Broussard v. Higgins

Filing 22

ORDER signed by Magistrate Judge Craig M. Kellison on 1/7/2013 GRANTING defendant's 19 request for a Rule 56(d) order; plaintiff's 18 , 20 motion for summary judgment is prematurely filed, and is therefore CONTINUED until the end of the discovery period; the Clerk is to administratively terminate the motion; and defendant's opposition to plaintiff's motion for summary judgment shall be due 30 days after the close of discovery. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LOUIS J. BROUSSARD,

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No. 2:12-CV-0984-CMK-P

Plaintiff,
vs.

ORDER

K. HIGGINS,
Defendant.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court is plaintiff’s motion for summary judgement (Doc. 18,

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20) and defendant’s opposition thereto. Defendant’s opposition is actually a request for Rule

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56(d) order to deny or delay the consideration of the motion for summary judgment.

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The purpose of Rule 56(d) is to provide a device for litigants to avoid summary

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judgment where they have not had sufficient time to develop affirmative defenses. See

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Burlington Northern Santa Fe R. Co. v. The Assiniboine and Sioux Tribes of the Fort Peck

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Reservation, 323 F.3d 767, 773 (9th Cir. 2003). Thus, where a motion for summary judgment is

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filed very early in the litigation before a party has had any realistic opportunity to pursue

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discovery, Rule 56(d) motion should be granted freely. See id. Where, however, the party
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seeking a continuance has not diligently pursued discovery, the district court does not abuse its

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discretion in denying a Rule 56(d) motion. See id. at 773-74 (citing Wichita Falls Office Assoc.

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v. Banc One Corp., 978 F.2d 915, 919 n.4 (5th Cir. 1992)). A Rule 56(f) motion must be brought

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before the summary judgment hearing. See U.S. v. Kitsap Physicians Service, 314 F.3d 995,

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1000 (9th Cir. 2002). The facts supporting the request for continuance must be set forth in an

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accompanying affidavit. See id. Failure to comply with either of these requirements is proper

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basis for denying Rule 56(d) motion. See id.

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A Rule 56(d) motion should be granted where the party seeking the continuance
puts forth a good faith showing by affidavit that the continuance is needed to obtain facts

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essential to preclude summary judgment. See State of Cal., on Behalf of Cal. Dept. of Toxic

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Substances Control v. Campbell, 138 F.3d 772, 775 (9th Cir. 1998). The party seeking to

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conduct additional discovery under Rule 56(f) has the burden of demonstrating that the evidence

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sought exists. See Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995). Thus, to obtain relied

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under Rule 56(d), the party seeking the continuance must show: (1) that they have set forth in

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

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sought exist; and (3) that these sought-after facts are essential to resist the summary judgment

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motion. See Campbell, 138 F.3d at 775.

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Here, an answer to plaintiff’s complaint was filed on December 3, 2012. After

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which, the court issued a discovery and scheduling order on December 6, 2012. Less than a

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week later, plaintiff filed his motion for summary judgment. As defendant has argued, the parties

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have not had time to conduct any discovery in this action. Pursuant to the scheduling order

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issued, discovery is set to continue through April 26, 2013. Plaintiff’s motion for summary

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judgment is therefore premature. Defendant’s request to continue the motion for summary

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judgment until the end of the discovery period will be granted. Defendant’s opposition to

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plaintiff’s motion for summary judgment will be due 30 days after the close of discovery.

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Accordingly, IT IS HEREBY ORDERED that:

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Defendant’s request for a Rule 56(d) order is granted;

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2.

Plaintiff’s motion for summary judgment (Doc. 18, 20) is prematurely

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filed, and is therefore continued until the end of the discovery period;

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3.

The Clerk of the Court is directed to administratively terminate the

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Defendant’s opposition to plaintiff’s motion for summary judgment shall

motion; and

be due 30 days after the close of discovery.

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DATED: January 7, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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