izaguirre v. Greenwood Motor Lines, Inc.

Filing 38

MEMORANDUM ORDER Re: Motions for Summary Judgment, to Amend and to Modify Case Management Order. Plaintiff's motion to amend the Complaint is DENIED; Plaintiff's motion to modify the case management is DENIED; and Defendant's motion for summary judgment is GRANTED. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF IDAHO

10

----oo0oo----

11

RUBIO IZAGUIRRE, an individual,

12

Plaintiff,

NO. CIV. 1:10-581 WBS
13

v.

MEMORANDUM AND ORDER RE:
MOTIONS FOR SUMMARY JUDGMENT,
TO AMEND, AND TO MODIFY CASE
MANAGEMENT ORDER

14
15

17

GREENWOOD MOTOR LINES, INC., an
Ohio corporation, d/b/a R+L
CARRIERS and John/Jane Does I
through X, whose true identities
are presently unknown,

18

Defendants.

16

19

/
----oo0oo----

20
21

Plaintiff Rubio Izaguirre brought this action against

22

defendant Greenwood Motor Lines, Inc. (“Greenwood”) arising out

23

of defendant’s alleged discrimination in the workplace on the

24

basis of disability.

25

motion for summary judgment pursuant to Rule 56, plaintiff’s

26

motion to amend complaint, and plaintiff’s motion to modify case

27

management order.

28

///

Presently before this court is defendant’s

1

1

I.

Factual and Procedural Background

2

Plaintiff was employed by R&L Carriers Shared Services,

3

LLC (“R&L”) from May 2006 until he was terminated in 2009.

(Curl

4

Aff. at 2 (Docket No. 32-1).)

5

as the payor on plaintiff’s paychecks and W-2 forms.

6

August 10, 2009, plaintiff filed charges with the Idaho Human

7

Rights Commission (“IHRC”) and the Equal Employment Opportunity

8

Commission (“EEOC”) against R&L for discrimination based on

9

disability.

During this period, R&L was listed
Id.

On

(Curl Aff. at 2 (Docket No. 24-3).)

Plaintiff filed this Complaint on November 22, 2010,

10
11

against defendant.

(Docket No. 1.)

On January 18, 2011,

12

defendant answered plaintiff’s Complaint.

13

Defendant’s first affirmative defense stated that: “[t]he

14

Complaint fails to state a claim upon which relief can be granted

15

because Plaintiff has not sued his employer.”

(Docket No. 4.)

(Id. at 3.)

16

The parties submitted a stipulated litigation plan on

17

March 17, 2011, that included a proposed deadline for amendment

18

of pleadings and joinder of parties.

19

21, 2011, the court issued a Case Management Order that ordered

20

that amendment of pleadings and joinder of parties was to be

21

completed on or before June 27, 2011.

(Docket No. 11.)

On March

(Docket No. 12 at 1-2.)

On May 16, 2011, the parties unsuccessfully mediated

22
23

the case.

24

29).)

25

Defendant alleges that R&L was present at the mediation because

26

the mediation was also attempting to settle plaintiff’s workers

27

compensation case, which

28

(Reply in Supp. of Mot. for Summ. J. at 3 (Docket No.

Both defendant and R&L participated in the mediation.

plaintiff had filed against R&L.

On May 24, 2011, the case was reassigned.
2

Id.

(Docket No.

1

18.)

2

Order was issued prior to the reassignment (Docket No. 12) and

3

the deadlines set forth in that Order will govern this case.”

4

Id.

5

The court issued an order stating that “[a] Case Management

On May 31, 2011, plaintiff stipulated to the filing of

6

an amended answer.

(Docket No. 19.)

7

Defendant amended its first

affirmative defense to read:
The Complaint fails to state a claim upon which relief
can be granted because Plaintiff has not sued his
employer. Plaintiff was employed by R&L Carriers Shared
Services, LLC. R&L Carriers Shared Services, LLC expects
Plaintiff to promptly amend his Complaint, so as to
dismiss Greenwood Motor Lines, Inc. and R&L Carriers.”

8
9
10
11
12

(Docket No. 21 at 3) (emphasis added).

13

On June 23, 2011, defendant served its responses to

14

plaintiff’s requests for admission, which were part of

15

plaintiff’s first set of written discovery.

16

3 (Docket No. 30).)

17

responded: “Greenwood never employed Mr. Izaguirre.

18

therefore, can neither admit nor deny” the request for admission.

19

Id.

(Monteleone Aff. Ex.

In response to each question, defendant
Greenwood,

On June 27, 2011, the deadline for amendment of

20
21

pleadings and joinder of parties expired.

22

defendant moved for summary judgment.

23

that same day, plaintiff moved to amend the Complaint to replace

24

defendant with R&L.

25

plaintiff moved to modify the case management order to extend the

26

deadline to amend the pleadings.

27

///

28

///

(Docket No. 25.)

On June 30, 2011,

(Docket No. 24.)

On August 11, 2011,

(Docket No. 30.)

3

Later

1
2

II.

Discussion
A.

3

Motion to Amend
Generally, a motion to amend is subject to Rule 15(a)

4

of the Federal Rules of Civil Procedure, which provides that

5

leave to amend “shall be freely given when justice so requires.”

6

Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999) (quoting Fed.

7

R. Civ. P. 15(a)).

8

filed a pretrial scheduling order pursuant to Federal Rule of

9

Civil Procedure 16[,] which establishe[s] a timetable for

However, “[o]nce the district court ha[s]

10

amending pleadings[,] that rule’s standards control[].”

11

v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.

12

1992).

13

16(b), we would render scheduling orders meaningless and

14

effectively would read Rule 16(b) and its good cause requirement

15

out of the Federal Rules of Civil Procedure.”

16

Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998).

17

Johnson

“If we considered only Rule 15(a) without regard to Rule

Sosa v. Airprint

Under Rule 16(b), a party seeking leave to amend must

18

demonstrate “good cause.”

19

‘good cause’ standard primarily considers diligence of the party

20

seeking the amendment.”

21

moving] party [is] not diligent, the inquiry should end.”

22

Generally, “carelessness is not compatible with a finding of

23

diligence and offers no reason to grant relief.”

Fed. R. Civ. P. 16(b).

Johnson, 975 F.2d at 609.

“Rule 16(b)’s

“If [the
Id.

Id.

In Johnson, the Ninth Circuit upheld the denial of a

24
25

motion to amend under very similar circumstances.

26

case, Johnson sued the wrong defendant after suffering a ski

27

injury.

28

(“Mammoth Recreations”) denied ownership or operation of the ski

Id. at 606.

As in this

In its answer, Mammoth Recreations, Inc.

4

1

resort where Johnson’s injury occurred.

2

Mammoth Recreations responded to interrogatories stating that

3

“Mammoth Recreations, Inc. neither owns nor operates the [ski

4

resort] premises.”

5

pleadings, Mammoth Recreations contacted Johnson’s counsel to

6

reiterate that Mammoth Recreations was a holding company and

7

offered to stipulate to the substitution of Mammoth Mountain Ski

8

Area, Inc. as the defendant.

9

no further action.

Id.

Id.

During discovery,

After Johnson failed to amend his

Id. at 607.

Johnson’s counsel took

Mammoth Recreations moved for summary

10

judgment four months after the deadline for amendment had expired

11

based on Johnson’s failure to name the proper party and Johnson

12

moved to amend.

13

Recreations’s motion for summary judgment, finding an absence of

14

“extraordinary circumstances” that would justify plaintiff’s

15

untimely amendment.1

16

that Johnson’s carelessness and lack of diligence upon being

17

notified that Mammoth Recreations was not the proper defendant

18

did not meet Rule 16(b)’s good cause standard.

19

Id.

The district court granted Mammoth

Id.

The Ninth Circuit affirmed, noting

Id. at 609-10.

Plaintiff fails to demonstrate diligence prior to the

20

amendment deadline.

On multiple occasions, defendant alerted

21

plaintiff to the fact that it was not plaintiff’s employer.

22

Plaintiff was first notified when defendant filed its answer to

23
24
25
26
27
28

1

In oral arguments, plaintiff argued that the Johnson
court relied on language in the case management order stating
that “extraordinary circumstances” were needed to amend the case
management order in addition to meeting Rule 16's requirement.
This argument ignores the court’s finding that “as a practical
matter, extraordinary circumstances is a close correlate of good
cause.” Johnson, 975 F.2d at 610. As the decision in Johnson is
primarily based upon an analysis of Rule 16, this court’s
reliance on the decision is proper.
5

1

the Complaint on January 18, 2011, almost six months prior to the

2

deadline to file amendments.

3

time when defendant amended its answer to the Complaint on May

4

31, 2011, almost a month before the pleadings deadline.

5

notification, defendant specifically stated that the proper

6

defendant was R&L Carriers Shared Services, LLC, which

7

“expect[ed] Plaintiff to promptly amend his Complaint.”

8

No. 21 at 3.)

9

defendant served its responses to plaintiff’s requests for

Plaintiff was notified a second

In this

(Docket

Finally, plaintiff was notified a third time when

10

admission on June 23, 2011.

11

and repeated signals that the proper party had not been named in

12

the Complaint.

13

attorneys “filed pleadings and conducted discovery but failed to

14

pay attention to the responses they received.

15

the kind of case management that Rule 16 is designed to

16

eliminate.”

17

Plaintiff failed to heed these clear

It appears to the court that plaintiff’s

That is precisely

Johnson, 975 F.2d at 610.

Plaintiff argues that he exercised diligence by filing

18

his motion to amend only three days after the pleadings deadline,

19

thus distinguishing the circumstances here from those in Johnson.

20

However, plaintiff’s motion is responsive to defendant’s motion

21

for summary judgment filed early that day.

22

four months to file its motion for summary judgment, as the

23

defendant did in Johnson, there is nothing to suggest that

24

plaintiff would have affirmatively moved to amend his pleadings

25

in the meantime.

26

Had defendant waited

If plaintiff believed that a corporate relationship

27

existed between defendant and R&L that would justify filing only

28

against defendant, it was incumbent upon him to conduct early
6

1

discovery on that particular issue.

2

written discovery contained fifty-eight requests for production

3

that appear to assume that defendant employed plaintiff directly

4

and do not specifically address defendant’s relationship with

5

R&L.

6

being directed at uncovering the corporate relationship between

7

defendant and R&L is contrived at best.

8
9

Plaintiff’s first set of

Plaintiff’s recharacterization of his discovery requests as

Plaintiff cites several authorities for the proposition
that information uncovered during discovery can justify post-

10

deadline amendment of the pleadings.

In these cases, post-

11

deadline amendment was permitted due to new and unanticipated

12

information produced after the amendment deadline.

13

Ciena Corp. v. Nortel Networks, Inc., 233 F.R.D. 493, 495 (E.D.

14

Tex. 2006) (allowing post-deadline amendments of pleadings based

15

on information obtained after the amendment deadline).

16

points to no evidence discovered after the amendment deadline

17

that would constitute good cause and justify his untimely motion.

18

Delay due to untimely or misleading discovery responses

See, e.g.,

Plaintiff

19

can constitute good cause for untimely amendments to pleadings.

20

See Pears v. Mobile Cnty., 645 F. Supp. 2d 1062, 1085-86 (S.D.

21

Ala. 2009) (finding good cause for post-deadline amendment where

22

defendant misled plaintiff as to its correct name).

23

argues that defendant’s failure to meaningfully participate in

24

discovery negatively impacted his ability to litigate the matter.

25

Plaintiff received defendant’s initial responses to the

Plaintiff

26

interrogatories on June 23, 2011, several days prior to the

27

deadline to amend the pleadings.

28

not satisfied with the discovery responses, he could have amended

At that time, if plaintiff was

7

1

his Complaint, moved to compel additional discovery, or moved to

2

modify the case management order to extend the deadline to modify

3

the pleadings.

4

waited until defendant filed its motion for summary judgment to

5

take any action on the matter.

6

Plaintiff did none of those things, and instead

In Pears v. Mobile County, 645 F. Supp. 2d 1062 (S.D.

7

Ala. 2009), the court found that where the defendant carefully

8

worded its discovery responses and pleadings to mislead

9

plaintiff, the behavior constituted good cause to allow the

10

plaintiff to amend his pleadings after the amendment deadline.

11

Id. at 1085-86.

12

responses present in this case.

13

defense in its answer to the Complaint that plaintiff was not

14

employed by defendant.

15

the Complaint to specify that R&L was plaintiff’s employer and

16

therefore the proper defendant.

17

during discovery did defendant suggest or imply that it employed

18

plaintiff.2

There were no such misleading discovery
Defendant pled as an affirmative

Defendant further amended its answer to

Unlike in Pears, at no time

Defendant’s behavior in this case has not been

19
20
21
22
23
24
25
26
27
28

2

Plaintiff argues that defendant’s last-minute refusal
to produce Mr. Gournichec for a deposition scheduled on July 27,
2011, prevented plaintiff from properly litigating the action.
Plaintiff further argues that by scheduling the deposition,
defendant mislead plaintiff into believing that defendant was a
proper party that employed Mr. Gournichec. Although defendant’s
behavior in scheduling the deposition is questionable, when
viewed in the context of defendant’s clear efforts to deny that
it employed plaintiff, it is not sufficient to show good cause
for plaintiff’s motion. Furthermore, any harm that plaintiff
suffered as a result of defendant’s last-minute cancellation of
the deposition cannot be used to explain why plaintiff failed to
amend his Complaint prior to the June 27, 2011, pleadings
deadline as the deposition was scheduled to occur one month
later.
Plaintiff also argues that R&L’s participation in
mediation was misleading. However, it appears that the mediator
8

1

sufficiently untimely or misleading to justify delay by plaintiff

2

in amending his Complaint.

3

Regardless of defendant’s responsiveness to plaintiff’s

4

discovery requests, plaintiff should have known the identity of

5

his employer without conducting discovery.

6

plaintiff’s paychecks and W-2 forms, plaintiff named R&L in his

7

charge with the EEOC and IHRC, and plaintiff had previously filed

8

a workman’s compensation claim against R&L as his employer.

9

(Curl Aff. (Docket No. 32-1).)

R&L was the payer on

Plaintiff’s ability to

10

immediately file a motion to amend the Complaint to substitute

11

R&L as the defendant on the very day that defendant filed its

12

motion for summary judgment is further proof that plaintiff did

13

not need additional discovery to determine that defendant was an

14

improper party.

15

Rule 16(b) does not require a showing of prejudice,

16

although it may be considered at the court’s discretion when

17

applying the good cause standard.

18

Co., 232 F.3d 1271, 1295 (9th Cir. 2000).

19

failed to show good cause for his untimely motion to amend, a

20

finding of prejudice is not necessary in this case.

21

however, argues that amendment should be allowed because R&L will

22

not be prejudiced as leave to amend was filed only three days

23

after the amendment deadline and R&L was aware of the suit.

24

Plaintiff’s reliance on Krupski v. Costa Crociere

See Coleman v. Quaker Oats
As plaintiff has

Plaintiff,

25

S.p.A., --- U.S. ----, 130 S. Ct. 2485 (2010), to show the

26

relevance of R&L’s awareness of the suit is improper.

In

27
28

was also trying to settle plaintiff’s workman’s compensation
claim, in which R&L was a named party as plaintiff’s employer.
9

1

Krupski, the Supreme Court held that the proper party’s prior

2

knowledge of the suit was relevant when considering relation back

3

under Rule 15(c)(1)(C).

4

relation back is only relevant after a court has determined that

5

amendment to the pleadings would otherwise be proper.

6

Grimsley v. Methodist Richardson Med. Ctr. Found., Inc., No.

7

3:09-CV-2011-D, 2011 WL 825749, at *6 n.7 (N.D. Tex. Mar. 3,

8

2011).

9

named as the d/b/a in the original pleadings does not change the

Id. at 2489-90.

The propriety of

See

The fact that R&L’s parent company, R&L Carriers, was

10

court’s analysis.

Even though defendant may be a corporate

11

cousin of R&L, plaintiff still sued the wrong entity.

12

the holding company of the proper defendant was not sufficient in

13

Johnson, suing a subsidiary of the proper defendant doing

14

business as the proper defendant’s parent company is not

15

sufficient here.

If suing

Furthermore, defendant’s litigation strategy up to this

16
17

point has been shaped by plaintiff having named the wrong

18

defendant.

19

the motion for summary judgment discussed below, and in

20

responding to and conducting discovery.

21

entirely different defendant will result in wasted discovery

22

time, and will likely result in duplication of discovery efforts

23

and the need for additional discovery necessitating an extension

24

in deadlines.

25

motion to amend the Complaint.

26
27
28

B.

Defendant relied upon this representation in making

The substitution of an

Accordingly, the court will deny plaintiff’s

Motion to Modify Case Management Order
The Case Management Order specified that the deadline

to amend the pleadings “shall only be extended for good cause
10

1

shown” under the restrictive provisions of Rule 16.

2

12, ¶ 1.)

3

to plaintiff’s motion to amend the pleadings.

4

court will deny plaintiff’s motion to modify the case management

5

order.

6

C.

(Docket No.

This is the same standard that the court has applied
Accordingly, the

Motion for Summary Judgment
Summary judgment is proper “if the movant shows that

7
8

there is no genuine dispute as to any material fact and the

9

movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

10

P. 56(a).

A material fact is one that could affect the outcome

11

of the suit, and a genuine issue is one that could permit a

12

reasonable jury to enter a verdict in the non-moving party’s

13

favor.

14

(1986).

15

burden of establishing the absence of a genuine issue of material

16

fact and can satisfy this burden by presenting evidence that

17

negates an essential element of the non-moving party’s case.

18

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

19

Alternatively, the moving party can demonstrate that the

20

non-moving party cannot produce evidence to support an essential

21

element upon which it will bear the burden of proof at trial.

22

Id.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

23

Once the moving party meets its initial burden, the

24

burden shifts to the non-moving party to “designate ‘specific

25

facts showing that there is a genuine issue for trial.’”

26

324 (quoting then-Fed. R. Civ. P. 56(e)).

27

the non-moving party must “do more than simply show that there is

28

some metaphysical doubt as to the material facts.”
11

Id. at

To carry this burden,

Matsushita

1

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

2

“The mere existence of a scintilla of evidence . . . will be

3

insufficient; there must be evidence on which the jury could

4

reasonably find for the [non-moving party].”

5

at 252.

Anderson, 477 U.S.

6

In deciding a summary judgment motion, the court must

7

view the evidence in the light most favorable to the non-moving

8

party and draw all justifiable inferences in its favor.

9

255.

Id. at

“Credibility determinations, the weighing of the evidence,

10

and the drawing of legitimate inferences from the facts are jury

11

functions, not those of a judge . . . ruling on a motion for

12

summary judgment . . . .”

13

Id.

The American with Disabilities Act (“ADA”) prohibits

14

discrimination based upon disability.

15

under the ADA may only be brought against a plaintiff’s employer.

16

See 42 U.S.C. § 121112(a).

17

on the grounds that it did not employ plaintiff and therefore

18

cannot be sued for violations of the ADA.

19

Claims for violations

Defendant moves for summary judgment

Plaintiff does not claim that he was employed by

20

defendant.

Rather, plaintiff argues that under the single-

21

employer doctrine defendant and R&L should be treated as a single

22

employer.

23

separate companies may be so interrelated that they constitute a

24

single employer subject to liability under Title VII.”

25

Negron v. Merck & Co., Inc., 488 F.3d 34, 40-41 (1st Cir. 2007).

26

In Morgan v. Safeway Stores, Inc., 884 F.2d 1211 (9th Cir. 1989),

27

the Ninth Circuit held that two entities should be treated as one

28

for the purposes of an employment discrimination claim if they

“Under the ‘single employer’ doctrine, two nominally

12

Torres-

1

have: “(1) interrelated operations, (2) common management, (3)

2

centralized control of labor relations, and (4) common ownership

3

or financial control.”

4

Id. at 1213.

Plaintiff alleges that defendant and R&L have “the same

5

management, directors, and officers.”

(Aff. of Counsel at 2

6

(Docket No. 26-2).)

7

between defendant’s assumed business name, R&L Carriers, and

8

R&L’s name as evidence of their interrelatedness.

9

for Summ. J. at 6-7 (Docket No. 26-1).)

Plaintiff also points to the similarity

(Opp. to Mot.

Plaintiff further

10

alleges that defendant is wholly owned by R&L Carriers.

11

in Supp. of Mot. to Amend at 5 (Docket No. 30).)

12

(Reply

Plaintiff’s factual allegations fall far short of

13

creating a genuine issue for trial.

14

appropriate for directors of a parent corporation to serve as

15

directors of its subsidiary,” United States v. Bestfoods, 524

16

U.S. 51, 68 (1998), the overlap of directors and officers alone

17

does not indicate that the entities act as a single employer.

18

Furthermore, Plaintiff fails to establish the existence of

19

centralized control of employment decisions and labor relations,

20

nor does he show that any of defendant’s directors were involved

21

in the discriminatory decision.

22

Inc., 398 F.3d 339, 343 (5th Cir. 2005) (stating that the “most

23

important” determination under the single-employer test is

24

“[w]hat entity made the final decision regarding employment

25

matters relating to the person claiming discrimination”).

26

As it is “entirely

See Johnson v. Crown Enters.,

In the event that the court is inclined to grant

27

defendant’s motion for summary judgment, plaintiff requests

28

further discovery pursuant to Federal Rule of Civil Procedure
13

1

56(d) on the issue of the corporate relationship between

2

defendant and R&L.3

3

judgment cannot present “facts essential to justify his

4

opposition” to the motion, Rule 56(d) permits the party to submit

5

an affidavit or declaration stating the reasons the party is

6

unable to present the evidence, and the court may continue or

7

deny the motion if the opposing party needs to discover essential

8

facts.

9

1515, 1518 (9th Cir. 1987) (citing Hall v. Hawaii, 791 F.2d 759,

When a party opposing a motion for summary

See Garrett v. City & Cnty. of San Francisco, 818 F.2d

10

761 (9th Cir. 1986); Hancock v. Montgomery Ward Long Term

11

Disability Trust, 787 F.2d 1302, 1306 (9th Cir. 1986)).

12

burden is on the party seeking additional discovery pursuant to

13

Rule 56(d) to demonstrate that (1) the information sought would

14

prevent summary judgment, and (2) the information sought exists.

15

See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th

16

Cir. 1996).

17

The

Rule 56(d) requires that “a nonmovant shows by

18

affidavit or declaration that, for specified reasons, it cannot

19

present facts essential to justify its opposition.”

20

P. 56(d).

21

discovery under Rule 56(d).

22

affidavit or declaration to the court explaining why he is unable

23

to present the facts necessary to oppose defendant’s motion.

Fed. R. Civ.

Plaintiff fails to properly move for additional
First, plaintiff did not submit an

24
25
26
27
28

3

Plaintiff technically requests additional time to
conduct discovery pursuant to Rule 56(f). The 2010 amendments to
the Federal Rules of Civil Procedure Rule replaced Rule 56(f)
with Rule 56(d). The Committee Notes clarify that “[s]ubdivision
(d) carries forward without substantial change the provisions of
former subdivision (f).” Fed. R. Civ. P. 56 Advisory Committee’s
Note. The court will therefore interpret plaintiff’s request for
further discovery as being pursuant to Rule 56 (d).
14

1

“Failure to comply with the requirements of [Rule 56(d)] is a

2

proper ground for denying discovery and proceeding to summary

3

judgment.”

4

1439, 1443 (9th Cir. 1986).

5

Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d

Second, plaintiff fails to describe how the information

6

sought would prevent summary judgment.

7

additional time to conduct discovery on the corporate

8

relationship between defendant and R&L.

9

survive the motion for summary judgment, plaintiff would also

10

need to show “[w]hat entity made the final decisions regarding

11

employment matters related to the person claiming

12

discrimination.”

13

such information is not included in plaintiff’s request for

14

additional discovery pursuant to Rule 56(d).

15

Plaintiff requests

However, in order to

Crown Enters., 398 F.3d at 343.

Discovery of

Finally, plaintiff has failed to demonstrate why he is

16

unable to present the facts necessary to oppose this motion.

17

discussed above, plaintiff was on notice of defendant’s

18

affirmative defense.

19

have conducted discovery on this issue or filed a motion to

20

compel discovery already requested prior to the motion for

21

summary judgment.

22

court granted plaintiff’s unopposed motion to stay discovery on

23

September 15, 2011.

24

filing of defendant’s motion for summary judgment to move to

25

compel discovery, yet plaintiff never did so.

26

As

There was sufficient time for plaintiff to

Discovery in this case was ongoing until the

Plaintiff had over two months from the

For the foregoing reasons, plaintiff’s request for

27

additional time to conduct discovery pursuant to Rule 56(d) must

28

be denied, and defendant’s motion for summary judgment must be
15

1

granted.

2

implementing the ADA provides that “[a] complainant may file a civil

3

action in district court within ninety (90) days of issuance of the

4

notice of administrative dismissal.”

5

Accordingly, since plaintiff received notice of his right to sue from

6

the EEOC on October 5, 2010, and from the IHRC on September 16, 2010,

7

(Compl. ¶ 9), his ability to refile his claim may well be barred.

8

Because plaintiff will not likely be able to refile his claims

9

against his proper employer due to the lapse of the statute of

The court is aware that the section of the Idaho Code

Idaho Code Ann. § 67-5908.

10

limitations, he may have to seek whatever relief he may be

11

entitled to receive elsewhere.

12

IT IS THEREFORE ORDERED that:

13

(1) Plaintiff’s motion to amend the Complaint be, and

14
15
16
17

the same hereby is, DENIED;
(2) Plaintiff’s motion to modify the case management
order be, and the same hereby is, DENIED; and
(3) Defendant’s motion for summary judgment be, and the

18

same hereby is, GRANTED.

19

DATED: November 3, 2011

20
21
22
23
24
25
26
27
28
16