Rogers et al v. Fukase et al
Filing
131
ORDER GRANTING MOTION TO CONTINUE HEARING AND DENYING AS MOOT EX PARTE MOTION TO SHORTEN TIME TO HEAR MOTION re 121 re 122 . Signed by JUDGE ALAN C KAY on 5/6/11. (eps) -- Court GRANTS Fukase's motion to continue the hearing on Third-Party Defendants' motion for summary judgment. All hearings in this matter currently set for May 23, 2011, are CONTINUED until Monday, June 27, 2011, at 10:00 a.m. The briefing for that hearing will follow the ordinary schedule set fort h in LR7.4. Finally, Fukase has also moved to shorten the time to hear this motion to continue the summary-judgment hearing. (ECF No. 122.) That motion is DENIED as moot CERTIFICATE OF SERVICEParticipants reg istered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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)
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Plaintiffs, )
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vs.
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Makiko FUKASE, et al.,
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Defendants. )
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Henk ROGERS and Akemi ROGERS,
Civ. No. 10-00337 ACK-RLP
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)
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Third-Party Plaintiff, )
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vs.
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Hiroko OGIWARA, et al.,
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Third-Party Defendants.)
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Makiko FUKASE,
ORDER GRANTING MOTION TO CONTINUE HEARING AND
DENYING AS MOOT EX PARTE MOTION TO SHORTEN TIME TO HEAR MOTION
Defendant and Third-Party Plaintiff Makiko Fukase has
moved under Federal Rule of Civil Procedure 56(d) to continue the
hearing on Third-Party Defendants Hiroko Ogiwara and Shuko
International Corporation’s motion for summary judgment.
No. 121.)
(ECF
The hearing is currently set for Monday, May 23, 2011,
alongside a hearing on Fukase’s motion to dismiss.
defendants have opposed the motion.
Third-Party
(ECF No. 125 (“Opp’n”).)
The Court has determined that this motion is suitable for
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decision without a hearing.
See LR7.2(d).
The Court will grant
the motion and reschedule both hearings to Monday, June 27, 2011,
at 10:00 a.m.
Rule 56 provides that “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3)
issue any other appropriate order.”
Fed. R. Civ. P. 56(d).
Fukase’s attorney submitted a declaration in support of
the motion.
(ECF No. 121-1.)
The declaration averred that
Fukase had attempted to obtain discovery in defense of the
summary-judgment motion, but that due to a dispute among the
parties, no discovery had been obtained.
(Id. ¶¶ 7–9.)
It
listed the discovery attempts that had been made by title, but
did not set forth any specific fact sought to be discovered that
would, if obtained, preclude summary judgment.
(Id. ¶ 7.)
It
noted that Magistrate Judge Puglisi has issued an order
addressing the discovery disputes and sought to continue the
hearing on summary judgment until discovery had been completed as
scheduled in that order.
(Id. ¶¶ 10–15 (citing ECF No. 120).)
Third-Party Defendants raise a number of arguments in
opposition.
The most persuasive is that the declaration does not
sufficiently specify the facts that the requested discovery will
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reveal or explain why those facts will preclude summary judgment.
To comply with Rule 56(d), a declaration must do so.
See Tatum
v. City & Cnty. of S.F., 441 F.3d 1090, 1100–01 (“Absent a
showing by Tatum that additional discovery would have revealed
specific facts precluding summary judgment, the district court
did not abuse its discretion by denying Tatum’s request for a
continuance under [Rule 56(d)].”).1/
As described above, the
declaration here contains no specifics as to the facts sought to
be discovered or their preclusive effect on summary judgment.
Yet the Ninth Circuit does not insist on rigid
adherence to the requirements of Rule 56(d).
A pending motion to
compel discovery, for example, has been held “sufficient to raise
[Rule 56(d)] consideration.”
Hancock v. Montgomery Ward Long
Term Disability Trust, 787 F.2d 1302, 1306 n.1 (9th Cir. 1986);
see also Garrett v. City & Cnty. of S.F., 818 F.2d 1515, 1518
(9th Cir. 1987) (“[A]lthough not formally denominated as a
request under [Rule 56(d)], under Ninth Circuit precedent
Garrett’s discovery motion was sufficient to raise the issue of
whether he should be permitted additional discovery.”).
If a pending motion to compel discovery supports
1/
The 2010 Amendments to Rule 56, effective December 1,
2010, moved the provisions of subdivision (f) to subdivision (d)
“without substantial change.” See Fed. R. Civ. P. 56 advisory
committee’s note. Accordingly, the Court’s Rule 56(d) analysis
is informed by precedent construing the former Rule 56(f).
Tatum, for example, construed the rule as previously lettered.
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continuing a summary-judgment hearing, then a standing order to
respond to discovery requests does so even more strongly.
The
order on discovery motions requires that Plaintiffs and ThirdParty Defendants provide written responses to all of Fukase’s
pending discovery requests.
(ECF No. 120 at 6.)
Fukase to take two depositions.
(Id. at 7.)
It also allows
The schedule in the
order suggests that Fukase will obtain written discovery as late
as May 22, 2011, the day before the scheduled hearing, and will
take the depositions as late as June 1, 2011, more than a week
after the scheduled hearing.
(Id. at 5–7.)
It would be
premature to hold a summary-judgment hearing before the courtordered deadlines for responses to Fukase’s discovery requests
have passed.
The remainder of Third-Party Defendants’ arguments in
opposition are unpersuasive.
For example, Third-Party Defendants
complain that Fukase’s discovery efforts were dilatory.
But the
requests were filed two months before the discovery deadline, and
only one month after the motion for summary judgment was filed.
They also claim that Fukase’s delayed discovery responses justify
their own delay in providing discovery.
But Magistrate Judge
Puglisi has already resolved the parties’ discovery dispute, and
the Court will not revisit it.
Finally, the proposition that
Fukase will not be able to prove any of her claims without the
aid of her own expert witness is questionable.
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And in any event,
to the extent that the proposition is viable, it will remain
viable after the pending discovery has been produced.
In a footnote, Third-Party Defendants imply that Fukase
may no longer be pursuing certain claims against them.
5 n.1.)
(Opp’n at
The Court has reviewed the cited filing, which states
that “Fukase has not made ‘affirmative claims’ against [ThirdParty Defendants], but rather has made claims in reaction to the
instant Complaint, to protect herself from any liability that may
be placed upon her due to the actions of [Third-Party
Defendants].”
(ECF No. 77 at 6.)
It does not appear to the
Court that this language indicates an intention to abandon any
claims.
Rather, it appears that Fukase was asserting that she
would not have brought claims against Third-Party Defendants if
Plaintiffs had not brought claims against her.
But to the extent
that there are pending claims that Fukase (or any other party)
may no longer intend to pursue, the pending discovery should help
the parties to clarify their positions.
Any clarification will
in turn facilitate the Court’s review of the pending dispositive
motions and serve judicial economy.
In summary, the Court finds that Third-Party Defendants
have not shown that they will be prejudiced by the continuance of
the hearing.
The Court also notes that because of its own
schedule, the trial currently set to begin on July 19, 2011, will
have to be continued to a later date.
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Continuing the hearing on
summary judgment will therefore not prejudice any party’s
preparation for trial.
For the foregoing reasons, the Court GRANTS Fukase’s
motion to continue the hearing on Third-Party Defendants’ motion
for summary judgment.
All hearings in this matter currently set
for May 23, 2011, are CONTINUED until Monday, June 27, 2011, at
10:00 a.m.
The briefing for that hearing will follow the
ordinary schedule set forth in LR7.4.
Finally, Fukase has also moved to shorten the time to
hear this motion to continue the summary-judgment hearing.
No. 122.)
(ECF
That motion is DENIED as moot.
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, May 6, 2011.
________________________________
Alan C. Kay
Sr. United States District Judge
Rogers v. Fukase, Civ. No. 10-00337 ACK-RLP: Order Granting Motion to Continue
Hearing and Denying as Moot Ex Parte Motion to Shorten Time to Hear Motion
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