Johnson v. Alameda County Medical Center et al

Filing 68

ORDER SETTING NEW DEADLINE FOR ADDITIONAL OPPOSITION. Signed by Judge Claudia Wilken on 7/13/09. (scc, COURT STAFF) (Filed on 7/13/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LISA JOHNSON, by and through her Conservator, Sharon Toth, Plaintiff, v. ALAMEDA COUNTY MEDICAL CENTER; SCOTT ZELLER, M.D.; KURT BIEHL, M.D.; JEANETTE COTANCHE, R.N.; LEONI ALFONSO, R.N.; MADELYNE MARKLE, R.N.; AND CEDRICK FROWNER, Defendants. ____________________________________/ Defendants Alameda County Medical Center (ACMC), Scott Zeller, M.D., Kurt Biehl, M.D., Jeanette Cotanche, R.N., Leoni Alfonso, R.N. and Madelyne Markle, R.N. move for summary judgment or, in the alternative, for partial summary judgment on any or all of Plaintiff Lisa Johnson's claims against them. the motion. The matter was heard on June 25, 2009. Plaintiff was given Plaintiff opposes No. C 07-3395 CW ORDER SETTING NEW DEADLINE FOR ADDITIONAL OPPOSITION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

one week to accept summary adjudication of her civil rights claims and remand of her negligence claim against ACMC to state court, or to file a concise legal memo pointing to actual evidence of wrongdoing specific to each individual and to a policy on the part of ACMC which could support a civil rights claim. Docket No. 64.

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The Court also indicated Plaintiff could address her claim that she was thwarted from conducting discovery. On July 2, 2009, Plaintiff

filed a "Notice of Agreement to Remand," stating that the parties had agreed to remand the case to state court "with the proviso that reasonable mutual discovery can be conducted." Docket No. 65.

Defendants object to Plaintiff's notice on the grounds that it misrepresented that the parties' counsel had entered into an agreement or stipulation. In particular, Defendants object to

continued discovery and ask the Court to rule on the summary judgment motion upon the submitted evidence. Docket No. 66.

Plaintiff's reply states that Defendants agreed to further mutual discovery in state court if Plaintiff agreed to remand, and that her decision to agree to remand was a strategic decision based in part on this understanding. However, Plaintiff submits no evidence

supporting such an agreement between counsel. Docket No. 67. Plaintiff did not file any additional authority or evidence in opposition to summary judgment on her civil rights claim, and Plaintiff has not shown how she has been thwarted from conducting proper discovery. Under Rule 56(f) of the Federal Rules of Civil

Procedure, if Plaintiff can show by affidavit that, for specified reasons, she cannot present facts essential to justify her opposition, the Court may order a continuance to enable discovery to be undertaken. "[T]he party seeking a continuance bears the

burden to show what specific facts it hopes to discover that will raise an issue of material fact. The mere hope that further

evidence may develop prior to trial is an insufficient basis for a continuance under Fed. R. Civ. P. 56(f)." Continental Maritime of

San Francisco v. Pacific Coast Metal Trades Dist. Council, Metal 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Trades Dep't, AFL-CIO, 817 F.2d 1391, 1395 (9th Cir. 1987) (internal citation omitted). To obtain a continuance, the party

opposing the summary judgment motion must make clear not only what information is sought, but also how that information "would preclude summary judgment." (9th Cir. 1998). The Court will give Plaintiff an additional week from the date of this order to file an additional opposition to Defendants' motion for summary judgment, and to state any grounds for a continuance pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. Plaintiff should state, specifically, the information Margolis v. Ryan, 140 F.3d 850, 853

sought through continued discovery, how that information would preclude summary judgment, and why discovery wasn't taken, given that the discovery cutoff has passed. If Plaintiff files an If

opposition, Defendants will have one week to file a reply.

Plaintiff does not file any additional opposition, the Court will rule on the summary judgment motion.

IT IS SO ORDERED.

Dated:

7/13/09 CLAUDIA WILKEN United States District Judge

3