filed as amended september 15 1989.: September 11, 1989.
On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 87-01619.
Sloviter and Greenberg, Circuit Judges, and Clarkson S. Fisher, District Judge.*fn*
Before us is an appeal by plaintiffs, who were subcontractors on a state construction project, from summary judgment entered against them in their suit against a state legislator, the counsel to a state legislative committee, and the investigator for the committee. Plaintiffs' complaint asserted claims under 42 U.S.C. § 1983 (1982) and pendent state law claims of defamation and invasion of privacy resulting from statements made by defendants concerning alleged fraud on the construction project. The district court held that plaintiffs' claims were barred on the basis of the statute of limitations and defendants' legislative and testimonial immunity. On appeal plaintiffs contend that the district court erred in granting summary judgment while they had discovery requests outstanding and that the district court erred in ruling that defendants' statements at issue were protected by legislative and testimonial immunity.
Plaintiffs Carl Lunderstadt and John Scott were principals of North American Industries, Inc.; plaintiff Bradford Bernardo was a principal in Providence Granite Co., Inc. Pursuant to a contract entered into in 1983, these companies supplied the granite for an addition to the Pennsylvania State Capitol Building in Harrisburg and were among the subcontractors chosen in 1984 to fabricate the granite into finished pieces for use in the project.
In 1985, after an investigation by the Commonwealth's Auditor General into the role played by plaintiffs' companies as middlemen in the Commonwealth's purchases of the raw granite, the Pennsylvania House of Representatives recommissioned a standing Select Committee*fn1 and directed it to investigate "other matters relating to compliance with State Law in the performance of State construction projects." Pa.H.R.Res. 17, Session of 1985 (April 9, 1985) reprinted in History of House Bills and Resolutions, Sessions of 1985 and 1986 at H-9. The Select Committee was empowered to hire staff, conduct hearings and issue subpoenas during the course of its investigation. Id. Defendants Nicholas C. Colafella, a state representative, served as the chairman of the Select Committee, Reizdan B. Moore was counsel to the Committee, and Stanley Gochenour, Jr. served as the Committee's investigator.
Beginning in January 1986, the Select Committee conducted several public hearings concerning the allegations of impropriety in the procurement of granite for the Capitol Addition Project. Scott and Lunderstadt were subpoenaed but invoked their Fifth Amendment rights to refuse to testify. The Committee's work concluded on November 25, 1986 with the presentation of a report.
Plaintiffs, contending that over the course of the life of the Committee defendants were responsible for false, misleading and/or deceptive allegations about them, filed suit on August 4, 1987. Counts I and II alleged that defendants' statements, made under color of state law, deprived them of their liberty and property respectively without due process. Count III included a claim for defamation and Count IV for invasion of privacy. Plaintiffs asked for compensatory and punitive damages.
Defendants filed a motion under Rule 12(e) for a more definite statement on September 30, 1987 which the district court granted on March 1, 1988. Defendants had argued that the allegations of the complaint were insufficiently specific to allow them to determine the circumstances under which the communications took place and to interpose potential affirmative defenses. Plaintiffs filed their amended complaint on March 16, 1988 and defendants answered on April 4, 1988. Defendants' answer asserted numerous affirmative defenses including failure to state a claim, privilege under the Speech and Debate clause of the Pennsylvania Constitution, common law privileges and immunities, and the statute of limitations.
The parties engaged in limited discovery, which consisted primarily of the plaintiffs' answer to some of defendants' interrogatories. The parties were required to complete discovery by March 17, 1988, and agreed in February to focus their discovery on the facts relating to the immunity issue. App. at 1273. The record does not disclose any discovery completed on plaintiffs' initiative during that period.
Defendants filed their motion for summary judgment on April 25, 1988 raising defenses of the statute of limitations, speech and debate immunity and testimonial immunity. Plaintiffs thereafter moved the district court "pursuant to Rule 56(f) . . . to refuse defendants' application for summary judgment or, in the alternative, to order a continuance before ruling on defendants' Motion for Summary Judgment so that plaintiffs may conduct depositions and other discovery in order to present a full record on defendants' summary judgment motion." App. at 1138. No affidavit was filed in support of the motion. On July 7, plaintiffs noticed the deposition of three reporters, the governor's press secretary, and a court reporter. On July 12, 1988, defendants moved for a protective order with respect to these depositions. The district court granted that motion on July 20, 1988 on the ground that the "threshold" immunity question should be resolved first, and denied plaintiffs' motion for continuance of the summary judgment motion because "[plaintiffs] have not submitted the specific affidavits required by Fed.R.Civ.P. 56(f)." App. at 1180.
On December 22, 1988, the district court granted defendants' motion for summary judgment. The court, applying Pennsylvania's one-year statute of limitations applicable to libel, slander or invasion of privacy, held that "[the] acts specifically alleged to have occurred on January 7, January 13, and in February [of 1986], as well as any general allegations of acts occurring before August 4, 1986 fail to survive the statute of limitations." App. at 1188-89. The court thus granted the defendants' motion for summary judgment as to those allegations. The court specifically stated that the allegations "[remaining] are the allegations of October 10, October 16 and November 25, 1986, as well as plaintiffs' general 'catch-all' allegations for that time period." Id. at 1189. The court then examined the three allegations which remained and ruled that two were protected by the Speech or Debate Clause of the Pennsylvania Constitution, and the remaining one was protected by testimonial immunity. Finally, the court denied plaintiffs' motion under Rule 56(f), ruling that more discovery was unwarranted, that plaintiffs failed to make timely discovery within the period allotted to them for discovery, and that defendants were entitled to summary judgment "as to the general incidents alleged by plaintiffs." App. at 1195.
Cognizant that we must always consider not only the subject matter jurisdiction of this court but the subject matter jurisdiction of the district court as well, see Trent Realty Associates v. First Fed. Sav. and Loan Ass'n, 657 F.2d 29, 36 (3d Cir. 1981), we asked the parties to address the issue of federal subject matter jurisdiction over the first two counts. We called the parties' attention to cases holding that injury to reputation, even when financial harm results therefrom, is an insufficient basis on which to predicate a claim under the due process clause, and cited specifically Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), and Sturm v. Clark, 835 F.2d 1009 (3d Cir. 1987). The parties responded by letter to the court's inquiry, in agreement that there were sufficient allegations to invoke federal jurisdiction. After consideration, we agree.
We are guided by the general principle enunciated in Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974), that a federal court may dismiss for lack of jurisdiction only if the claims are "'insubstantial on their face.'" Id. at 542 n. 10 (quoting Engineers v. Chicago, R.I. & P.R. Co., 382 U.S. 423, 428, 15 L. Ed. 2d 501, 86 S. Ct. 594 (1966)). As we explained in Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987), "dismissal for lack of jurisdiction is not appropriate merely because the legal theory alleged is probably false." The threshold to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(1) is thus lower than that required to withstand a Rule 12(b)(6) motion. On review of the allegations of the complaint alleging violation of section 1983, we cannot say that they are so "wholly insubstantial and frivolous", Bell v. Hood, 327 U.S. 678, 682-83, 90 L. Ed. 939, 66 S. Ct. 773 (1946), that the district court should have sua sponte dismissed under Fed.R.Civ.P. 12(b)(1). We thus turn to a consideration of the issues raised on this appeal.
We consider first plaintiffs' argument that the district court's grant of summary judgment was error because plaintiffs had outstanding discovery requests and had requested the court, pursuant to Rule 56(f), to stay its disposition of the motion until discovery was completed. In particular, plaintiffs argue that the discovery which they requested could lead to information showing that at least some of defendants' statements were not privileged because they were made at press conferences rather than committee sessions or were otherwise disseminated beyond the protected sphere. It is an argument which, at least on its face, causes us grave concern. In Sames v. Gable, 732 F.2d 49, 52 (3d Cir. 1984), this court reversed the district court's grant of summary judgment because plaintiffs' discovery requests were still outstanding. We stated that, "[this] court has criticized the practice of granting summary judgment motions at a time when pertinent discovery requests remain unanswered by the moving party." Id.
In its order of July 20, the district court refused to grant plaintiffs a continuance pending discovery because of plaintiffs' failure to submit affidavits, as required by Rule 56(f), identifying their inability to effectively oppose the summary judgment motion. Rule 56(f) specifically provides that the court may order a continuance of a motion for summary judgment "[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." Fed.R.Civ.P. 56(f) (emphasis added). We have on numerous occasions suggested that a failure to submit affidavits with a Rule 56(f) motion is enough to preclude an argument of the kind made by plaintiffs. See Dowling v. City of Philadelphia, 855 F.2d 136, 139-40 (3d Cir. 1988); Hancock Indus. v. Schaeffer, 811 F.2d 225, 229-30 (3d Cir. 1987); Falcone v. Columbia Pictures Indus., 805 F.2d 115, 117 n. 2 (3d Cir. 1986); Mid-South Grizzlies v. National Football League, 720 F.2d 772, 780 & n. 4 (3d Cir. 1983), cert. denied, 467 U.S. 1215, 81 L. Ed. 2d 364, 104 S. Ct. 2657 (1984).
In this case, however, the district court judge who granted summary judgment (who succeeded to the case after the stay was denied) did not rely on the technical absence of an affidavit in holding that he would not withhold summary judgment because of the outstanding discovery. Instead, he relied exclusively on plaintiffs' delay.*fn2 Although we also will not base our opinion on the Rule 56(f) issue on the failure to file an affidavit, we call to the attention of the bar once again the requirement of the Rule. Compliance with that provision by a party opposing ...