Coston v. Clark et al

Filing 47

ORDER (1) VACATING Order to Show Cause; and (2) GRANTING Defendant's Rule 56(d) Request signed by Magistrate Judge Michael J. Seng on 5/24/2017. Defendant is hereby granted an additional sixty (60) days from the date of this Order in which to conduct discovery. (Jessen, A)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
DANNY M. COSTON,

CASE NO. 1:14-cv-00148-AWI-MJS

11
Plaintiff,

12
13
14
15
16

v.

ORDER
(1) VACATING ORDER TO SHOW
CAUSE; AND

J.K. YU, et al.,
Defendants.

(2) GRANTING DEFENDANT’S RULE
56(d) REQUEST
(ECF NOS. 44, 46)

17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. This matter proceeds against
Defendant Dr. J.K. Yu on an Eighth Amendment medical indifference claim. On February
27, 2017, Plaintiff filed a motion for summary judgment. Now pending is Defendant’s
second request to reopen discovery pursuant to Federal Rule of Civil Procedure 56(d).
“Rule 56(d) ‘provides a device for litigants to avoid summary judgment when they
have not had sufficient time to develop affirmative evidence.’” Atigeo LLC v. Offshore
Ltd., 2014 WL 1494062, at *3 (W.D. Wash. Apr. 16, 2014) (quoting United States v.
Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002)). Federal Rule of Civil
Procedure 56(d) provides, “[i]f a nonmovant shows by affidavit or declaration that, for

1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

specified reasons, it cannot present facts essential to justify its opposition, the court
may” defer considering the motion, deny the motion, allow time to obtain affidavits or
declarations to take discovery, or “issue any other appropriate order.” Fed. R. Civ. P.
56(d). Rule 56(d) requires the nonmovant to show “(1) it has set forth in affidavit form
specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3)
the sought-after facts are essential to oppose summary judgment.” Family Home & Fin.
Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008) (holding
that the district court did not abuse its discretion in denying a continuance where the
facts sought through further discovery were only “generically relevant” and the
nonmoving party failed to show how the evidence was “essential” to oppose summary
judgment). The party requesting a continuance must explain how the specific facts that it
seeks would preclude summary judgment. Tatum v. City & Cty. of S.F., 441 F.3d 1090,
1100-01 (9th Cir. 2006) (citing California v. Campbell, 138 F.3d 772, 779 (9th Cir.
1998)).1 The Ninth Circuit's general rule is that “[a] continuance of a motion for summary
judgment for purposes of discovery should be granted almost as a matter of course
unless the non-moving party has not diligently pursued discovery of the evidence.”
Atigeo, 2014 WL 1494062, at *3.

18
19
20
21

Defendant did not conduct discovery in this case during the eight-month discovery
period which commenced on April 19, 2016 and concluded on December 19, 2016.
(ECF No. 23.) Defendant’s first two requests to reopen discovery were denied because
he did not demonstrate diligence during that lengthy period. (ECF Nos. 35, 43.)

22
23
24

In the most recent motion, Defendant for the first time proffers a sufficient
explanation for his failure to conduct discovery. Defense counsel has submitted
numerous exhibits documenting the untimely passing of a close colleague on April 15,

25
26
27
28

1

On December 1, 2010, Federal Rule of Civil Procedure 56(f) was renumbered and is now Federal Rule of Civil
Procedure 56(d). The advisory committee's notes to Rule 56 regarding the 2010 amendments state that
“[s]ubdivision (d) carries forward without substantial change the provisions of former subdivision (f).” Fed. R. Civ. P.
56 advisory committee's notes. Thus, the cited authorities that refer to Rule 56(f) provide guidance on matters
related to the current Rule 56(d). Id.

2

1
2
3
4
5
6
7
8
9
10
11
12
13

2016, four days before the Court’s Discovery and Scheduling Order issued. Further it
appears that defense counsel did in fact draft written discovery to propound on Plaintiff
and forwarded it to his legal secretary on April 22, 2016, for service. This discovery was
never served on Plaintiff. Staff failed to mail it. The filed declaration of the staff member
acknowledges the failure and attributes it to stress following the colleague’s death. For
these reasons, the undersigned now finds that Defendant has in fact shown diligence.
Defendant also properly identified the discovery that he seeks to use in opposing
Plaintiff’s pending motion, namely, Plaintiff’s medical records and responses to the
aforementioned written discovery. Defendant’s request will therefore be granted.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant’s Rule 56(d) request (ECF No. 46) is GRANTED;
2. The May 5, 2017, Order to Show Cause (ECF No. 44) is VACATED;
3. Defendant is hereby granted an additional sixty (60) days from the date of this

14

Order in which to conduct discovery. Plaintiff’s responses to the written

15

discovery requests shall be due within thirty days from the date of their

16
17

service; and
4. Defendant shall then have fourteen days following the close of the discovery

18

period in which to respond to Plaintiff’s motion for summary judgment.

19

Plaintiff’s reply brief shall be due ten days thereafter.

20
21

IT IS SO ORDERED.

22
23

Dated:

May 24, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
24
25
26
27
28
3