Johnston v. The City of Red Bluff, et al

Filing 62

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 6/22/11 RECOMMENDING that re 43 Amended Motion for Summary Judgment and 55 Motion for Summary Judgment be denied. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSTON,

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Plaintiff,

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No. CIV S-09-1353-FCD-CMK

vs.

FINDINGS AND RECOMMENDATIONS

CITY OF RED BLUFF, et al.,

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Defendants.

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Plaintiff brings this civil action under the Age Discrimination in Employment Act

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(“ADEA”), 29 U.S.C. §§ 621-634, against the City of Red Bluff and various of its employees.

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Pending before the court are plaintiff’s motions for summary judgment (Docs. 43 and 55).

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Oppositions and replies thereto having been filed, the matter was submitted on the briefs and

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record.

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In their oppositions, defendants argue, among other things, that they have not had

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adequate time to conduct discovery in order to adequately and completely oppose the motions.

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The court agrees. Since the inception of this case in May 2009, the parties have litigated the

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sufficiency of plaintiff’s claims. A final order on defendants’ motion to dismiss was only issued

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in March 2011 (see order at Doc. 52). Thereafter, in April 2008 plaintiff filed a second amended
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complaint as permitted by the March 2011 order. This case became at issue with the filing of

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defendants’ answer to the second amended complaint on April 29, 2011.1 No scheduling order

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has been issued.

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Federal Rule of Civil Procedure 56(d)(1) provides that the court may deny a

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motion for summary judgment where the opposing party shows by affidavit that, for specified

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reasons, facts necessary to justify oppositions to plaintiff’s motions cannot be presented. Here,

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defendants’ counsel has submitted a declaration making this showing. In particular, counsel

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accurately recites the relevant procedural history and states that, because the litigation thus far

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has centered on the sufficiency of plaintiff’s claims, defendants have not conducted any

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discovery. In essence, plaintiff’s motions for summary judgment are premature and should be

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denied without prejudice to renewing the arguments after the conclusion of discovery.

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Based on the foregoing, the undersigned recommends that plaintiff’s motions for
summary judgment (Docs. 43 and 55) be denied as premature.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 22,, 2011
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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Defendants’ motion to amend the answer is set for hearing before the undersigned
on July 7, 2011.
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