her outstanding

request. Merely alluding to the outstanding request in passing was

of little moment.

In an apparent attempt to divert attention from her

record of passivity, the plaintiff insists that obtaining the

sought-after discovery prior to the deadline would have required

heroic measures. This is important, she says, because "the burden

of compliance lies foremost with the party from whom the discovery

is sought." Carmona v. Toledo, 215 F.3d 124, 135 (1st Cir. 2000)

(internal quotation mark omitted). We think that this is an overly

simplistic view. While a requestor may not be required to take

heroic measures to assure compliance, see id., she cannot simply

ask for discovery and then forget about it. See Rivera-Torres v.

Rey-Hernández, 502 F.3d 7, 11 (1st Cir. 2007).

2

 In their briefs, the parties dispute whether the plaintiff

followed up via telephone regarding the outstanding documents. 

What is important for present purposes is that there is no evidence

of record indicating any pursuit of these documents prior to the

aforementioned e-mail.

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The plaintiff's situation did not call for heroic

measures but, rather, for a routine motion to compel. See Fed. R.

Civ. P. 37(a). A motion to compel is a standard tool, well within

the capability of any reasonably diligent litigant. The Civil

Rules furnish litigants with this tool for a reason, and the tool

should be employed when — as in this case — its use is appropriate.

Of course, Rule 37 requires that a party who wants to

file a motion to compel must make a good faith effort to negotiate

with the nonresponsive party. See Fed. R. Civ. P. 37(a)(1);

D.P.R.R. 26(b). This requirement, the plaintiff laments, hampered

her ability to make a motion to compel because she could not

negotiate until she had figured out that the documents the

defendants produced at the end of October were nonresponsive to her

August request.

This lamentation is triply flawed. First, it overlooks

that the plaintiff did not seek production of the documents for

nearly a year after she brought suit. Second, it overlooks that

the plaintiff has offered no evidence that she did anything but sit

idly by from August until mid-November without trying either to

negotiate compliance or to compel production.3

 Third, it overlooks

the absence of any explanation as to why it took the plaintiff over

3 While the good-faith provision of Rule 37(a)(1) serves a

useful purpose, we do not think that it countenances the sort of

hopeful waiting in which the plaintiff engaged here.

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two weeks to match the documents produced with the demand for

production.

The plaintiff's procrastination is especially egregious

in light of the district court's bold print warning that requests

for extensions of the discovery deadline were to be filed prior to

the expiration of that deadline. The plaintiff has shown no good

cause for disregarding this aposematic warning. Where, as here, a

district court in the exercise of its case-management authority

"sets a reasonable due date, parties should not be allowed casually

to flout it or painlessly to escape the foreseeable consequences of

noncompliance." Vélez, 375 F.3d at 41.

The plaintiff has a fallback position. She claims that

INSEC's objections to her discovery requests were overbroad and

lacked specificity. Regardless of whether this characterization is

accurate, it is beside the point. In assessing the district

court's decision to deny the plaintiff's untimely motion for an

extension, our focus is on the plaintiff's acts and omissions. Two

wrongs do not make a right, and nothing about INSEC's objections

explains the plaintiff's failure to make the slightest effort to

ensure that discovery was completed within the allotted timeframe.

To say more on this issue would be to paint the lily. 

The short of it is that the denial of the plaintiff's untimely

motion for an extension fell within the broad compass of the

district court's discretion.

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B. Rule 56(d).

We turn next to the plaintiff's entreaty that the

district court should have granted Rule 56(d) relief.4

 Rule 56(d)

serves a valuable purpose. It protects a litigant who justifiably

needs additional time to respond in an effective manner to a

summary judgment motion. See Vargas-Ruiz v. Golden Arch Dev.,

Inc., 368 F.3d 1, 3 (1st Cir. 2004). Such a need may arise

because, say, a party has not had a fair opportunity to conduct

necessary discovery. See Vélez, 375 F.3d at 39.

Rule 56(d) is not self-executing but, rather, must be

appropriately invoked. See id. In order to obtain its benefit,

the moving party must by affidavit or in some other authoritative

manner:

(i) explain[] his or her current inability to

adduce the facts essential to filing an

opposition, (ii) provide[] a plausible basis

for believing that the sought-after facts can

be assembled within a reasonable time, and

(iii) indicate[] how those facts would

influence the outcome of the pending summary

judgment motion.

4

 We have described the function of Rule 56(d), formerly Rule

56(f), in the following way: "if a party opposing summary judgment

shows that, for specified reasons, it cannot present facts

essential to justify its opposition, the court may grant

appropriate relief." Jones v. Secord, 684 F.3d 1, 6 (1st Cir.

2012) (internal quotation marks omitted). To avoid any confusion,

we note that, notwithstanding the renumbering of the Rules, our

earlier cases under former Rule 56(f) remain good law vis-à-vis

current Rule 56(d). See Nieves-Romero v. United States, 715 F.3d

375, 381 n.3 (1st Cir. 2013); see also Fed. R. Civ. P. 56 advisory

committee's note.

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Id. at 40.

But there is a caveat: the rule "is not designed to give

relief to those who sleep upon their rights." Rivera-Torres, 502

F.3d at 10. It follows that "a party seeking to derive the benefit

of [this rule] must demonstrate due diligence both in conducting

discovery before the emergence of the summary judgment motion and

in pursuing an extension of time once the motion has surfaced." 

Id. at 11.

We review a district court's denial of a Rule 56(d)

motion for abuse of discretion. See id. at 10; Resolution Trust

Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.

1994). We discern no abuse of discretion here.

To make use of Rule 56(d), a party "must demonstrate good

cause for failure to have conducted the discovery earlier." 

Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d

985, 988 (1st Cir. 1988). Here, the plaintiff's attempt to portray

herself as diligent for this purpose requires the same analysis as

did our examination of her professed diligence in seeking a further

extension of the discovery deadline. See supra Part II(A). Thus,

we need neither repastinate soil already well plowed nor construct

a lengthy exegesis explaining why the district court had room to

find that the plaintiff failed diligently to pursue discovery. As

recounted above, the plaintiff slumbered through discovery and

never seasonably availed herself of the discovery-enforcement tools

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that were at her disposal. This sort of circumstance has

considerable force in our review of the denial of a Rule 56(d)

motion. See, e.g., Rivera-Torres, 502 F.3d at 11; Mass. Sch. of

Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 45 (1st Cir.

1998). "Although a district court should generally apply Rule

[56(d)] liberally, the court need not employ the rule to spare

litigants from their own lack of diligence." Paterson-Leitch Co.,

840 F.2d at 989.

That ends this aspect of the matter. We conclude that

the plaintiff's lack of diligence in pursuing discovery was, on the

facts of this case, a sufficient reason for the district court, in

its discretion, to deny relief under Rule 56(d). After all, Rule

56(d) is meant "to minister to the vigilant, not to those who

slumber upon perceptible rights." Resolution Trust, 22 F.3d at

1203.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

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