Douglass v. Mesa, City of et al

Filing 42

ORDER DENYING Plaintiffs Request, (Doc. 36). Signed by Judge Susan M Brnovich on 1/28/2020. (TCA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Steele Douglass,

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Plaintiff,

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ORDER

v.

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No. CV-17-04686-PHX-SMB

City of Mesa, et al.,

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Defendants.

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Pending before the Court is Plaintiff David Steele Douglass’ Declaration Regarding

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Deferment of Consideration of Defendants’ Motion for Summary Judgment and Allowing

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Time to Obtain Affidavits or Declarations or to Take Discovery. (Doc. 36, “Req.”)

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Defendants1 oppose the request, (Doc. 39, “Opp.”), and Plaintiff replied, (Doc. 41,

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“Repl.”). Plaintiff requests oral argument, but the Court elects to resolve the request

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without it. LRCiv 7.2(f). Plaintiff appears to request the Court defer considering

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Defendants’ summary judgment motion under Rule 56(d)(2).2 Having considered the

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pleadings and relevant law, the Court denies Plaintiff’s request as explained below.

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I.

LEGAL STANDARD

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Federal Rule of Civil Procedure 56(d) provides that “[i]f a nonmovant shows by

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affidavit or declaration that, for specified reasons, it cannot present facts essential to justify

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its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to

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Defendants include the City of Mesa, Clyde Spillers, Steven Hether, Jose Rodriguez,
Brett Metcalf, and Thomas McKnight.
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Plaintiff moves under Rule 56(d), but identifies no specific subsection.

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obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate

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order.” Fed. R. Civ. P. 56(d).3 Rule 56(d) creates “a device for litigants to avoid summary

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judgment when they have not had sufficient time to develop affirmative evidence.” United

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States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). “The burden is on

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the party seeking additional discovery to proffer sufficient facts to show that the evidence

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sought exists and that it would prevent summary judgment.” Okabayashi v. Travelers

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Home & Marine Ins. Co., No. CV-17-03612-PHX-DJH, 2019 WL 1059982, at *3 (D. Ariz.

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Mar. 6, 2019) (citing Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir.

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2001)).

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To prevail under Rule 56(d), the moving party must show: “(1) that they have set

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forth in affidavit form the specific facts that they hope to elicit from further discovery, (2)

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that the facts sought exist, and (3) that these sought-after facts are ‘essential’ to resist the

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summary judgment motion.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg.

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Corp., 525 F.3d 822, 827 (9th Cir. 2008); see California v. Campbell, 138 F.3d 772, 779

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(9th Cir. 1998) (noting same three elements). Thus, a party requesting relief under Rule

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56(d) must “make clear what information is sought and how it would preclude summary

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judgment.” Nicholas v. Wallenstein, 266 F.3d 1083, 1088-89 (9th Cir. 2001). “Failure to

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comply with these requirements ‘is a proper ground for denying discovery and proceeding

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to summary judgment.’” Family Home & Fin. Ctr., 525 F.3d at 827 (quoting Campbell,

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138 F.3d at 779).

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II.

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Plaintiff requests the Court defer considering Defendants’ summary judgment

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motion so that he may “obtain affidavits or declarations or take discovery.” (Req. at 1.) In

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support, Plaintiff declares he cannot oppose Defendants’ summary judgment motion

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exhibits because they “set[] forth facts that are not fully disclosed in the police reports or

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other papers that [they] provided in discovery.” (Id.) More specifically, Plaintiff claims

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DISCUSSION

According to the Ninth Circuit in Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 n. 8 (9th
Cir. 2011), cases interpreting Rule 56(f) apply to Rule 56(d). See Slama v. City of Madera,
No. 1:08-cv-810 AWI GSA, 2012 WL 1067198, at *2 n.4 (E.D. Cal. Mar. 28, 2012)
(acknowledging Rule 56(f)’s “relocation” to Rule 56(d)).
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“[t]he allegations in the [summary judgment exhibit] affidavits . . . will need to be

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investigated through depositions or other discovery to respond adequately to the motion

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for summary judgment.” (Id. at 2.) Plaintiff further claims he “[o]nly recently . . . had the

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opportunity to complete review of these disclosures.” (Id. at 3.) He also claims his witness,

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Lance White, “has become an uncooperative witness.” (Id. at 4.) For these main reasons,

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Plaintiff requests the Court defer consideration on the summary judgment motion.

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In response, Defendants argue Plaintiff’s request should be denied because he does

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not satisfy Rule 56(d)’s substantive or procedural requirements. (Opp. at 2.) They argue

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the substantive requirements are unsatisfied because Plaintiff fails to “identify any facts

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that he expects to obtain with additional discovery, and that, even if obtained, would

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preclude summary judgment.” (Id.) Defendants further argue the procedural requirements

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are not satisfied because “[d]iscovery has closed, Plaintiff had adequate time to conduct

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discovery, Plaintiff failed to take any depositions or to obtain any affidavits, and Plaintiff

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provides no basis for modifying the existing Scheduling Order.” (Id.) The Court finds

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Defendants’ arguments persuasive.

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Plaintiff’s request falls short of meeting Rule 56(d)’s threshold requirements. See

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Family Home & Fin. Ctr., 525 F.3d at 827. Plaintiff identifies no specific facts that he

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hopes to obtain through additional discovery, let alone how such facts would be essential

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to oppose Defendants’ summary judgment motion. Id. Rather, he appears to simply be

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requesting more time to investigate discovery already provided to him. (See Req. at 2 (“The

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allegations . . . will need to be investigated.”)). This is inadequate for Rule 56(d) relief. See

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Mackey v. Pioneer Nat’l Bank, 867 F.2d 520, 524 (9th Cir. 1989) (“A movant cannot

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complain if [he] fails diligently to pursue discovery before summary judgment.”). Granting

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Rule 56 relief under these circumstances, where Plaintiff identifies no specific information

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that would be obtained or how such information could be used to oppose summary

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judgment would cause unnecessary delay for both parties. See Nicholas, 266 F.3d at 1088-

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89. In other words, and contrary to Rule 56(d)’s requirements, Plaintiff does not “make

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clear what information is sought and how it would preclude summary judgment.” Cf. id.

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(quoting Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998)). As a consequence, the Court

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finds Plaintiff’s requested relief unwarranted. Family Home & Fin. Ctr., 525 F.3d at 827.

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Accordingly,

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IT IS ORDERED DENYING Plaintiff’s Request, (Doc. 36).

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Dated this 28th day of January, 2020.

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