O'Shea et al v. Leader Bulso & Nolan PLC et al
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 2/1/16. (SAC )
2016 Feb-01 AM 11:07
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THOMAS O’SHEA, et al.,
LEADER, BULSO, & NOLAN, PLC, et
This matter is before the court on “Defendants’ Motion for Summary Judgment” (doc.
24) and “Plaintiffs’ Motion to Allow Time for Discovery under Rule 56(d)” (doc. 31). For the
reasons set out in this Memorandum Opinion, the court will GRANT Plaintiffs’ Motion to Allow
Time for Discovery and will DENY Defendants’ Motion for Summary Judgment as premature.
This case was reassigned on October 15, 2015. Shortly thereafter, on December 11, 2015,
Defendants moved for summary judgment. Plaintiffs, in turn, moved for additional time for
discovery under Federal Rule of Civil Procedure 56(d), arguing that they had not had an
opportunity to complete discovery and, therefore, could not fully respond to Defendants’ Motion.
The court ordered the Defendants to show cause why the court should not grant Plaintiffs’
Motion and allow the parties to complete discovery before it considered the Defendants’ Motion
for Summary Judgment.
The Defendants’ response is twofold. Defendants argue first that Plaintiffs have not
diligently pursued discovery and should not be given more time to do so, and second that,
Plaintiffs’ lack of diligence notwithstanding, the court may consider Defendants’ Motion because
it presents issues that can be decided as a matter of law, without the need for further discovery.
Under Federal Rule of Civil Procedure 56(d), “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its oppositions,
the court may . . . defer considering the motion [for summary judgment] or deny it.” Prior to
considering a motion for summary judgment, the court should allow “the party opposing a
motion for summary judgment  an adequate opportunity to complete discovery.” Jones v. City
of Columbus, Ga., 120 F.3d 248, 253 (11th Cir. 1997). The court may deny a motion for
additional discovery if the “record indicate[s] that the plaintiff had ample time and opportunity
for discovery, yet failed to diligently pursue his options.” Barfield v. Brierton, 883 F.2d 923, 932
(11th Cir. 1989).
Defendants assert that Plaintiffs’ Motion should be denied because Plaintiffs have failed
to diligently pursue discovery. Defendants represent to the court that Plaintiffs have simply
procrastinated and “sat on their hands” throughout this case. However, in looking at the timeline
of the case as a whole, the court finds that the record does not show that Plaintiffs have had
ample time to complete discovery.
Plaintiffs originally filed suit in the Superior Court of Marin County, California on
October 26, 2012. The case was then removed to the United States District Court for the
Northern District of California in February 2013, and transferred to the Northern District of
Alabama in May 2013. In October 2014, the case was severed into three separate actions. A
month later, Defendants filed Motions to Dismiss in each case. Judge Blackburn ruled on those
Motions to Dismiss in September 2015, and the cases were reassigned to this judge on October
15, 2015. The parties filed their “Report of the Parties’ Planning Meeting” on December 7, 2015,
and Defendants moved for summary judgment on December 11, 2015 - before the court could
enter a Scheduling Order.
In the time since this case began in 2012, major, potentially dispositive, motions have
been pending at nearly all times. Plaintiffs could not have completed their discovery before the
court had ruled on those motions and provided the Plaintiffs with direction about which claims
Moreover, although this suit began over three years ago, this court has not yet entered a
Scheduling Order setting deadlines for the completion of discovery and the disclosure of expert
witnesses. (See Doc. 28 (holding the Report of Parties’ Planning Meeting and the entry of a
Scheduling Order in abeyance)).
The parties have, however, proposed deadlines in their Report of the Parties’ Planning
Meeting, which was filed in December 2015. These dates provide the court with insight into the
parties’ estimations of when the essential discovery and disclosures should be completed. In this
report, the parties jointly proposed that fact discovery be completed by May 16, 2016 and that
experts be disclosed by June 15, 2016.
Despite agreeing to these proposed deadlines, Defendants now argue that they are entitled
to summary judgment because the Plaintiffs have not offered any evidence to show that the
Defendants’ legal fees were not reasonable and necessary. The court fails to see why it should
penalize the Plaintiffs for not offering evidence sufficient to rebut Defendants’ claims at this
stage in the litigation, when the Defendants themselves have represented to the court that the
parties should have approximately six months to complete factual discovery.
Defendants also argue that, Plaintiffs’ diligence aside, the court may consider the
Defendants’ Motion for Summary Judgment because no further discovery is necessary for
adjudication of the Defendants’ Motion. Defendants suggest that the court can rule on their
counterclaim, which is the only remaining claim in this action, because the counterclaim “is a
straightforward breach of contract action,” and Plaintiffs have failed to offer evidence sufficient
to create a genuine issue of material fact as to this claim.
The court disagrees. The court cannot decide this issue without allowing Plaintiffs to first
complete factual discovery, so that Plaintiffs may be able to provide the court with evidence to
rebut Defendants’ claim. As discussed above, the court will not penalize the Plaintiffs for failing
to offer sufficient evidence in opposition to the Defendants’ Motion before the discovery
deadline has arrived. Defendants’ Motion is not yet ripe for resolution.
Accordingly, the court will GRANT Plaintiffs’ Rule 56(d) Motion and will DENY
Defendants’ Motion for Summary Judgment as premature.
The court will enter a separate Order along with this Opinion.
DONE and ORDERED this 1st day of February, 2016.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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