Keating et al v. Jastremski et al

Filing 180

ORDER denying without Prejudice 168 Motion for Summary Judgment; granting 177 Ex Parte Application. Signed by Judge M. James Lorenz on 6/23/2017. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEREMY L. KEATING et al.,

Case No.: 3:15-cv-57-L-AGS
Plaintiffs,

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v.

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ORDER GRANTING EX PARTE
APPLICATION [DOC. NO. 177] AND
DENYING WITHOUT PREJUDICE
MOTION FOR SUMMARY
JUDGMENT [DOC. NO. 168]

JOHN A. JASTREMSKI et al.,

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Defendants;
AND RELATED COUNTERCLAIMS.

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Pending before the Court is Ex Parte Application to Take Counter-Defendants'

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Motion for Summary Judgment, or in the Alternative, Motion for Partial Summary

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Judgment off Calendar Until Such Time the Magistrate Hears TRG's Request for an

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Order Show Cause Re: Contempt for Failure to Comply with Discovery Orders ("Ex

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Parte Application") filed by Defendant and Counterclaimant The Retirement Group, LLC

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("TRG"). Counter-defendants Sean Sullivan, Lloyd Silvers, Steven Dalton and Ardent

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Retirement Planning, LLC (collectively "Ardent"), filed an opposition, and TRG replied.

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TRG argues it cannot fully brief its opposition to Ardent's pending summary

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judgment motion because Ardent has failed to produce relevant documents even after the

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Magistrate Judge Andrew G. Schopler granted TRG's motion to compel (doc. no. 156).

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Pending before Judge Schopler is TRG's motion for an order to show cause why Ardent
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3:15-cv-57-L-AGS

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should not be held in contempt for failure to comply with the order granting motion to

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compel (doc. no. 167). TRG claims that while it could file an opposition to Ardent's

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summary judgment motion without production of additional documents, the opposition

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would not be complete, and TRG would request additional time to supplement its

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opposition brief after reviewing the additional documents.

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Ardent counters that granting TRG's Ex Parte Application is not warranted by

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Federal Rule of Civil Procedure 56(d), because TRG admitted that it could file an

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opposition without the additional documents, and accuses TRG of failing to comply with

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TRG's discovery. The Ex Parte Application is not based on Rule 56(d). Further, TRG's

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alleged discovery violations, which also are the subject of orders and pending motions

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before Judge Schopler, are irrelevant to the Ex Parte Application, as Ardent does not

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contend that any documents TRG has failed to produce are necessary to support Ardent's

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motion. Finally, Ardent does not contend that it would be prejudiced, if TRG's Ex Parte

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Application were granted.

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Rule 56 provides for discretion to assure the interests of justice are not overlooked

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in deciding summary judgment motions. See, e.g., Fed. R. Civ. Proc. 56(e) (if a party is

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unable to properly address a factual assertion, the court may grant an opportunity to do so

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or "issue any other appropriate order"). The interests of justice and judicial efficiency are

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best served if the parties and Judge Schopler are given an opportunity to resolve

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discovery issues before TRG is required to file its opposition.

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Accordingly, TRG's Ex Parte Application [doc. no. 177] is GRANTED. Ardent's

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summary judgment motion [doc. no. 168] is DENIED WITHOUT PREJUDICE. Ardent

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may refile its motion after it has complied with Judge Schopler's orders regarding TRG's

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requests for discovery. This Order does not modify any Federal Rules of Civil

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/////

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3:15-cv-57-L-AGS

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Procedure, Civil Local Rules or Judge Schopler's orders regarding the time to file

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summary judgment motions.

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IT IS SO ORDERED.

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Dated: June 23, 2017

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3:15-cv-57-L-AGS