Erlebach v. RAJ Enterprises of Central Florida et al

Filing 204

ORDER re 196 Response to Motion. Plaintiff's Motion to defer is granted in part. Plaintiff is ordered to respond to the pending motions for summary judgment on or before 08/31/2021. Plaintiff is ordered to complete necessary discovery before that date. Absent extraordinary circumstances, no additional extensions of time for discovery or dispositive motions will be granted. Signed by Judge M. Douglas Harpool. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (mem)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TYRELL CURTIS ERLEBACH,
Plaintiff,

Case No. 1:18-CV-00173-MDH

v.
RAJ ENTERPRISES OF CENTRAL
FLORIDA, LLC, et al.,
Defendants.

ORDER
Before the Court is Plaintiff’s Motion for Relief Pursuant to Fed. R. Civ. P. 56(d). (Doc.
196). Plaintiff requests that this Court defer consideration of Defendants’ renewed motions for
summary judgment for 90 days. All Defendants oppose the Motion. (Docs. 200, 201, 202). For the
reasons set forth herein, the Motion is GRANTED IN PART.
BACKGROUND
In January of 2016, Plaintiff was arrested, and subsequently charged with several felonies
including attempted rape, aggravated battery and felony injury to a child, all occurring in Payette
County. Bail was set at $200,000, and the magistrate at first appearance ordered Plaintiff, as a
condition of bail, not to consume alcoholic beverages. Plaintiff was ordered to report to the
Misdemeanor Probation Office. That office was administered by an individual who had contracted
with the county to provide pretrial services in addition to supervision of misdemeanor
probationers. The contractor’s duties included “supervision duties for persons with pretrial release
conditions as ordered by a judge.” Among the duties agreed upon were to sign up persons on

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pretrial release for alcohol monitoring, monitoring reports of alcohol testing, and reporting “to the
Court of any failed...alcohol tests.” Pretrial monitoring and testing is solely related to the
conditions of bail prior to conviction, and as such are designed to assist the court as to its decisionmaking regarding release on bail. Hence, the contractor engaged in two distinct functions, despite
the title “Misdemeanor Probation Officer.”
On April 20, 2016, the district court issued a bench warrant for the arrest of Plaintiff,
finding that there was probable cause to believe that Plaintiff had violated conditions of pretrial
release. The court further ordered that bail be set in the amount of $30,000 on the bench warrant,
and the court interlineated “or release in 72 hours in jail.” The Payette County booking sheet shows
that Plaintiff was booked into the jail the same day, posted bond, and was out of jail in 25 minutes.
On May 20, 2016, the district court exonerated bond after “being fully apprised of Defendant’s
objection to a positive alcohol test, as a false positive.”
Plaintiff has brought claims against Payette County, individuals serving as its Board of
Commissioners, the Payette County Sheriff’s Office as well as the Payette County Sheriff
individually and the former Payette County Prosecuting Attorney (collectively, “Payette County
Defendants”). The basis for Plaintiff’s lawsuit against the municipality and its decision makers is
(1) negligence, and, (2) 42 U.S.C. § 1983 based upon failure to adequately train and supervise
amounting to deliberate indifference. (Amended Complaint, Doc. 107).
Plaintiff furthermore brought claims against Dennis Stokes, an employee of Indianhead
Resources, LLC, which contracts with Payette County as an independent contractor to provide
misdemeanor probation services for the County. Plaintiff brings a negligence claim and a 42
U.S.C. § 1983 claim against Stokes.

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Lastly, Plaintiff brings suit against K & K Treatment; Rostad GPS & Monitoring Services,
LLC; Kim Rostad, d.b.a. K & K Treatment; K & K Bail Bonds, LLC, d.b.a. K & K Treatment
(collectively, “Rostad Defendants”) alleging negligence only.
Plaintiff requests judgment in the amount of $1,000,000 or such greater amount as may be
proven for economic and non-economic damages and punitive damages in the amount of
$3,000,000.
The following timeline reflects the proceedings in this action:


April 18, 2018, the Complaint is filed.



September 17, 2018, the Court issued Case Management Order. (Doc. 55). The Case
Management Order provided deadline for filing dispositive motions was March 28, 2019.
The Case Management Order allowed the Plaintiff approximately months in which to
complete his discovery of the facts.



October 23, 2018, (Doc. 78) Discovery Plan was agreed upon by the parties, which
contained the same discovery deadlines as specified in the Case Management Order. The
parties agreed that the fact discovery would be completed by August 30, 2019,
approximately sixteen (16) months after the Complaint was filed.



December 18, 2018, Defendant Stokes’ deposition taken.



January 10, 2019, Plaintiff’s counsel moved to stay this matter on the grounds that criminal
charges may be asserted against Defendant Johnson and Defendant Laney. (Docs. 116,
117).



February 4, 2019, Court granted the Stay and indicated that said Stay expired on May 6,
2019. (Doc. 126) The basis for said continuance/stay was that Defendant Laney and
Defendant Johnson might be subject to criminal charges and are/were key witnesses and
their deposition needed be taken.



May 6, 2019—January 3, 2021, the parties had an ongoing dispute to whether the Stay was
in effect or not after May 2019. During said time period, Plaintiff objected and opposed all
efforts to move this case forward on the grounds that the Stay was in effect. (See Docs.
117, 120, 133, 148, 167, and 168).



September 24, 2019, believing the Stay had expired, Defendant Stokes, filed a Motion for

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Summary Judgment seeking to be dismissed from this litigation. (The other Defendants
also filed similar Motions for Summary Judgment.) The Plaintiff never responded to
Defendant Stokes’ Motion for Summary Judgment (or any of the other pending motions
for summary judgment.)


January 4, 2021, this Court lifted the Stay and suggested timelines for the parties proceed
forward. The Court also denied all of the Defendants’ pending Motions for Summary
Judgment, without prejudice, that such motions could be refiled.



March 15, 2021, Plaintiff takes the deposition of Toby Hauntz, from Payette County.



March 26, 2021, Plaintiff takes the deposition of Kim Rostad.



March 29, 2021, Plaintiff dismissed Defendant Laney from this litigation (without taking
his deposition.) (Doc. 186). Plaintiff’s counsel also indicates that Defendant Johnson may
also be dismissed in the near future. (Doc. 187).



April 14, 2021, after giving Plaintiff approximately 3.5 months to conduct whatever
depositions Plaintiff deemed appropriate, Defendant Stokes filed his renewed Motion for
Summary Judgment.



April 15, 2021, the Court issued an Order Amending Case Management Order. (Doc 192).
Said Order acknowledges that the parties were aware of the fact that the Stay was lifted on
January 2021, and thus Plaintiff has had more than five months to conduct discovery as of
this order.
On May 21, 2021, Plaintiff filed a motion to defer consideration of the Defendants’

renewed motions for summary judgment “pending the completion of discovery” in this case. (Doc.
197). Plaintiff’s subsequent Affidavit asks for an additional 90 days specifically to obtain an
affidavit from Judge Brian Lee or take his deposition. (Doc. 203 at 3-4).
STANDARD
Rule 56(d) of the Federal Rules of Civil Procedure authorizes the Court to grant relief in
situations in which a litigant opposing a motion for summary judgment has not had sufficient
time to develop or discover evidence to oppose the motion. The rule states:

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If 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).
Rule 56 was amended in 2010, which, among other things, resulted in the redesignation of
the Rule's various subdivisions. Prior to the 2010 amendments, Rule 56(f) governed the deferral
of a motion for summary judgment until the nonmoving party was afforded time to conduct
discovery. According to the Advisory Committee Notes to the 2010 Amendments, “[s]ubdivision
(d) carries forward without substantial change the provisions of former subdivision (f).” Thus, the
case law interpreting Rule 56(f) remains applicable to the amended rule. See, Burch v. Smathers,
No. 3:12-CV-00632-CWD, 2013 WL 12136802, at *2 (D. Idaho May 15, 2013)
The Court previously has recognized that “[i]t is generally the rule in the Ninth Circuit that
where a summary judgment motion is filed so early in the litigation that a party has not had any
realistic opportunity to pursue discovery relating to its theory of the case, district courts should
freely grant a Rule 56(f) motion.” Mangum v. Action Collection Serv. Inc., 4:04-cv-507-BLW,
2006 WL 2224067 *2 (Dist. Idaho Aug. 2, 2006) (citing Burlington Northern Santa Fe R.R. Co.
v. Assiniboine and Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003).
“In essence, district courts are expected to generously grant Rule 56(f) motions as a matter of
course when dealing with litigants who have not had sufficient time to develop affirmative
evidence.” Id. Burch, No. 3:12-CV-00632-CWD, at *3.

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Motions under Rule 56(d), however, should not be granted when the party seeking relief
has failed to diligently pursue discovery of the evidence. Mangum, 2006 WL 2224067 at *3
(citing Qualls v. Blue Cross, 22 F.3d 839, 844 (9th Cir. 1994)). To obtain relief under Rule 56(d),
litigants must establish three factors: “(1) that they have set forth in affidavit form the specific
facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that
these sought after facts are essential to resist the summary judgment motion.” State v. Campbell,
138 F.3d 772, 779 (9th Cir. 1998). “Failure to comply with these requirements ‘is a proper ground
for denying discovery and proceeding to summary judgment.’ ” Family Home and Fin. Ctr., Inc.
v. Fed. Home Loan Mortgage Corp., 525 F.3d 822, 827 (9th Cir. 2008) (quoting Campbell, 138
F3d. at 779). Burch, No. 3:12-CV-00632-CWD, at *3.
DISCUSSION
Plaintiff argues in his initial Declaration (Doc. 197) that it is necessary to take follow up
depositions of several defendants. However, Plaintiff’s subsequent Affidavit in response to
Defendats’ objections specifies that Plaintiff is requesting the Court to allow Plaintiff 90 days to
obtain an affidavit or take the deposition of Judge Brian Lee specifically. Plaintiff states in his
Declaration:
It is apparent from the deposition testimony of Defendant Stokes (Indianhead
Resources, LLC), Defendant Rostad (Rostad GPS & Monitoring), and (Payette
County’s 30(b)(6) designee) that no one involved in the arrest of the Plaintiff based
on a demonstrably false-positive urine sample test for alcohol/drugs has an
understanding of the scientific standards applicable to such tests to allow them to
either order the appropriate analysis of urine samples, or to interpret the reports that
they received from the various laboratories to which pretrial detainees’ (including
the Plaintiff’s) urine sample were sent for analysis….
Nevertheless, the Defendants all rely on the proposition that the tests were
administered, analyzed, and reported as ordered by Payette County Brian D. Lee…
Judge Brian D. Lee apparently instituted a “color call” system for contacting
probationers/pretrial detainees to require them to report for the collection of urine

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sample. There is no evidence that Judge Brian D. Lee ever advised anyone
regarding any procedures or scientific standards to be followed concerning
drug/alcohol testing analyses….
I have attempted to contact Judge Brian D. Lee to arrange for his deposition to be
taken, but I have not been able to reach him thus far…
I have attempted to arrange to take the deposition of a critical witness, Mandy
Loughran, who worked for Payette County as a Deputy Sherrif. Ms. Loughran
managed the probationer/pretrial detainee drug/alcohol testing prior to Payette
County entering into its contract with Indianhead Resources, Inc….
It appears from depositions taken thus far in this case that [defendants either had no
policy or practice regarding training and supervision of those responsible for
drug/alcohol testing…did not concern [themselves] with the reliability of urine
sample analyses, [or] did not concern [themselves] with the scientific standards
necessary for…reliable analysis].
In summary, Plaintiff claims in his subsequent Affidavit:
Each of the testifying defendants (Rostad, Stokes, and Payette County) attempts by
inference to shift the blame for the wrongful arrest of the Plaintiff on Payette
County (Idaho) Magistrate Brian D. Lee based upon a misinterpretation (or lack of
interpretation) of the report of the analysis of Plaintiff’s April 14, 2016, courtordered urine sample. Based on hearsay, these Defendants suggest that Judge Lee
was responsible for and did, in fact, take responsibility for training and supervision
them concerning the scientific standards and procedures required to result in the
reliable analysis of urine samples. Each witness’s testimony contains suggestions
that Payette County’s and their contractors’ lack of appropriate training,
supervision, policies, and procedures resulting in the unwarranted arrest and
incarceration of the Plaintiff based on his false-positive drug/alcohol urine test
analyses is the result of procedures that were ordered by Judge Brian Lee, a
magistrate in Payette County Idaho…
To oppose defendants’ motions for summary judgment Plaintiff needs to obtain an
affidavit from Judge Lee or take his deposition. Plaintiff’s counsel has contacted
Judge Lee’s office on numerous times by phone and by email to arrange his
deposition or obtain his affidavit. Thus far, he has not returned either my calls or
my emails. (citations to Exhibits omitted).
Plaintiff alleges that since the March depositions, counsel has been involved in a number
of activities that has hampered his ability to take follow-up depositions, including personal
litigation, moving out of his personal residence, other cases, and out-of-state travel. He also states

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that it is challenging to set depositions in this case because of the number of counsel involved.
Lastly, he claims that Judge Lee “declines to have contact with Plaintiff’s Counsel.” (Doc. 203 at
4).
Looking to the text of Fed. R. Civ. P. 56(d), Rostad Defendants argue that Plaintiff has
failed to show (1) the specific facts he hopes to elicit from further discovery; (2) that the facts
sought exist; (3) the sought-after facts are essential to oppose summary judgment; and (4) why this
discovery had not been or could not have been obtained earlier. See Ice Castles, LLC v. LaBelle
Lake Ice Palace, LLC, 409 F.Supp.3d 912, 922 (D.Idaho, 2019), quoting Family Home and Fin.
Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008); and citing Bank of
Am., NT & SA v. Pengwin, 175 F.3d 1109, 1118 (9th Cir. 1999).
All Defendants argue that Plaintiff demonstrated an absence of diligence in conducting
discovery. “We will only find that the district court abused its discretion if the movant diligently
pursued its previous discovery opportunities, and if the movant can show how allowing additional
discovery would have precluded summary judgment.” Byrd v. Guess, 137 F.3d 1126, 1135 (9th
Cir.1998) (quotation marks omitted), superseded by statute on other grounds as stated in Hunt v.
County of Orange, 672 F.3d 606, 616 (2012). See also Johnson v. Hewlett-Packard Co., 546
Fed.Appx. 613 (9th Cir. 2013) (Denial of requests for additional discovery prior to ruling on
defendant's motion for summary judgment was not abuse of discretion, where plaintiffs failed to
demonstrate diligence by filing supporting affidavit, plaintiffs merely stated in conclusory terms
that more discovery would show they were harmed, and requests were made a year and a half after
complaint was filed).
Defendant Stokes represents that “Plaintiff has created his own problem,” and that “this
case has languished in large part because of Plaintiff’s failure to conduct discovery.” (Doc. 200 at

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5). In total, Plaintiff has only taken three depositions during the last three years. The complaint in
this matter was first filed in April of 2018. Initial disclosures and written discovery had been filed
by the end of that year. There was nothing preventing Plaintiff from deposing County witnesses,
replying to the summary judgment motion, or seeking clarification from the court as to how to
proceed once the stay had been lifted. Once the stay was formally lifted, nothing prevented the
Plaintiff from deposing Judge Lee or former Sheriff Huff.
A motion pursuant Rule 56(d) must identify the information would be obtained from said
discovery in order oppose the pending motion for summary judgment. In Choi v. Reed Institute,
822 Fed. Appx 572 Cir. 2020, the Court held that the District Court did not abuse its discretion in
denying Choi’s Rule 56(d) Motion. Id. (citing Stevens v. Corelogic, Inc., 899 F.3d 666, 677 (9th
Cir. 2018) (noting standard review for implicit denials Rule 56(d) motions depends on whether the
information requested was relevant.)) The Choi Court also relied upon the case Tatum v. City Cnty.
of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (finding no abuse discretion when did not
satisfy the requirements what was then Rule 56(f)). The Choi Court stated, “Again, Choi did not
comply with the Rule’s requirements. Neither his counsel’s affirmation nor the memorandum law
in support the motion identified “specific facts” that would have helped Choi avoid summary
judgment.” Choi, supra, at 574-575.
In this case, Plaintiff’s identification of facts that would be obtained from Judge Lee’s
affidavit or deposition is notably minimal. While Plaintiff in his Declaration identifies his
impressions or interpretations of the few depositions taken, he generally does not point to any
specific factual information that could be used to oppose any of the Defendants’ pending motions
for summary judgment. Plaintiff mostly notes that he believes that Defendants generally lacked
the scientific standards for reliable positive results from urine sampling, lacked policies or

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practices with respect to training or supervision, or had no concern with respect to obtaining
reliable results. (See Doc. 197 at 6). However, Plaintiff’s subsequent Affidavit suggests that Judge
Lee may be able to attest to whether or not Defendants were involved in the sampling process at
issue, the level of potential involvement of Defendants, and consequently whether or not
Defendants may be held liable in this action. Such information is integral to Plaintiff’s case.
Another consideration is whether a movant can show how allowing additional discovery
will preclude summary judgment. California Union Ins. v. American Diversified Savings Bank,
914 F.2d 1271, 1278 (9th Cir.1990), cert. denied, 498 U.S. 1088, 111 S.Ct. 966, 112 L.Ed.2d 1052
(1991). Payette County Defendants asserts that Plaintiff’s claims against it boil down to the notion
that the county officials are responsible for the actions of several private persons and companies
in the taking of a urine sample from Plaintiff, interpreting that sample and providing information
to the court about that sample. Payette County argues that Plaintiff’s counsel was told that the
County is not liable and has no authority to supervise an independent contractor that oversees
pretrial defendants for the court system. Thus, the County opposes Plaintiff’s current motion “to
defer the case even longer to depose individuals that the Payette County Defendants have
repeatedly stated simply have no information relevant to this case.” (Doc. 201 at 6). Again, the
information sought by Plaintiff as to the magistrate judge’s involvement—and thereby Defendants’
alleged involvement—is relevant to Plaintiff’s legal theory and could be used to oppose summary
judgment.
CONCLUSION
For the reasons set forth in this order, Plaintiff’s Motion for Relief Pursuant to Fed. R. Civ.
P. 56(d) is GRANTED IN PART. Plaintiff is ordered to respond to the pending motions for
summary judgment on or before August 31, 2021. Plaintiff should complete all necessary

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discovery prior to that date. Absent extraordinary circumstances, no further extension of time for
discovery or dispositive motions will be granted.

IT IS SO ORDERED.
Dated: June 30, 2021

/s/ Douglas Harpool______
DOUGLAS HARPOOL
United States District Judge

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