NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-3458 ____________

ANNA D. ARIAS, Appellant

v.

RODNEY EARL BRENNEMAN, M.D.; LANCASTER ORTHOPEDIC ASSOCIATES, LTD ____________

On Appeal from the United States District Court For the Eastern District of Pennsylvania (District Court No. 5-21-cv-01818) District Judge: Honorable John M. Gallagher ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 5, 2023 ____________

Before: SHWARTZ, CHUNG, and McKEE, Circuit Judges

(Filed: December 14, 2023) ____________

OPINION* ____________

CHUNG, Circuit Judge.

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. Anna Arias brought this medical-malpractice suit against the doctor who

performed her knee surgery and the hospital where he performed it. Defendants moved

for summary judgment, and the District Court granted their motion. Because the District

Court properly granted summary judgment, we will affirm.

I. BACKGROUND1

This case arises from a knee-replacement surgery that Dr. Rodney Brenneman,

M.D., performed on Arias at Lancaster Orthopedic Associates, Ltd. (“Lancaster”). Two

years after Arias’s surgery, she sued Dr. Brenneman and Lancaster in the United States

District Court for the Eastern District of Pennsylvania. She brought claims under

Pennsylvania state law, claiming negligence and battery against Dr. Brenneman, and

vicarious liability against Lancaster.

Arias did little work to develop her claims after that and, in failing to do so, Arias

repeatedly ignored the District Court’s orders. Four months after she filed her

Complaint, the District Court asked Arias to show cause why the matter should not be

dismissed for lack of prosecution following Arias’s failure to request an entry of default,

as instructed by the Court, due to Defendants’ failure to timely respond to her Complaint.

Five months later, the District Court instructed her to prosecute her claims more urgently.

Four months after that, when the District Court asked for a status update, Defendants told

the Court that Arias had not produced the discovery they requested. Another month later,

1 Because we write for the parties, we recite only facts pertinent to our decision.

2 after the District Court again directed Arias to show cause why it should not dismiss her

claims for failure to prosecute, Arias’s counsel told the Court that he “was in error” for

not updating the Court about discovery delays, and asked the Court for more time. Dist.

Ct. Dkt. 27, at 1, 3. The District Court allowed the matter to proceed and issued an

amended scheduling order setting discovery deadlines, including dates for submitting

expert reports and completing all other fact discovery. It does not appear that Arias did

anything to meet the District Court’s deadlines.

After the close of discovery, Defendants moved for summary judgment, or in the

alternative, to dismiss Arias’s claims for failure to prosecute. The District Court granted

Defendants’ motion for summary judgment based on Arias’s failure to produce expert

testimony or other evidence. It explained that Arias had not submitted an expert report,

and that it was “unclear whether [she] ha[d] conducted any discovery that would be

required to prosecute [her] action.” Arias v. Brenneman, No. 5:21-CV-01818-JMG,

, at *2 (E.D. Pa. Nov. 21, 2022). And it said that “[u]p until this point,

[Arias] has produced no evidence to the court that would establish her” claims.

Because the District Court granted Defendants’ motion for summary judgment, it did not

address their alternative motion to dismiss for failure to prosecute.

The District Court also noted that to support her summary judgment opposition,

Arias had submitted two affidavits—one from her counsel, and another from his

paralegal—stating, in essence, that Arias was awaiting responses to various subpoenas

and that she would “file a motion to enforce the subpoenas.” App. 124. The District

3 Court interpreted the “affidavits as a motion to extend discovery.” Arias,

, at *3. The Court denied the motion, explaining that (1) the affidavits showed

Arias did not subpoena the hospitals for records until almost a year after she filed her

Complaint; (2) although Arias’s counsel said he would move to enforce the subpoenas, he

had not done so; and (3) the discovery phase had been closed for over two months.

Arias timely appealed.

II. DISCUSSION2

Summary judgment is appropriate when the movant “shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). If the nonmoving party has the burden of proof but has

offered no evidence, then the moving party makes its required showing simply by

“pointing out to the district court … that there is an absence of evidence to support the

nonmoving party’s case.” Celotex Corp. v. Catrett,

(1986).

Identifying the nonmoving party’s absence of evidence is enough; the moving party need

not also affirmatively “produce evidence showing the absence of a genuine issue of

material fact.”

2 The District Court had jurisdiction under

. We have jurisdiction to review the District Court’s order granting summary judgment under

. We review the District Court’s summary judgment decision under a plenary standard. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist.,

(3d Cir. 2017).

4 Defendants made the required showing here. They pointed out that Arias offered

no evidence to support her claims. In particular, they showed that Arias did not offer any

expert testimony, as she must do to establish a medical-malpractice claim under

Pennsylvania law. See Toogood v. Rogal,

(Pa. 2003) (“Because the

negligence of a physician encompasses matters not within the ordinary knowledge and

experience of laypersons a medical malpractice plaintiff must present expert testimony to

establish the applicable standard of care, the deviation from that standard, causation and

the extent of the injury.”). As a result, Defendants have made their required showing for

summary judgment.

On appeal, Arias does not argue that she has offered any evidence to support her

claims. Rather, she argues that Defendants must produce evidence countering her

allegations. But as Celotex teaches, Defendants do not need to offer any evidence of

their own where Arias has offered none.

Arias also argues that the District Court should have given her more time for

discovery under Rule 56(d). We review the District Court’s decision denying Arias’s

Rule 56(d) decision for abuse of discretion, see Murphy v. Millennium Radio Grp. LLC,

, 310 (3d Cir. 2011), and we see no abuse of discretion here. Rule 56(d)

does not direct the court to extend discovery whenever the nonmoving party asks it to;

rather, it provides only that the court “may” do so, if the nonmovant shows “specified

reasons” that prevent it from presenting “facts essential to justify its opposition.” Fed. R.

Civ. P. 56(d). The District Court’s reasons for declining to extend discovery were sound:

5 Arias waited nearly a year to subpoena records she sought, made little effort to follow up

on those subpoenas, and let the discovery period close without notifying the Court of her

purported difficulties. Aside from those specific reasons, the District Court had also seen

Arias create delays and ignore its discovery-related instructions for over nineteen months

of litigation. In light of these circumstances, the Court did not abuse its discretion in

denying her motion after concluding that Arias showed no valid reason to prolong the

litigation further.

III. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s order.

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