A party opposing summary judgment who wishes to invoke Fed. R. Civ. P. 56(d) must act diligently and proffer to the trial court an affidavit or other authoritative submission that (i) explains his or her current inability to adduce the facts essential to filing an opposition, (ii) provides a plausible basis for believing that the sought-after facts can be assembled within a reasonable time, and (iii) indicates how those facts would influence the outcome of the pending summary judgment motion.
The owner hid a gun and ammunition at his hunting camp. Approximately 13 years before the murder, the owner rescinded his grandson's permission to visit the camp. Prior to the murders, the owner found that the cabin had been broken into, but he did not call the authorities. The plaintiff filed a complaint against the owner for negligent storage of the weapon and failure to timely report the theft of his gun. The district court dismissed the complaint on summary judgment
Was the owner of the gun liable for negligent storage and was his failure to report the theft of his gun the proximate cause of a shooting victim's death?
On appeal, the court upheld the district court's ruling that the owner was not liable for the criminal acts of his grandson. In particular, summary judgment was proper even though a motion to quash a subpoena was pending because the executrix did not invoke Fed. R. Civ. P. 56(d) or request oral argument on the motion. In any event, the executrix did not show that the owner could have prevented the murder by seasonably reporting the handgun theft since there were no disputed facts that the owner did not know about the theft until after the murder. Further, the executrix did not show that the owner's failure to properly secure the gun created an unreasonable risk of criminal misconduct. There were no disputed facts that the grandson was not welcome at the camp for 13 years before the murder, and there was no evidence that the owner knew or had reason to know that the grandson might have been in the camp's vicinity.