American Home Assurance Company v. Tutor-Saliba Corporation/O&G Industries, Inc. JV. et al

Filing 36

ORDER by Judge Samuel Conti continuing hearing on 25 motion for summary judgment; extending deadlines; terminating 35 Stipulation; terminating 28 Motion for Extension of Time to Answer; denying 32 Motion for Extension of Time to File (sclc1, COURT STAFF) (Filed on 2/26/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

For the Northern District of California

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AMERICAN HOME ASSURANCE COMPANY, )
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Plaintiff,
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v.
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TUTOR-SALIBA CORPORATION/O & G )
INDUSTRIES, INC. J.V.; et al., )
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Defendants.
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Case No. 15-cv-00303-SC
SCHEDULING ORDER AND ORDER
DENYING IMPROPER ADMINISTRATIVE
MOTION

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Now before the Court is Defendants Tutor Saliba Corporation,

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O&G Industries, Inc. and Tutor Saliba Corporation/O&G Industries,

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Inc. J.V.'s (collectively "Tutor") administrative motion to dismiss

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Plaintiff's motion for summary judgment as premature.

ECF No. 32

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("Mot.").

However, the

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Court will adjust the briefing schedule, hearing date, and deadline

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to respond to Plaintiff's complaint, as described below.

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The motion is unopposed, and it is DENIED.

This case was filed on January 21, 2015, and Plaintiff

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American Home Assurance Company ("American Home") moved for summary

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judgment on February 13, before any defendant had responded to the

("Brosamer") stipulated to continue the hearing on the summary

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judgment motion and to extend time for Brosamer to respond to both

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the complaint and the summary judgment motion.

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Tutor, however, did not reach such an agreement.

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filed an improper administrative motion under Civil Local Rule 7-11

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requesting that the Court deny American Home's summary judgment

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United States District Court

complaint.

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For the Northern District of California

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motion without prejudice.

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American Home and Defendant R&L Brosamer, Inc.

American Home and
Instead, Tutor

Civil Local Rule 7-11 provides for the filing of motions to

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deal with "miscellaneous administrative matters, not otherwise

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governed by a federal statute, Federal or local rule or standing

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order of the assigned judge."

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possible way.

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"miscellaneous administrative matter."

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seeks -- denial of American Home's summary judgment motion without

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prejudice or, in the alternative, continuation of the hearing date

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and briefing schedule -- is explicitly governed by Federal Rule of

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Civil Procedure 56(d).

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Tutor's motion is improper in every

First, the denial of a dispositive motion is not a
Second, the relief Tutor

Rule 56(d) permits the Court to postpone ruling on a motion

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for summary judgment "[i]f a nonmovant shows by affidavit or

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declaration that, for specified reasons, it cannot present facts

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essential to justify its opposition."

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or deferral of the motion because "[t]he parties have limited

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information about the facts determining coverage [this is an

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insurance case] as discovery has been stayed in the underlying

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action . . . ."

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opposing a motion for summary judgment must make "(a) a timely

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application which (b) specifically identifies (c) relevant

Mot. at 3.

Indeed, Tutor seeks denial

To prevail under this Rule, a party

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information sought actually exists."

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175 & 505 Pension Tr. Fund v. Clorox Co., 353 F.3d 1125, 1129-30

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(9th Cir. 2004).

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discovery to proffer sufficient facts to show that the evidence

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sought exists, and that it would prevent summary judgment."

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v. Pac–Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001).

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United States District Court

information, (d) where there is some basis for believing that the

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For the Northern District of California

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Additionally, "[t]he district court does not abuse its discretion

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by denying further discovery if . . . the movant fails to show how

Emp'rs Teamsters Local Nos.

"The burden is on the party seeking additional

Chance

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the information sought would preclude summary judgment."

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Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d 1271, 1278

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(9th Cir. 1990) (citations omitted).

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Cal.

Thus, even were the Court to treat Tutor's motion as a Rule

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56(d) request, it would be denied.

Tutor attached a declaration to

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its motion, but that declaration merely asserts that Tutor

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contacted American Home regarding a stipulation to a new briefing

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schedule and never got an affirmative response.

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There is no discussion of the information Tutor needs, no reason

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for believing that the information Tutor seeks actually exists, and

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no discussion of why that information might defeat summary

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judgment.

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Circuit's requirements for a Rule 56(d) request.

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motion properly brought as a Rule 56(d) request in its opposition

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brief, the Court would deny a Rule 56(d) request that fails so

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thoroughly to adhere to the standards provided by the Federal Rules

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of Civil Procedure and the Ninth Circuit.

See ECF No. 32-2.

The declaration utterly fails to comply with the Ninth
Were Tutor's

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Nonetheless, American Home and Brosamer have agreed to

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continue the hearing date on the summary judgment motion and to

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inequitable for the Court to require Tutor to follow the original

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schedule, despite Tutor's disregard of the Local Rules and Federal

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Rules of Civil Procedure.

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Brosamer to continue the motion and extend the deadlines, as well

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as the lack of any opposition to Tutor's improper motion,

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demonstrate that such extension would not prejudice any other

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United States District Court

extend the briefing schedule.

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For the Northern District of California

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party.

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Accordingly, the Court hereby ORDERS as follows:

The hearing on Plaintiff's motion for summary judgment (ECF

Defendants shall file any opposition to the motion for summary

Plaintiff shall file any reply in support of the motion for
summary judgment by April 24, 2015;

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The agreement between American Home and

judgment by April 17, 2015;

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It would be

No. 25) is hereby continued to May 15, 2015 at 10:00 a.m.;

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See ECF No. 35.

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Defendants shall file any responses to Plaintiff's complaint,

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ECF No. 1, by April 10, 2015 (the last to day to file a motion

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to be heard on May 15, pursuant to Civil Local Rule 7-2(a));

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Brosamer's motion to extend time, ECF No. 28, is TERMINATED;

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Tutor's administrative motion, ECF No. 32, is DENIED; and

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The parties are instructed to comply with the Civil Local

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Rules and Federal Rules of Civil Procedure in all future

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filings.

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IT IS SO ORDERED.

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Dated: February 26, 2015

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UNITED STATES DISTRICT JUDGE

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