Rogers et al v. Fukase et al
Filing
157
ORDER GRANTING SECOND MOTION TO CONTINUE HEARING AND DENYING AS MOOT EX PARTE MOTION TO SHORTEN TIME TO HEAR MOTION re 152 , re 154 ( Motion Hearing set for 7/27/2011 10:00 AM before JUDGE ALAN C KAY: 43 MOTION for Summary Judgment in Favor o f Third Party Defendants Shuko Realty and Hiroko Ogiwara;) -- The parties are DIRECTED to appear before Magistrate Judge Puglisi on Wednesday, June 8, 2011, at 9:00 a.m., to address their compliance with Magistrate Judge Puglisi 039;s Order on Discovery Motions dated April 25, 2011. . Signed by JUDGE ALAN C KAY on 6/3/11. (eps )CERTIFICATE OF SERVICEParticipants registered 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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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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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 SECOND 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 for a second time 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.1/
the motion.
(ECF No. 152.)
Third-Party Defendants have opposed
(ECF No. 156 (“Opp’n”).)
1/
The hearing is currently
The Court granted Fukase’s previous motion to continue
the hearing. (ECF No. 131.)
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set for Monday, June 27, 2011, alongside a hearing on Fukase’s
motion to dismiss.
The Court has determined that this motion is suitable
for decision without a hearing.
See LR7.2(d).
The Court will
grant the motion and reschedule both hearings to Wednesday, July
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 has claimed in support of her motion that the discovery
ordered by Magistrate Judge Puglisi on April 25, 2011, is
underway but has not yet been completed, preventing her from
mounting an effective defense to Third-Party Defendants’ motion
for summary judgment.
(ECF No. 152-1 at 4 (citing ECF No. 120).)
Third-Party Defendants raise three points in
opposition: first, that Fukase had ample time to complete
discovery in advance of the hearing; second, that Fukase’s motion
is insufficiently supported under Rule 56(d); and third, that a
further continuance will prejudice Third-Party Defendants by
causing them to incur additional attorneys’ fees and costs.
(Opp’n at 2.)
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Third-Party Defendants make much of the timing of
Fukase’s responses.
Magistrate Judge Puglisi’s order required
Fukase to produce her written discovery by May 15, 2011, and
required Third-Party Defendants to produce their written
discovery within seven days of Fukase’s production.
at 5–6.)
(ECF No. 120
Similarly, Fukase was required to appear for a
deposition by May 25, 2011, and Third-Party Defendant Ogiwara and
another witness were required to appear for depositions within
seven days of Fukase’s appearance.
(Id. at 5, 7.)
Third-Party
Defendants assert that Fukase’s problems are of her own doing,
because she could have created earlier discovery deadlines for
them by submitting her own discovery earlier.
Fukase complied with the deadlines set forth in
Magistrate Judge Puglisi’s order.
According to the opposition,
she produced written discovery on May 13, 2011, two days before
she was required to do so, and appeared for a deposition on May
24, 2011, one day before she was required to do so.
Thus Third-
Party Defendants’ written responses were due by May 20, 2011, and
the depositions were to be completed by May 31, 2011.
If Fukase
had received sufficient responses to her discovery requests, she
would have had six days to prepare and file her response to the
motion for summary judgment.
Yet Fukase has expressed concerns in this motion about
the sufficiency of Third-Party Defendants’ discovery responses.
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Without resolving those concerns, it appears to the Court that
they may be warranted, despite Third-Party Defendants’ insistence
that they have fully complied with Magistrate Judge Puglisi’s
order.
(Opp’n at 15.)
For example, in one request for an
admission, Fukase asked Shuko Realty to admit or deny that it
“gave advice and recommendations to the Requesting Party
regarding the said Boundary Wall issue.”
That is a pretty simple question.
(ECF No. 152-4 at 11.)
But Shuko responded with seven
lines of “specific objections,” incorporated four pages of
“general objections,” and finally “responded” with the
nonresponsive statement that “Shuko Realty had several
communications with Fukase concerning the boundary wall.”
(Id.
at 11–12.)
The Court has not seen Fukase’s discovery responses,
but will assume that they are as unresponsive as Third-Party
Defendants’ to avoid a swarm of filings from the other parties
concerning the quality of Fukase’s responses.
The Court
expresses its concern with whether the parties have complied in
good faith with Magistrate Judge Puglisi’s April 25 order, and
orders the parties to appear before Magistrate Judge Puglisi next
Wednesday, June 8, 2011, at 9:00 a.m., to address their
compliance with his order.
Third-Party Defendants’ second argument is that Fukase
has failed to make a sufficient showing under Rule 56(d) that a
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continuance of the hearing is warranted.
The Court agrees.
In
its order granting the previous motion for a continuance, the
Court noted the deficiencies in Fukase’s motion.
(See ECF No.
131 at 3 (“[T]he declaration here contains no specifics as to the
facts sought to be discovered or their preclusive effect on
summary judgment.”).)
Fukase’s attorney submitted a declaration
in support of the motion.
(ECF No. 152-2.)
The declaration in
this motion has the same problems as the first one did.
For
example, the declaration states that during the second part of
the deposition Ogiwara will be “asked to verify and explain
documents that are currently planned to be used in [Fukase’s
response],” but doesn’t state what those documents are or why
they will preclude summary judgment.
(Id. ¶ 27.)
The
declaration also notes that the first part of Ogiwara’s
deposition revealed “the names of employees involved in or
working for Ogiwara at the time of the subject transaction who
may have pertinent information.”
what that information might be.
under Rule 56(d).
(Id. ¶ 31.)
But it doesn’t say
The declaration is insufficient
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
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denying Tatum’s request for a continuance under [Rule
56(d)].”).2/
At the same time, the Court granted the previous motion
for a continuance despite Fukase’s lack of specificity in part
because of Magistrate Judge Puglisi’s standing April 25 order.
(ECF No. 131 at 3–4 (citing Hancock v. Montgomery Ward Long Term
Disability Trust, 787 F.2d 1302, 1306 n.1 (9th Cir. 1986), and
Garrett v. City & Cnty. of S.F., 818 F.2d 1515, 1518 (9th Cir.
1987)).)
Fukase has expressed concerns that Third-Party
Defendants have produced inadequate responses to Fukase’s
discovery requests, thereby failing to comply with Magistrate
Judge Puglisi’s order.
As discussed above, it appears that those
concerns may be well founded.
The Court therefore will grant the
motion to continue despite the deficiencies in Fukase’s filing.
But having now warned Fukase twice about the deficiencies in her
motions to continue, the Court will not accept similarly
deficient explanations should Fukase move yet again for a
continued hearing.
Nor will the Court look kindly on yet another
motion to continue filed at the last minute, should Fukase elect
to choose that path again.
2/
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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Finally, Third-Party Defendants express concern that
Fukase will attempt to notice additional depositions and seek new
discovery.
The Court emphasizes that in granting this motion to
continue the hearing, it is not granting approval of any
discovery requests that were not previously approved in
Magistrate Judge Puglisi’s April 25 order.
For the foregoing reasons, the Court GRANTS Fukase’s
second motion to continue the hearing on Third-Party Defendants’
motion for summary judgment.
All hearings in this matter
currently set for June 27, 2011, are CONTINUED until Wednesday,
July 27, 2011, at 10:00 a.m.
The briefing for that hearing will
follow the ordinary schedule set forth in LR7.4.
The parties are
DIRECTED to appear before Magistrate Judge Puglisi on Wednesday,
June 8, 2011, at 9:00 a.m., to address their compliance with
Magistrate Judge Puglisi’s Order on Discovery Motions dated April
25, 2011.
Finally, Fukase has also moved to shorten the time to
hear this motion to continue the summary-judgment hearing.
No. 154.)
That motion is DENIED as moot.
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(ECF
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, June 3, 2011.
________________________________
Alan C. Kay
Sr. United States District Judge
Rogers v. Fukase, Civ. No. 10-00337 ACK-RLP: Order Granting Second Motion to
Continue Hearing and Denying as Moot Ex Parte Motion to Shorten Time to Hear
Motion
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