Petroliam Nasional Berhad v. GoDaddy.com, Inc.

Filing 131

ORDER re 127 Declaration in Opposition filed by Petroliam Nasional Berhad; ORDER denying Rule 56(d) motion. Signed by Judge Hamilton on 11/17/2011. (pjhlc1, COURT STAFF) (Filed on 11/17/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PETROLIAM NASIONAL BERHAD,

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Plaintiff,

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For the Northern District of California

United States District Court

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v.

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ORDER DENYING PLAINTIFF’S
RULE 56(d) MOTION

GODADDY.COM, INC.,

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No. C 09-5939 PJH

Defendant.
_______________________________/

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Plaintiff Petroliam Nasional Berhad seeks an order pursuant to Federal Rule of Civil

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Procedure 56(d) continuing or denying defendant GoDaddy.com, Inc.’s motion for summary

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judgment.

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In support of the request, plaintiff’s counsel Perry Clark filed a declaration in which

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he states that information regarding GoDaddy’s communications with the registrant of the

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disputed domains, regarding GoDaddy’s policy and conduct regarding Petronas’s

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trademark claims at issue in this case, and regarding the volume, nature, and GoDaddy’s

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handling of claims like plaintiff’s trademark claims at issue in this case is in the possession

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of GoDaddy.

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Mr. Clark asserts that GoDaddy has “refused to provide certain discovery regarding

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this information;” that on October 26, 2011, the parties submitted a joint letter re this

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discovery dispute after meeting and conferring; that the court referred the dispute for

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resolution to Magistrate Judge Maria Elena James; and that after the referral, plaintiff “is

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pursuing its motion to compel according to that order.” Mr. Clark claims that “the

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information outlined above will raise a genuine issue of material fact and, therefore, that the

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present summary judgment motion of GoDaddy should be denied as premature pursuant to

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Fed. R. Civ. P. 56(d).”

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Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for

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specified reasons, it cannot present facts essential to justify its opposition, the court may”

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either “defer considering the motion or deny it,” or “allow time to obtain affidavits or

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declarations or to take discovery,” or “issue any other appropriate order.” Fed. R. Civ. P.

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56(d).

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To obtain postponement or denial under Rule 56(d) for further discovery, the
declaration of the party opposing the motion must show “facts indicating a likelihood that

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For the Northern District of California

United States District Court

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controverting evidence exists as to a material fact;” “specific reasons why such evidence

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was not discovered or obtained earlier in the proceedings;” “the steps or procedures by

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which the opposing party proposes to obtain such evidence within a reasonable time;” and

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“an explanation of how those facts will suffice to defeat the pending summary judgment

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motion.” See Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial (2011

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ed.) § 14:114 (citing cases).

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Here, the declaration of plaintiff’s counsel does not provide specific reasons why

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Petroliam cannot present facts essential to its opposition. In addition, the declaration does

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not explain how the material sought in the outstanding discovery dispute is connected to

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any particular argument raised by GoDaddy in its motion. Nor does the declaration show

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any facts indicating a likelihood that controverting evidence exists as to particular material

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facts – indeed, there is no indication as to which material facts the allegedly missing

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discovery applies. In short, the declaration provides no explanation as to how the evidence

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will suffice to defeat GoDaddy’s motion.

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In addition, the purpose of Rule 56(d) motions is to provide a method to enable a

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party to avoid being “railroaded” by the other side’s filing of an early summary judgment

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motion (i.e., before discovery cutoff). See Celotex Corp. v. Catrett, 477 U.S. 317, 326

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(1986); Schwarzer, et al., § 14:113. The case management and pretrial order in this case
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set a discovery cut-off date of October 19, 2011, and a summary judgment hearing date of

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December 7, 2011. Thus, GoDaddy’s motion can in no way be considered early or

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premature.

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Finally, the case management and pretrial order set the pretrial conference date for

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February 9, 2012, and the trial date for March 5, 2012. Given the upcoming holidays and

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the fact that the issues raised in this case are somewhat complex, continuing the date for

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the summary judgment motions would make it impossible for the trial to go forward as

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scheduled.

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GoDaddy’s motion, the Rule 56(d) request is DENIED.

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For the Northern District of California

United States District Court

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Accordingly, plaintiff having failed to establish good cause to continue or deny

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IT IS SO ORDERED.

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Dated: November 17, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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