Frost-Tsuji Architects v. Highway Inn, Inc. et al

Filing 292

ORDER DENYING MOTION TO CONTINUE HEARINGS ON MOTIONS FOR SUMMARY JUDGMENT PURSUANT TO RULE 56(d) OF THE FEDERAL RULES OF CIVIL PROCEDURE re 255 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/3/2014. (emt, )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
FROST-TSUJI ARCHITECTS,

)
)
Plaintiff,
)
)
vs.
)
)
HIGHWAY INN, INC.; HO`OLA
)
MAU, LLC; BRYCE UYEHARA,
)
A.I.A., INCORPORATED; J.
)
KADOWAKI, INC.; FESTIVAL
)
MANAGEMENT CORPORATION; et
)
al,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00496 SOM/BMK
ORDER DENYING MOTION TO
CONTINUE HEARINGS ON MOTIONS
FOR SUMMARY JUDGMENT PURSUANT
TO RULE 56(d) OF THE FEDERAL
RULES OF CIVIL PROCEDURE

ORDER DENYING MOTION TO CONTINUE HEARINGS
ON MOTIONS FOR SUMMARY JUDGMENT PURSUANT TO
RULE 56(d) OF THE FEDERAL RULES OF CIVIL PROCEDURE
I.

INTRODUCTION.
On September 17, 2014, motions for partial summary

judgment were filed by Defendants Highway Inn, Inc., and Ho`ola
Mau, LLC (ECF No. 235), J. Kadowaki, Inc. (ECF No. 238), and
Bargreen Ellingson of Hawaii Inc. (ECF No. 239).

These motions,

along with a motion for judgment on the pleadings (ECF No. 237),
are set for hearing on October 28, 2014.

See ECF Nos. 250, 251.

On September 22, 2014, Plaintiff Frost-Tsuji Architects
moved to continue the hearing on the dispositive motions pursuant
to Rule 56(d) of the Federal Rules of Civil Procedure.
motion is denied.

That

The court, however, will refrain from ruling

on the dispositive motions set for hearing on October 28, 2014,
until Magistrate Judge Barry M. Kurren decides the motion to

compel discovery filed by Frost-Tsuji (ECF No. 252), which is set
for hearing on October 29, 2014.
II.

See ECF No. 277.

RULE 56(d) STANDARD.
Rule 56(d) of the Federal Rules of Civil Procedure

provides that, when “a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition [to a motion for summary
judgment], 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).

In 2010, Rule 56 was amended, and the

advisory committee noted that “Subdivision (d) carries forward
without substantial change the provisions of former subdivision
(f).”

Fed. R. Civ. P. 56(d) advisory comm. nn.

Accordingly, the

case law regarding subdivision (f), prior to the amendments,
applies.

Rule 56(d) of the Federal Rules of Civil Procedure

therefore permits a district court to continue a summary judgment
motion “upon a good faith showing by affidavit that the
continuance is needed to preclude summary judgment.”

California

v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (interpreting the
former Rule 56(f) of the Federal Rules of Civil Procedure).
A party requesting a Rule 56(d) continuance bears the
burden of (1) filing a timely application that specifically
identifies relevant information; (2) demonstrating that there is

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some basis to believe that the information sought exists; and
(3) establishing that such information is essential to resist the
summary judgment motion.

See Emp’rs Teamsters Local Nos. 175 &

505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1130 (9th
Cir. 2004) (citation omitted); accord Moss v. U.S. Secret Serv.,
572 F.3d 962, 966 n.3 (9th Cir. 2009) (“Rule 56([d]) requires a
party seeking postponement of a summary judgment motion to show
how additional discovery would preclude summary judgment and why
it cannot immediately provide specific facts demonstrating a
genuine issue of material fact.” (punctuation, quotation marks,
and citation omitted)).

Moreover, the party seeking a Rule 56(d)

continuance must demonstrate that it diligently pursued
discovery.

See Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1005

(9th Cir. 2002) (“The failure to conduct discovery diligently is
grounds for the denial of a Rule 56(f) motion.”); Mackey v.
Pioneer Nat’l Bank, 867 F.2d 520, 524 (9th Cir. 1989) (“A movant
cannot complain if it fails diligently to pursue discovery before
summary judgment.”).
III.

ANALYSIS.
Frost-Tsuji seeks to continue the October 28 hearing on

the dispositive motions based on three arguments: 1) there is a
pending motion for reconsideration of this court’s earlier
summary judgment ruling; 2) Frost-Tsuji says it is owed discovery
in “native formats”; and 3) Frost-Tsuji seeks discovery of text

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messages.

None of these arguments justifies a continuance at

this time.
Frost-Tsuji’s pending motion for reconsideration of the
court’s order granting summary judgment in favor of Defendants on
the copyright claim does not warrant a continuance under Rule
56(d) of the Federal Rules of Civil Procedure.

Rule 56(d) allows

this court to continue a hearing on a motion for summary judgment
when a nonmoving party demonstrates that “it cannot present facts
essential to justify its opposition.”

Frost-Tsuji’s

reconsideration motion has no bearing on its ability to “present
facts essential to justify its opposition.”

Nor would the

reconsideration motion otherwise justify a continuance.

Unless

and until this court actually reconsiders its previous order
granting summary judgment on the copyright claim, Frost-Tsuji
should proceed as if that decision is law of the case.

In

opposing the upcoming dispositive motions, Frost-Tsuji should
refrain from rearguing matters that are no longer relevant based
on the law of the case.

In the event that Frost-Tsuji’s

reconsideration motion is granted, Frost-Tsuji may seek
appropriate relief, including asking the court for permission to
amend its opposition to the dispositive motions.

The court

anticipates deciding the reconsideration motion before October
28, 2014.

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To the extent Frost-Tsuji seeks a continuance of the
dispositive motions based on its assertion that certain parties
still owe it discovery of material in “native” format, FrostTsuji has failed to demonstrate why its receipt of such discovery
is necessary for it to “present facts essential to justify its
opposition.”

There appears to be no dispute that Frost-Tsuji

received substantial discovery in this case.

For example,

Highway Inn and Ho`ola Mau produced “nearly 11,000” pages of
discovery.

See Decl. of David R. Major ¶ 13, ECF No. 275-1,

PageID # 4408.

Frost-Tsuji’s gripe appears to be that these

documents were .pdf copies of the original documents and FrostTsuji wants copies of the documents in their original form.

But

Frost-Tsuji fails to demonstrate what the “native” form of any
document will reveal that is relevant to the pending dispositive
motions.

For example, the metadata contained in the “native”

documents would not demonstrate that any person was told to
remove Frost-Tsuji’s copyright management information.
To the extent Frost-Tsuji seeks a continuance of
Kadowaki’s motion based on Kadowaki’s failure to produce text
messages, Frost-Tsuji has failed to demonstrate that it has
diligently sought that discovery.

Frost-Tsuji’s motion to compel

did not seek text messages from Kadowaki.

See ECF 252.

Frost-

Tsuji cannot complain that it needs more time to conduct
discovery from Kadowaki when Frost-Tsuji has not shown diligence

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in seeking that discovery.

Moreover, Kadowaki has recently

informed Frost-Tsuji that its representatives, Stanley Sato and
John Hirayama, have no text messages responsive to Frost-Tsuji’s
discovery requests.

See ECF No. 273-2, PageID # 4383.

To the extent Frost-Tsuji seeks a continuance of
Highway Inn and Ho`ola Mau’s motions based on their alleged
failure to produce text messages, Frost-Tsuji is unpersuasive.
It does not appear that the text messages Frost-Tsuji seeks still
exist.

Apparently, Monica Toguchi upgraded her phone and gave

her old phone to the Apple Store, and Russell Ryan upgraded his
phone, giving his old phone to Toguchi’s daughter after erasing
its data.

See ECF No. 282, PageID #s 4460-61.

Frost-Tsuji does

not establish that it asked Toguchi or Ryan to preserve their
phones for litigation purposes and therefore cannot now complain
of their failure to do so.

To the extent Frost-Tsuji is asking

the Magistrate Judge to compel a forensic examination of the
cellular phone given by Ryan to Toguchi’s daughter, any such
relief ordered by the Magistrate Judge would need to avoid
invading the daughter’s privacy.

Frost-Tsuji does not even

suggest how that might be accomplished.
To the extent Frost-Tsuji seeks a continuance of
Bargreen’s motion, the court also declines to grant that
continuance.

Frost-Tsuji has been informed that Skip Elkins, of

Bargreen, does not text.

See ECF No. 276-3, PageID # 4427.

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Although it appears that Monica Toguchi of Highway Inn may have
sent Elkins at least one text message, see ECF No. 252-5, PageID
# 4171, it appears that Elkins has no record of that text
message.

See ECF No. 276-3, PageId # 4427.

Frost-Tsuji

concludes that Bargreen has made no reasonable effort to retrieve
the text messages, see ECF No. 281, PageID # 4451, but it is just
as likely that Elkins had, at most, only a few text messages
relating to the restaurant.

The court declines to continue

Bargreen’s motion for summary judgment, as it appears unlikely
that Bargreen has an unproduced text message that is necessary
for Frost-Tsuji to oppose any motion.
Because Rule 56(d) allows this court to issue “any
other appropriate order,” this court will refrain from ruling on
any of the dispositive motions until after Magistrate Judge
Kurren decides the motion to compel discovery.

If Magistrate

Judge Kurren rules, for example, that Bargreen must make further
attempts to retrieve text messages from Elkins’s phone, or that
any other party must undertake similar steps, this court will
refrain from ruling on the motions until after that discovery is
completed and Frost-Tsuji has had the opportunity to submit
relevant text messages to the court that were previously
unavailable.

Because Magistrate Judge Kurren might deny the

motion to compel, the court sees no reason to continue the
hearing on the motions at this time.

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To expedite the ruling on the pending dispositive
motions, any appeal from Magistrate Judge Kurren’s decision on
the motion to compel must be filed within five (5) working days
of his final ruling (i.e., five working days from the hearing if
there is only an oral ruling on the day of the hearing, or five
working days from any written order if a written order follows
the hearing).

Any opposition to such an appeal must be filed

within five (5) working days of the filing of the appeal.
V.

CONCLUSION
For the forgoing reasons, this court denies Frost-

Tsuji’s motion to continue the dispositive motions set for
hearing on October 28, 2014.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 3, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Frost-Tsuji Architects v. Highway Inn, Inc., et al., Civ. No. 13-00496 SOM/BMK; ORDER
DENYING MOTION TO CONTINUE HEARINGS ON MOTIONS FOR SUMMARY JUDGMENT PURSUANT TO RULE
56(d) OF THE FEDERAL RULES OF CIVIL PROCEDURE

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