Melech v. Life Insurance Company of North America et al

Filing 140

ORDER denying 134 Motion for Relief under FRCP 56(d)as set out. Signed by Judge Kristi K. DuBose on 7/23/2012. (cmj)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION DIANE G. MELECH, Plaintiff, vs. LIFE INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants. ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 10-00573-KD-M ORDER This matter is before the Court on Plaintiff’s “Motion for Relief under Fed.R.Civ.P. 56(d) and Amendment of the Court’s April 27, 2012 Discovery Order” and brief in support. (Docs. 134, 135). Plaintiff requests that: 1) Defendant Life Insurance Company of North America (“LINA”) be ordered to produce performance evaluations between October 1, 2007-October 16, 2008 for Lisa Koller, Eric Poliziani, and Marianna DiLeo, three (3) employees who were involved in the closure of Plaintiff’s claim; and 2) that the Court defer consideration of Defendant LINA’s summary judgment motion until it produces this evidence “which is critical to the Court’s consideration of whether LINA’s claims decision in this instance was improperly motivated.” (Doc. 134 at 1). Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. FED.R.CIV.P. Rule 56(d). The decision to grant or deny a Rule 56(d) motion lies within the sound discretion of the trial judge. See, e.g., Burks v. Am. Cast Iron Pipe Co., 212 F.3d 1333, 1336 (11th Cir. 2000)). The discovery issues raised in Plaintiff’s motion have already been addressed by this Court -- they have been the subject of a 1 motion to compel, which Magistrate Judge Milling denied, as well as an Appeal of that ruling, which has been affirmed. (Docs. 124, 129, 130, 131, 133). As such, rather than a meritorious Rule 56(d) request, the motion seeks reconsideration of the Court’s affirmance of the Magistrate Judge’s discovery ruling (i.e., to appeal or have reconsidered, the order denying the appeal). Accordingly, it is ORDERED that Plaintiff’s Motion (Docs. 134, 135) is DENIED. DONE and ORDERED this the 23rd day of July 2012. /s/ Kristi K. DuBose KRISTI K. DUBOSE UNITED STATES DISTRICT JUDGE 2

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