Appel et al v. Boston National Title Agency, LLC

Filing 69

ORDER on 44 Ex Parte Application Pursuant to Fed. R. Civ. P. 56(d) to Defer Consideration of Defendant's Motion for Summary Judgment. Plaintiffs failed to meet their burden to show that additional time to complete the voluminous discovery soug ht and the unlimited time in which to review it is warranted. Accordingly, Plaintiffs' Ex Parte Application pursuant to Rule 56(d) is DENIED. In light of Plaintiffs' pending motion for leave to file a first amended complaint, and after conferring with the District Judge, briefing on the MSJ will remain stayed until further order by the District Judge. Signed by Magistrate Judge Mitchell D. Dembin on 5/9/2019. (acc)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

SOUTHERN DISTRICT OF CALIFORNIA

8
9
10

HOWARD APPEL, DAVID COHEN,
KEE PARTNERS, LLC, a Delaware
limited liability company,

11
12
13
14
15

v.
BOSTON NATIONAL TITLE
AGENCY, LLC, a Florida limited
liability company,

20
21
22
23
24
25
26
27

[ECF NO. 44]

Defendant.

17
19

ORDER ON EX PARTE
APPLICATION PURSUANT TO
FED. R. CIV. P. 56(d) TO DEFER
CONSIDERATION OF
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

Plaintiffs,

16
18

Case No.: 18-cv-0873-BAS-MDD

Presently before the Court is Plaintiffs’ Ex Parte Application to
defer consideration of Defendant’s Motion for Summary Judgment and to
allow time to take discovery pursuant to Federal Rule of Civil Procedure
56(d). (ECF No. 44). Plaintiffs filed this Ex Parte Application on March 15,
2019. (ECF No. 44). Defendant filed its opposition on March 19, 2019. (ECF
No. 46).
I.

Background
Discovery opened in this case on August 8, 2018. (ECF No. 22).

Defendant filed its MSJ on March 8, 2019, the deadline to bring such
motions. (Id.; ECF No. 42). Apart from a few outstanding depositions that
1
18-cv-0873-BAS-MDD

1

were the subject of individualized extensions, discovery also closed on March

2

8, 2019. (ECF No. 22). Despite having seven months to discover facts to

3

support their case, Plaintiffs contend they still require significant additional

4

discovery. Plaintiffs want to, “at a minimum[:]” (1) conduct discovery

5

resulting from the Rule 72 Objections; 1 (2) obtain communications that have

6

allegedly never been produced; (3) depose Keith Lewis regarding his MSJ

7

supporting declaration; (4) review the over 1,000 pages of documents

8

produced by Concierge; and (5) receive and review the transcripts of

9

depositions taken on March 11 and 12, 2019. (ECF No. 44 at 8). Plaintiffs

10

then claim they will need to do any follow-on discovery that results from the

11

proposed discovery. (Id.). Plaintiffs request that a new hearing date for

12

Defendant’s pending MSJ “be set only after Plaintiffs have received and

13

reviewed the discovery requested.” (Id. at 13).
In Plaintiffs’ Counsel’s declaration, Plaintiffs explain that through the

14
15

above proposed discovery, they seek facts to prove their case. This would

16

include: (1) what happened to their funds while on deposit with Boston

17

National; (2) who had control over the funds; (3) who was giving Boston

18

National direction concerning the funds; (4) why Boston National paid

19

Concierge more deference than it did to Plaintiffs with regard to their funds,

20

and whether or not that deference breached its fiduciary duties to Plaintiffs;

21

and (5) why Boston National did not do more to return Plaintiffs’ funds after

22
23
24
25
26
27

The unredacted escrow account records have been the subject of significant motion
practice in this and related litigation. (ECF Nos. 30, 31, 35, 36, 57, 58, 61, 63, 68; see
generally 18-cv-2617). This Court denied Plaintiffs’ request to compel the production of
unredacted account records on January 14, 2019. (ECF No. 30). The Court then denied
Plaintiffs’ motion to reconsider that order on April 30, 2019. (ECF No. 68). In light of this
ruling, Plaintiffs have nothing further to review than what has already been produced.
Therefore, these documents cannot form the basis for reopening discovery.
1

2
18-cv-0873-BAS-MDD

1

it became clear that the underlying transaction failed. (ECF No. 44-2, ¶ 7).

2

Defendant opposes Plaintiffs’ Application because Plaintiffs failed to

3

specifically state the facts they believe will be revealed through additional

4

discovery and how those facts will preclude summary judgment. (See

5

generally ECF No. 46).

6

II.

Legal Standard

7

District courts have “wide latitude in controlling discovery, and [their]

8

rulings will not be overturned in the absence of a clear abuse of discretion.”

9

State of California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (quoting

10

Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1467 (9th Cir.1985)). Federal

11

Rule of Civil Procedure 56(d) permits a court to grant certain relief to the

12

nonmoving party when it “shows by affidavit or declaration that, for specified

13

reasons, it cannot present facts essential to justify its opposition [of a motion

14

for summary judgment].” The court may “(1) defer considering the [summary

15

judgment] motion or deny it; (2) allow time to obtain affidavits or

16

declarations or to take discovery; or (3) issue any other appropriate order.”

17

FED. R. CIV. P. 56(d). Rule 56(d) is designed to deal with “premature”

18

summary judgment motions, where the nonmoving party has not had a fair

19

opportunity to conduct discovery prior to filing its opposition. See Celotex

20

Corp. v. Catrett, 477 U.S. 317, 326 (1986).

21

Relief under Rule 56(d) is not a matter of right. The nonmoving party

22

must provide more than just “[b]are allegations or vague assertions of the

23

need for discovery.” Everson v. Leis, 556 F.3d 484, 493 (6th Cir. 2009).

24

Instead, they “must identify by affidavit the specific facts that further

25

discovery would reveal, and explain why those facts would preclude summary

26

judgment.” Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1100 (9th Cir.

27

2006).
3
18-cv-0873-BAS-MDD

1
2

III. Discussion
The Court finds that deferring consideration of Defendant’s MSJ and

3

granting Plaintiffs an unlimited time to continue their search for facts to

4

support their case is not warranted. Rule 56(d) is designed to prevent a party

5

from being “railroaded” by an opponent’s premature summary judgment

6

motion. See Celotex Corp., 477 U.S. at 326. That is not the case here.

7

Plaintiffs have had more than seven months to complete discovery.

8
9

Ninth Circuit case law clearly outlines a party’s burden in requesting
relief under Rule 56(d). The party must “identify the specific facts that

10

further discovery would reveal and explain why those facts would preclude

11

summary judgment.” Tatum, 441 F.3d at 1100 (emphasis added). Plaintiffs

12

have only identified the general discovery they wish to engage in, described

13

the documents they have not had time to review, and restate the general

14

allegations they must prove to prevail on their claims. Plaintiffs’ opposition

15

to the MSJ was not due until March 25, 2019. They had sufficient time to

16

identify the specific facts that would likely be revealed by the desired

17

discovery as required under the rule. They had an opportunity to explain

18

how those facts would preclude summary judgment. They failed to do so.

19

Plaintiffs instead claim they cannot inform the Court about any specific

20

facts they seek because that would “surely violate the Attorney Work-Product

21

doctrine.” (ECF No. 44 at 14). The Court fails to see how explaining the

22

basis for Plaintiffs’ request for additional time to complete discovery would

23

violate the work product doctrine. Therefore, the Court finds Plaintiffs failed

24

to meet their burden under Rule 56(d).

25

Even if Plaintiffs had met their burden, the Court concludes that

26

Plaintiffs’ concerns regarding past discovery or any failure to engage in

27

desired discovery is not good cause to reopen discovery after it has closed. To
4
18-cv-0873-BAS-MDD

1

the extent Plaintiffs contest the sufficiency of other discovery already

2

produced, per this Court’s Civil Chambers Rule IV. C. 2, discovery disputes

3

must be brought within 30 days or they are waived. A Rule 56(d) request is

4

not a substitute vehicle to bring discovery disputes after the time has lapsed.

5

To the extent Plaintiffs seek new opportunities to discover the facts they need

6

or additional time to review documents already produced, the Court does not

7

find good cause to further delay this case by reopening discovery.
CONCLUSION

8
9

Plaintiffs failed to meet their burden to show that additional time to

10

complete the voluminous discovery sought and the unlimited time in which to

11

review it is warranted. Accordingly, Plaintiffs’ Ex Parte Application

12

pursuant to Rule 56(d) is DENIED.

13

In light of Plaintiffs’ pending motion for leave to file a first amended

14

complaint, and after conferring with the District Judge, briefing on the MSJ

15

will remain stayed until further order by the District Judge.

16

However, no additional discovery will be permitted at this time unless

17

separately authorized by the Court.

18
19

Dated: May 9, 2019

20
21
22
23
24
25
26
27
5
18-cv-0873-BAS-MDD