Ikon Office Solutions, Inc. v. Rezente et al

Filing 124

ORDER signed by Judge William B. Shubb on 5/4/11, ORDERING that defendants' 105 Motion for Summary Judgment is DENIED, without prejudice to being renewed after 8/26/11. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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IKON OFFICE SOLUTIONS, INC.,

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NO. CIV. 2:10-1704 WBS EFB

Plaintiff,
ORDER

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v.
MICHAEL REZENTE and CHRISTY
FRIEND,

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Defendants.
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/

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After the court denied defendant Christy Friend’s

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motion to dismiss plaintiff’s Second Amended Complaint on April

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13, 2011 (Docket No. 103), defendants moved for summary judgment

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on April 25, 2011.

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continuance of the motion pursuant to Federal Rule of Civil

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Procedure 56(d) in order to conduct discovery.1

(Docket No. 105.)

Plaintiff requests a

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Federal Rule of Civil Procedure 56 was revised and
rearranged effective December 1, 2010. Rule 56(d) “carries
forward without substantial change the provisions of former
subdivision (f).” Fed. R. Civ. P. 56 advisory committee’s notes
on 2010 amendments.
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Federal Rule of Civil Procedure 56(d) provides that:

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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 discovery;
or (3) issue any other appropriate order.

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Fed. R. Civ. P. 56(d).

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continuance, the party requesting it “must show (1) that they

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have set forth in affidavit form the specific facts that they

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hope to elicit from further discovery, (2) that the facts sought

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

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resist the summary judgment motion.”

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F.3d 772, 779 (9th Cir. 1998).

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summary judgment motion upon a good faith showing by affidavit

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that the continuance is needed to obtain facts essential to

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preclude summary judgment.”

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For a court to grant a Rule 56(d)

California v. Campbell, 138

A court “should continue a

Id.

Plaintiff’s request, along with the declaration by

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plaintiff’s counsel Thomas T. Loder, meets this standard.

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defendants argue that plaintiff has already had the opportunity

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to conduct discovery, requests under Rule 56(d) must be liberally

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construed.

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784 F.2d 1472, 1475 (9th Cir. 1986).

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entitled to rely on the Status (Pretrial Scheduling) Order

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(Docket No. 87), which sets August 26, 2011, as the discovery

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completion date.

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While

See Visa Int’l Sys. Ass’n v. Bankcard Holders of Am.,
Here, plaintiff was

THEREFORE, in order to afford plaintiff the full

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benefit of the discovery time allowed in the scheduling order,

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IT IS HEREBY ORDERED that defendants’ motion for summary judgment

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is DENIED without prejudice to being renewed after August 26,

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2011.2

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DATED:

May 4, 2011

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Plaintiff seeks an award of fees and costs associated
with bringing this ex parte application, but provides no legal
basis for its request. Accordingly, the court will not award
fees and costs.
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