UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 01-60408

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TROY D. BROWN, SR.,

Plaintiff-AppellantCross-Appellee,

versus

MISSISSIPPI VALLEY STATE UNIVERSITY; ET AL.,

Defendants,

ALBERT LEE ABRAHAM, JR.,

Defendant-AppelleeCross-Appellant.

Appeals from the United States District Court

For the Northern District of Mississippi

October 23, 2002

Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Troy D. Brown, Sr. brings an interlocutory appeal of the district court’s grant of summary

judgment in favor of Albert Lee Abraham, Jr. Brown argues that the district court prematurely-2-

dismissed his federal claims against Abraham without permitting adequate disc overy, i ncorrectl y

applied a heightened pleading standard, and dismissed the claims despite the existence of a genuine

issue of material fact. Brown also argues that the district court erred in dismissing his state law

claims against Abraham with prejudice. Abraham cross-appeals, arguing that Brown’s notice of

appeal was untimely

and t hat t he district court abused its discretion in certifying an interlocutory

appeal. We vacate the order of summary judgment and remand for further proceedings.

I

This suit arises out of the decision of Mississippi Valley State University (“MVSU”) not to

renew Brown’s employment as Assistant Dean for Student Affairs. Brown alleges that this decision

was the result of a conspiracy between MVSU officials and Abraham to punish Brown for refusing

to drop his candidacy for Lieutenant Governor and endorse the candidate favored by Abraham.

Brown’s second amended complain t alleges the following: After two years of satisfactory

service as Assistant Dean, Brown informed MVSU President Lester Newman that he intended to seek

the Democratic nomination for Lieutenant Governor, a position with substantial influence over the

state university system. Newman initially encouraged Brown’s candidacy and introduced him to

potential donors. MVSU also granted Brown a thirty-day unpaid leave of absence to campaign.

During this period, Brown met on mult iple occasions with Abraham, a prominent attorney and close

associate of President Newman who was active in state politics. Although Abraham contributed to

Brown’s campaign, he expressed concern that, as an African-American, Brown could not be elected

in Mississippi and that his campaign would harm the Democratic Party as well as Abraham’s favored

candidate for the Party’s nomina t io n, Amy Tuck. When Brown did not withdraw, Abraham

subsequently promised to arrange for the payment of Brown’s campaign expenses in exchange for1 Although Brown init ially brought suit against MVSU and several other named and unnamed

defendants, he subsequentl y dismissed all claims other than those against Newman, Rolle and

Abraham.

-3- Brown’s endorsement of Tuck. Abraham also informed Brown that Abraham had been offered an

appointment in the event that Tuck won. Brown still refused to withdraw from the race.

Brown contends that, upon returning to MVSU from his leave of absence, he was subjected

to unfounded disciplinary action in retaliation for continuing his campaign. Specifically, over a three

week period, Brown was reprimanded by Newman and/or MVSU Vice-President of Student Affairs

Kevin Rolle for failing to return to work on the agreed date, for failing to sign certain student

d isciplinary documents, for using a university-owned laptop while campaigning, and for failing to

properly handle a fire on campus. Also, according to Brown, a business trip to Washington, D.C. was

cancelled and a promised promotion was rescinded. During one meeting with Newman and Rolle,

Newman to ld Bro wn that “the Abrahams” and others had expressed concerns about Brown’s

campaigning while employed at MVSU and that Newman was not going to continue to explain to

them that Brown had been on unpaid leave. At a subsequent meeting with Newman, Brown was

again accused of lying about the use of the laptop and his handling of the on-campus fire. The next

day, Brown was orally informed that his employment with MVSU would not be renewed due to his

lack of honesty. Subsequently, Brown was given a written thirty-day notice of termination.

Brown brought suit under 42 U.S.C. §§ 1983 and 1985, alleging violations of his First

Amendment right to seek public o ffice. 1 In regard to Abraham, Brown alleged that Abraham and

Newman conspired to violate Brown’s constitutional rights by agreeing to discharge him because he

was running for public office. Brown also brought state law claims against Abraham alleging that he

slandered and defamed Brown and maliciously interfered with his employment relationship. The trial2 Abraham’s opposition to Brown’s motion for certification was not received by the district

court until the day after it had signed the order granting Brown’s request for cer t ification. The

district court construed the opposition as a motion to alter or amend pursuant to Federal Rule of Civil

-4- court ordered Brown to t urn o ver audiotapes he had made of certain conversations with the

defendants. All other discovery was stayed pending resolution of any qualified immunity issues and

Abraham’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim.

Brown filed a second amended complaint, attaching sev eral documents related to his

employment at MVSU. Abraham then moved to dismiss the second amended complaint, requesting,

in t he alternative, that summary judgment be granted in his favor. Filed with that motion was an

affidavit from Abraham, with a transcript of the audiotapes attached. In response, Brown’s attorney

filed an affidavit pursuant to Federal Rule of Civil Procedure 56(f) stating that only Newman,

Abraham and persons associated with the Tuck campaign had knowledge of the alleged conspiracy

and requesting discovery to depose those individuals. At that time, the stay of discovery remained

in effect and Brown had not been allowed any discovery. The stay was subsequently lifted on August

2, 2000 and short ly t hereafter a scheduling order was entered requiring that all discovery be

c ompleted by February 1, 2001. On September 15, 2000, six weeks after the stay was lifted, t he

district court granted summary judgment dismissing with prejudice Brown’s claims against Abraham,

finding t hat t he only evidence against Abraham ) ) Newman’s mention of Abraham’s concerns

regarding Brown’s campaigning on university time )) was not, by its elf, sufficient to establish a

conspiracy.

Brown sought certification under Federal Rule of Civil Procedure 54(b) in order to bring an

immediate appeal. The district court certified the issue and stayed further proceedings. 2 Brown filedProcedure 59(e) and denied it, finding that Brown’s claims against Abraham were so intertwined with

the clai ms against Newman and Rolle that judicial economy and efficiency would be served by

interlocutory review.

3 916 F.2d 300 (5th Cir. 1990), amended and reinstated by 941 F.2d 309 (5th Cir. 1991).

-5- a notice of appeal, but subsequently moved this Court to remand the case to the district court for the

purpose of entering judgment in the language of Rule 54(b). We granted this motion and the district

court entered the appropriate order. Brown and Abraham filed notices of appeal.

II

Because the issues raised by Abraham’s cross-appeal would, if resolved in his favor, deprive

us of jurisdiction to consider Brown’s appeal, we consider them first. Abraham first contends that

Brown’s init

ial notice of appeal was untimely because it was filed more than thir ty days after the

district court’s order dismissing the claims against him. This argument is without merit.

Under 28 U.S.C. § 1291, our appellate jurisdiction is limit ed to appeals from “final decisions

of the district courts.” Swope v. Columbian Chems. Co.

, 281 F.3d 185, 191 (5th Cir. 2002).

“Where, as here, an action involves mult iple parties, a disposition of the action as to only some of the

parties do es not result in a final appealable order absent a certification by the district court under

Federal Rule of Civil Procedure 54(b).” Transit Mgmt. of Southeast La., Inc. v. Group Ins. Admin.,

Inc.

, 226 F.3d 376, 381 (5th Cir. 2000). As we discussed in D ibidale of Louisiana v. American Bank

& Trust Co.

, 3 a Rule 54(b) certification does not apply retroactivel y to the date of the ori gi nal

judgment. Instead, the judgment becomes final and appealable when certified under Rule 54(b). I d.

at 304. Thus, for purposes of Federal Rule of Appellate Procedure 4, a judgment becomes final on

the date of entry of the Rule 54(b) certification, not the date on which the partial judgment is entered.

Brown’s initial notice of appeal was premature at the time it was filed. See F ED

. R. A PP

. P.-6-

4(a)(1)(A) (requiring that notice o f appeal in a civil case be filed within 30 days after entry of the

appealable order or judgment). When we granted Brown’s motion to remand to the district court for

the purpose of entering a judgment in the language of Rule 54(b), we implicitly recognized that no

appealable judgment had yet been entered. The district court’s judgment dismissing the claims against

Abraham did not become final until the district court entered the appropriate Rule 54(b) certification

on remand, at which point Brown’s init ial notice of appeal matured. S ee Fed. R. App. P. 4(a)(2) (“A

no t ice of appeal filed after the court announces a decision or order ) ) but before the entry of the

judgment or order )) is treated as filed on the date of and after the entry.”); see also FirsTier Mortg.

Co. v. Investors Mortg. Ins . Co. , 498 U.S. 269, 274 (1991) (“[W]e conclude that Rule 4(a)(2)

permits a notice of appeal filed from certain nonfinal decisions to serve as an effective notice from

a subsequently entered final judgment.”) (f ootnote omitted). Thus, Brown’s first notice of appeal was

timely, and the filing of a second notice was unnecessary.

A braham also contends that the district court erred in granting the request for Rul e 54(b)

certification because interlocutory review will result in piecemeal litigation of Brown’s conspiracy

claims as well as premature adjudication of the claims against the remaining defendants. We review

a district court’s decision to certify under Rule 54(b) for an abuse of discretion. F ederal Sav. & Loan

Ins. Corp. v. Cribbs

, 918 F.2d 557, 559 (5th Cir. 1990). Although Rule 54(b) requests should not

be granted routinely, “[i]t is left to the sound judicial discretion of the district court to determine the

‘appropriate time’ when each final decision in a mult iple claims action is ready for appeal.” C urtissWright Corp. v. General Elec. Co.

, 446 U.S. 1, 8 (1980). In making this decision, the district court

must consider “judicial administrative interests as well as the equities involved.” I d. So long as the

district court’s certification is not “clearly unreasonable,” it will not be disturbed. Id . at 10.4 The district court stated that because it considered matters outside the pleadings, it treated

Abraham’s motion to dismiss as a motion for summary judgment under Rule 56. This determination

was clearly appropriate. Washington v. Allstate Ins. Co.

, 901 F.2d 1281, 1284-85 (5th Cir. 1990)

(“Where matters outside the pleadings are considered by the district court on a motion to dismiss,

Rule 12(b) requires the court to treat the motion as one for summary judgment and to dispose of it

as required by Rule 56.”). Thus, Brown is incorrect when he contends that the district court should

have applied the standard of Rule 12(b) to his claims against Abraham.

-7- The district court did not abuse its discretion in certifying Brown’s appeal. It was reasonable

fo r t he district court to certify an appeal on the question of whether Abraham has been properly

dismissed from this case before proceeding with the claims against Newman, because the conspiracy

claims against them are intertwined. Abraham has not adequately explained how our consideration

of this appeal will harm the remaining defendants, nor is any harm apparent.

III

We now turn to the issues raised by Brown’s appeal. Preliminarily, Brown argues that the

district court erred in granting Abraham’s motion for summary judgment without permitting Brown

to depose the defendants and other individuals with knowledge of the conspiracy. 4 We agree.

We review a district court’s decision to cut off discovery in order to rule o n summary

judgment for an abuse of discretion. M oore v. Willis Indep. Sch. Dist.

, 233 F.3d 871, 876 (5th Cir.

2000); Krim v. BancTexas Group, Inc. , 989 F.2d 1435, 1441 (5th Cir. 1993). Summary judgment

assumes some discovery. S ee F.D.I.C. v. Shrader & York

, 991 F.2d 216, 220 (5th Cir . 1993)

(“Summary judgment is appropriate if, after discovery

, there is no genuine dispute over any material

fact.”) (citing Celotex Corp. v. Catrett

, 477 U.S. 317 (1986), Anderson Liberty Lobby, Inc.

, 477 U.S.

242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp.

, 475 U.S. 574 (1986)) (emphasis

added); see also Little v. Liquid Air Corp.

, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (“Rule 56

‘mandates the ent ry o f summary judgment, a fter adequate time for discovery and upon motion,5 We recognize our prior decisions stating that “Rule 56 does not require that any discovery

take place before summary judgment can be granted.” W as hington , 901 F.2d at 1285; s ee also

United States v. Bloom ,112 F.3d 200, 205 n.17 (5th Cir. 1997) (same); Potter v. Delta Airlines, Inc.

, 98 F.3d 881, 887 (5th Cir. 1996) (same); Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit

, 28 F.3d 1388, 1396 (5th Cir. 199 4) (same). However, this broad language

notwithstanding, these cases stand only for the proposition th a t parties cannot evade summary

judgment simp ly by arguing that additional discovery is needed; rather, they must meet the

requirements of Rule 56(f). S ee Washington

, 901 F.2d at 1285 (“if a party cannot adequately defend

[against a summary judgment] motion, Rule 56(f) is his remedy”). Federal Rule of Civil Procedure

56(f) is an alternative to opposing summary judgment by affi davit and is “designed to safeguard

against a premature or improvident grant of summary judgment.” I d. ; see also 10A C HARLES A LAN

W RIGHT ET AL

. , F EDERAL P RACTICE AND P ROCEDURE § 2740 (3d ed. 1998). A party opposing

summary judgment under Rule 56(f) must demonstrate (1) why additional discovery is needed and

(2) how the additional discovery will likely create a genuine issue of material fact. Stearns Airport

Equip. Co., Inc. v. FMC Corp.

, 170 F.3d 518, 534-35 (5th Cir. 199 9); K rim

, 989 F.2d at 1442.

“Such motions are generally favored, and should be liberally granted.” S tearns

, 170 F.3d at 534.

Where the evidence that the non-moving party contends will create a genuine issue for trial is in the

exclusive possession of the moving party, “‘a continuance of a motion for summary judgme n t for

purposes of discovery should be granted almost as a ma tter of course.’” I nt’l Shortstop, Inc. v.

Rally’s, Inc.

, 939 F.2d 1257, 1267 (5th Cir. 1991) (quoting Sames v. Gable

, 732 F.2d 49, 51 (3d Cir.

1984)).

-8- against a party who fails to make a showing sufficient to establish the exist ence o f an element

essential to that party’s case

. . . .’”) (quoting Celotex Corp.

, 477 U.S. at 322) (emphasis added). The

Supreme Court has stated that summary judgment should be entered against a plaint iff who does not

raise a genuine issue of material fact “even where the evidence is likely to be within the possession

of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery. ” A nderson

,

477 U.S. at 257 (emphasis added). Although the district court may cut off discovery when the record

shows that further discovery is not likely to produce the facts needed to withsta nd the moti on f or

s ummary judgment, W

ashington

, 901 F.2d at 1285, “[w]hen a party is not given a full and fair

opportuni ty to discover information essential to its opposition to summary judgment, the limitation

on discovery is reversible error.” A ccess Telecom, Inc. v. MCI Telecomm. Corp.

, 197 F.3d 694, 720

(5th Cir. 1999). 56 Brown also argues that the district court incorrectly applied a heightened pleading standard,

erred in granting summary judgment due t o the existence of a genuine issue of material fact, and

incorrectly dismissed the state law claims against Abraham with prejudice. Because we remand to

the district court for discovery, we do not reac h t hese issues except to note that unadjudicated

pendant state law claims must be dismissed without prejudice to allow the plaintiff to refile in state

-9- Here, with the ex cept io n of the compelled disclosure of the audiotapes, the district court

st ayed all discovery prior to the filing of Abraham’s motion to dismiss or for summary judgment

.

Brown properly responded to t he mo t io n by filing a Rule 56(f) affidavit. In this affidavit, he

requested the opportunity to depose the defendants and unspecified individuals associated with the

Tuck campaign and argued that this discovery was necessary because these were the only persons

with kn o wledge of the alleged conspiracy between Abraham and Newman. The stay was

subsequently lift

ed and the district court in its scheduling order indicated that the parties would have

approximately five months to complete discovery. However, the district court granted summary

judgment in favor of Abraham only six weeks after lift ing of the stay. The district court did not rule

on Brown’s request for discovery but granted summary judgment on the gr ounds that there was

insufficient evidence of Abraham’s involvement in a conspiracy, precisely the type of evidence sought

by Brown. Under these circumstances, we conclude that the grant of summary judgment was an

abuse of discretion. S ee, e.g.

, Int’l Shortsto p , 939 F.3d at 1267-68 (vacating summary judgment

where district court impr o perly disregarded plaintiff’s timely and specific requests for relevant,

necessary discovery).

IV

For the foregoing reasons, the district court ’s o rder granting summary judgment and

dismissing all claims against defendant Albert Lee Abraham, Jr. is VACATED, and this case is hereby

REMANDED for further proceedings consistent with this opinion. 6c o urt when a district court dismisses the federal claims serving as the basis for its jurisdiction and

elects not to exercise supplemental jurisdiction over the state law claims. B ass v. Parkwood Hosp.

, 180 F.3d 234, 246 (5th Cir. 1999).

-10-