Stone et al v. Netzel et al
Filing
103
OPINION entered by Chief Judge Michael P. McCuskey on 1/27/2012. Plaintiff's Motion to Stay Briefing on Defendant Lonnie Netzel's Motion for Summary Judgment and to Require Production of Transcripts 100 is DENIED in part and RESERVED in part. See written opinion. (KM, ilcd)
E-FILED
Friday, 27 January, 2012 02:45:57 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
______________________________________________________________________________
TIMOTHY STONE, as parent and next
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friend of T.S., a minor, et al.,
)
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Plaintiffs,
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v.
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Case No. 10-CV-2011
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LONNIE NETZEL, in his individual and
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official capacity as an employee of the City
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of Kankakee, et al.,
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Defendants.
)
OPINION
This case is before the court for ruling on Plaintiffs’ Motion to Stay Briefing on
Defendant Lonnie Netzel’s Motion for Summary Judgment and to Require Production on
Transcripts Referenced in Netzel’s Motion, or, in the alternative, Motion for an Extension
of Time to Respond to Netzel’s Motion filed in Case Nos. 10-2007, 10-2008, 10-2011, 102024, and 10-2191. Defendant Netzel has filed an identical Response in each case.
MOTION TO STAY BRIEFING
Rule 56(d) of the Federal Rules of Civil Procedure provides, regarding motions for
summary judgment:
When Facts are Unavailable to the Nonmovant.
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.
This rule (formerly Rule 56(f)) “authorizes a district court to refuse to grant a motion for
summary judgment or to continue its ruling on such a motion pending further discovery if
the nonmovant submits an affidavit demonstrating why it cannot yet present facts sufficient
to justify its opposition to the motion.” Woods v. City of Chicago, 234 F.3d 979, 990 (7th
Cir. 2000). The affidavit must outline the reasons for needing further discovery. See Woods,
234 F.3d at 990; see also Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006). The
justification for a continuance “must be genuine and convincing to the court rather than
merely colorable.” Pfeil v. Rogers, 757 F.2d 850, 856-57 (7th Cir. 1985), quoting Robin
Constr. Co. v. United States, 345 F.2d 610, 614 (3d Cir. 1965). “When a party fails to secure
discoverable evidence because of his own lack of due diligence, it is not an abuse of
discretion for the court to refuse to grant a continuance to obtain such information.” Pfeil,
757 F.2d at 857; see also Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1057 n.5 (7th Cir.
2000).
In this case, this court agrees with Defendant Netzel that Plaintiffs have not
adequately shown that additional discovery is necessary, as required by Rule 56(d) of the
Federal Rules of Civil Procedure. Plaintiffs general statements that additional depositions
need to be taken do not include information regarding why the depositions are necessary to
oppose the Motions for Summary Judgment filed by Defendant Netzel and do not adequately
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set out the reasons why the depositions have not been taken during the lengthy time
discovery has been conducted in these cases.
However, summary judgment should not be entered “until the party opposing the
motion has had a fair opportunity to conduct such discovery as may be necessary to meet the
factual basis for the motion.” Grayson v. O’Neill, 308 F.3d 808, 815 (7th Cir. 2002), quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Therefore, this court will allow Plaintiffs
a very limited amount of time, until February 3, 2012, to provide a declaration setting out,
as to each deposition Plaintiffs have stated they intend to take, why they “cannot present facts
essential to justify its opposition” to the Motion for Summary Judgment without the
deposition. Plaintiffs must also set out a specific, detailed explanation regarding why each
deposition has not yet been taken and the amount of time needed to complete the deposition.
This court wants Plaintiffs to know that it will not, under any circumstances, enter an
indefinite stay. Defendant Netzel will be allowed until February 10, 2012, to respond to the
declaration. This court will then rule on the Motion to Stay. If no declaration is filed by
February 3, 2012, the Motion for Stay will be denied and a briefing schedule for the Motions
for Summary Judgment will be set.
MOTION TO REQUIRE PRODUCTION OF TRANSCRIPTS
Plaintiffs also stated that Defendant Netzel filed only excerpts of deposition
transcripts in support of his Motions for Summary Judgment. Plaintiffs asked this court to
order Defendant Netzel to file the complete deposition transcripts or provide the complete
transcripts to Plaintiffs. Defendant Netzel is correct, however, that the use of only excerpts
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of deposition transcripts is allowed. See Hernandez v. Longini, 1998 WL 89302, at *2 (N.D.
Ill. 1998). Local Rule 7.1(D)(1)(b) of the Local Rules of the Central District of Illinois
requires parties to “[i]nclude as exhibits to the motion [for summary judgment] all relevant
documentary evidence” and, therefore, requires only that relevant portions of deposition
transcripts be provided. This court also agrees with Defendant Netzel that he has no
obligation to provide Plaintiffs with copies of the deposition transcripts. Defendant Netzel
is correct that “[i]f Plaintiffs feel the testimony contained in the deposition transcripts is
necessary, Plaintiffs will find the expense of the transcripts to be necessary as well.”
IT IS THEREFORE ORDERED THAT:
(1) Plaintiffs’ Motion to Stay Briefing on Defendant Lonnie Netzel’s Motion for
Summary Judgment and to Require Production of Transcripts Referenced in Netzel’s Motion,
or, in the alternative, for an Extension of Time to Respond to Netzel’s Motion (#100) is
DENIED in part and RESERVED in part.
(2) Plaintiff’s request for deposition transcripts is DENIED.
(3) As far as Plaintiff’s request for a stay, Plaintiff is allowed until February 3, 2012,
to file a declaration setting out specific reasons why each deposition proposed to be taken is
necessary for responding to the Motion for Summary Judgment, detailed reasons why the
deposition has not already been taken, and the amount of time needed to complete the
deposition. Defendant Netzel is allowed until February 10, 2012, to respond to the
declaration. If no declaration is filed by February 3, 2012, Plaintiff’s Motion for a Stay will
be denied and a briefing schedule will be set for the Motion for Summary Judgment.
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ENTERED this 27th day of January, 2012
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE
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