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JEFFRIES v. DELOITTE TOUCHE TOHMATSU INTL.

July 11, 1995

DANIELLE JEFFRIES, Plaintiff,
v.
DELOITTE TOUCHE TOHMATSU INTERNATIONAL, Defendant.



The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 July 11, 1995

 I. BACKGROUND

 Plaintiff Danielle Jeffries filed a complaint in this Court on June 17, 1994, alleging that DTTI unlawfully discriminated against her on account of her race. On November 2, 1994, DTTI responded with a motion to dismiss, in which it claimed it never employed Ms. Jeffries. Along with its Rule 12(b)(6) motion, DTTI submitted the affidavit of its Chief Operating Officer ("COO"), who stated that DTTI is a Swiss Verein *fn1" that provides coordination services among its member firms, one of which is Deloitte & Touche. On January 6, 1995, this Court issued an Order in which we advised Ms. Jeffries that in light of DTTI's affidavit, we would convert DTTI's motion into one for summary judgment, pursuant to Rule 12(b). *fn2" In addition, we allowed Ms. Jeffries 30 days in which to submit materials sufficient to create an issue of fact regarding whether DTTI was her employer. The case was placed in the civil suspense file from January 19 through May 16, 1995. Then, on May 22, 1995, we issued a scheduling order in which we commanded the parties to conclude discovery by August 21, 1995.

 On June 1, 1995, Ms. Jeffries submitted a supplemental memorandum in opposition to DTTI's motion for summary judgment in which it requested, under Rule 56(f), a continuance of the summary judgment motion so that more discovery could be conducted on the issue of the alleged employment relationship. In an attached affidavit, Ms. Jeffries states that letterhead and business cards given to her alleged employer bore the name Deloitte Touche Tohmatsu International. Further, she asserts that she is "not presently able to present by affidavit or by other means detailed additional evidence contradictory of defendant's claim that it was not [her] employer." In response, DTTI argues that the nature of the relationships among DTTI, Deloitte & Touche, and Ms. Jeffries is clear from the evidence submitted thus far, and that to engage in additional discovery on the issue would be to burden DTTI needlessly.

 II. DISCUSSION

 A. Rule 56(f)

 Ms. Jeffries' request for a continuance is filed pursuant to Rule 56(f), which provides as follows:

 
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 order as is just.

 Fed. R. Civ. P. 56(f). It is within the trial court's discretion to determine whether the justification a plaintiff presents warrants the continuance of a summary judgment motion. Lunderstadt v. Colafella, 885 F.2d 66, 71-72 (3d Cir. 1989); Hancock Indus. v. Schaeffer, 619 F. Supp. 322, 327 (E.D. Pa. 1985)(citing Mid-South Grizzlies v. National Football League, 720 F.2d 772 (3d Cir. 1983), cert. denied, 467 U.S. 1215, 81 L. Ed. 2d 364, 104 S. Ct. 2657 (1984)). In exercising our discretion, we are aware that Rule 56(f) motions are routinely granted in cases where the information sought is "solely in possession of" the party seeking summary judgment. Contractors Ass'n v. City of Philadelphia, 945 F.2d 1260, 1263 (3d Cir. 1991)(emphasis added). However, there are a number of exceptions to this general rule. Indeed, where a plaintiff's Rule 56(f) motion is "based on pure speculation and raises merely colorable claims" regarding potential liability, the court acts within its discretion when it denies the motion. Hancock, 619 F. Supp. at 327 (citing Mid-South Grizzlies, 720 F.2d at 780 and United States v. Donlon, 355 F. Supp. 220 (D. Del.), aff'd without op., 487 F.2d 1395 (3d Cir. 1973)). Moreover, the general rule does not apply if the non-moving party "has the information it seeks in its own possession or can get it from a source other than the movant." Contractors, 945 F.2d at 1263. Finally, if the non-moving party has had an adequate opportunity to discover the information, then summary judgment may be granted even if the information is solely in the possession of the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 After a careful review of the parties' submissions, we conclude that Ms. Jeffries's request for a continuance should be denied. We first note that although information in DTTI's possession could shed additional light on the matter at issue, Ms. Jeffries, as the other half of the alleged employer-employee relationship, should be able to produce at least some evidence of the alleged employment relationship. Thus, we conclude that the information sought is not solely within DTTI's possession, and as a result, we decline to continue the motion on this ground. Second, we note the speculative and conjectural nature of Ms. Jeffries assertion regarding the identity of her employer. From her affidavit: "I do not believe [that DTTI is not my employer] since my former employer gave me a letter regarding my employment . . . on letterhead bearing the name of [DTTI], and business cards issued by my former employer to me and other employees bore the name [DTTI] on them." Of course, Ms. Jeffries's subjective opinion as to the identity of her employer is of little consequence; and when the subjective opinion of a plaintiff regarding a critical element of her case is the most persuasive proof she can offer, a Rule 56(f) continuance cannot be ...


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