Suell et al v. United States of America
ORDER denying without prejudice the 22 Motion for Summary Judgment; denying as moot 27 Motion to Strike Hager's affidavit. Signed by Chief Judge William H. Steele on 2/3/2014. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JOE GLENN SUELL, et al.,
UNITED STATES OF AMERICA,
) CIVIL ACTION 13-0252-WS-B
This matter is before the Court on the plaintiffs’ motion for partial
summary judgment, limited to the issue of liability. (Doc. 22). The defendant
challenges the motion on its merits but also argues the motion is premature. (Doc.
If 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
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).1
This action was filed in May 2013, but summons was not issued until late
June, and the defendant timely answered in late August. (Docs. 1, 6, 8). Thanks
to the lapse in federal funding at the end of the fiscal year, the parties’ Rule 26(f)
report was not filed until November 4 and the Rule 16(b) scheduling order not
entered until November 7. (Docs. 10-15). That order established a discovery
deadline of April 4, 2014, a deadline for disclosing defense expert testimony of
Current Rule 56(d) “carries forward without substantial change the provisions of
former subdivision (f).” Fed. R. Civ. P. 56 advisory committee notes 2010 amendments.
The Court therefore considers precedents decided under former Rule 56(f).
March 4, 2014, and a deadline for initial disclosures of November 29, 2013. (Doc.
15 at 1-2). The plaintiffs mailed their initial disclosures to counsel on November
27. (Doc. 20). They filed the instant motion for partial summary judgment one
week later, on December 4. (Doc. 22).
The defendant has submitted the affidavit of its counsel, which points out
that the defendant received the plaintiffs’ initial disclosures on December 3; that
those disclosures included the affidavit of Edward Lee Hager, an employee of the
defendant and the individual on whose conduct the defendant’s liability is said to
rest; that Hager in his affidavit states the motor vehicle accident made the subject
of this lawsuit was his fault and that the circumstances were such that the
defendant is liable for his conduct; that defense counsel was unaware, prior to
December 3, that Hager had executed such an affidavit; that the plaintiffs’ motion
for summary judgment was filed the following day, relying exclusively on Hager’s
affidavit; that Hager is represented by counsel and cannot be contacted directly by
defense counsel; that, in order to oppose the plaintiffs’ motion, the defendant
needs to engage in the discovery contemplated by the Rule 16(b) scheduling order,
including discovery of Hager, its own investigation of the accident, witnesses
(including towing company personnel, emergency responders and other medical
providers) and potential defenses (including contributory negligence),2 and the
retention of expert witnesses; that none of this discovery has taken place; and that
the defendant relied on the deadlines established in the Rule 16(b) scheduling
order in formulating and executing its discovery plan. (Doc. 26).
“The law in this circuit is clear: the party opposing a motion for summary
judgment should be permitted an adequate opportunity to complete discovery prior
to consideration of the motion.” Jones v. City of Columbus, 120 F.3d 248, 253
(11th Cir. 1997). The Eleventh Circuit in Jones ruled that the district court abused
As the defendant notes, the responding officer’s report indicates a suspicion of
alcohol and/or drug use by the plaintiff as a contributing factor. (Doc. 28, Exhibit A at
its discretion by granting summary judgment before the plaintiff was allowed to
take the depositions, within the discovery period, of the witnesses whose affidavits
formed the basis of the motion for summary judgment. Id. at 250-51, 253. The
Court would find itself in the same situation were it to grant summary judgment
under the circumstances presented.
The plaintiffs fume that they served an administrative claim on the
defendant in October 2012, such that the defendants should be ready to respond to
their motion for summary judgment without engaging in formal discovery. (Doc.
29 at 1, 4). They cite no authority for the facially implausible proposition that a
non-movant’s mere knowledge of potential litigation requires it to conduct all
necessary investigation, informally, before suit is ever filed, without any legal
means of forcing the plaintiff or any other witness to divulge all potentially
relevant testimony and documents and with the penalty for failure being instant
entry of judgment against it in the eventual litigation. The Court will not, absent
such authority, accept the plaintiffs’ bald assertion.
The same lack of authority precludes the Court from indulging the
plaintiffs’ proposed presumption that, because the defendant has invoked Rule
56(d) rather than producing evidence contrary to Hager’s affidavit, the defendant
“has no defense,” such that the Court should grant their motion for summary
judgment on that basis. (Doc. 29 at 6). Since the very purpose of Rule 56(d) is to
permit litigants satisfying its requirements to avoid producing such evidence
prematurely, the plaintiffs’ argument, if accepted, would read the rule out of
The plaintiffs emphasize that Rule 56(b) allows them (absent a local rule or
court order setting different limits) to move for summary judgment “at any time
until 30 days after the close of all discovery.” (Doc. 29 at 6-7). And so it does,
but that freedom is limited by Rule 56(d).
Finally, the plaintiffs insist that Hager’s affidavit is so damning that any
effort by the government to counter it is futile and a “wast[e] [of] taxpayer
money.” (Doc. 29 at 7-8). But the plaintiffs have not shown that Hager’s affidavit
constitutes a binding, unchallengeable admission by the defendant that he was
negligent (or wanton), that the defendant is legally responsible for his conduct, and
that the plaintiff was not at all negligent.3 Short of that, Hager’s affidavit may be
problematic for the defendant but cannot be conclusively, unavoidably fatal.
“Whether to grant or deny a Rule 56(f) motion for discovery requires the
court to balance the movant’s demonstrated need for discovery against the burden
such discovery will place on the opposing party.” Harbert International, Inc. v.
James, 157 F.3d 1271, 1280 (11th Cir. 1998). The defendant’s need for discovery
is patent, and the plaintiffs have articulated no burden at all, much less a burden
sufficient to outweigh the defendant’s need.
For the reasons set forth above, the plaintiffs’ motion for summary
judgment is denied, without prejudice to their ability to seek similar relief
following the close of discovery.4
DONE and ORDERED this 3rd day of February, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
On the contrary, the plaintiffs expressly “do not contend” that Hager’s affidavit
can “create an irrebuttable presumption” that he was acting within the scope of his
employment. (Doc. 29 at 10).
The defendant’s motion to strike Hager’s affidavit, (Doc. 27), is thus denied as
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