Snyder v. Livingston et al

Filing 37

OPINION AND ORDER GRANTING 31 MOTION for Extension of Time to File Response. Defendants have to/including 2/6/12 to respond to discovery requests that pltf Snyder propounded on 12/12 and 12/20/11. Pltf Snyder has to/including 2/21/12 to file response to dfts' summary judgment motion. Signed by Magistrate Judge Roger B Cosbey on 1/5/12. (jcp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

HOPE L. SNYDER,
Plaintiff,
v.
D. ANNE LIVINGSTON, et al.,
Defendants.

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CAUSE NO. 1:11-cv-77

OPINION and ORDER
Before the Court is a renewed motion for extension of time filed by Plaintiff Hope
Snyder on December 20, 2011. (Docket # 31.) In her motion, Snyder renews her prior request
for additional time within which to perform discovery before responding to Defendants’
summary judgment motion (Docket # 25), which the Court denied on December 7, 2011 (Docket
# 30). Defendants filed an objection to Snyder’s renewed motion, and Snyder timely replied
(Docket # 32, 33); therefore, the motion is now fully briefed.
For the following reasons, Snyder’s renewed motion for extension of time will be
GRANTED.
A. Factual and Procedural Background
On February 28, 2011, Snyder filed this action against her former employer, Ear, Nose &
Throat Associates, P.C., and one of its employees, alleging that they discriminated against her on
the basis of a disability and then retaliated against her for complaining about discriminatory
treatment. (Docket # 1, 22.) A state law defamation claim also exists. (Docket # 22.) A
scheduling conference was held on June 14, 2011, at which a discovery deadline of February 5,

2012, and a dispositive motion deadline of March 5, 2012, were established. (Docket # 16.)
After taking Snyder’s deposition, Defendants filed a motion for summary judgment on
November 4, 2011. (Docket # 18.) On December 2, 2011, the date her response to the motion
was due, Snyder filed her first motion to extend the due date for her response until March 6,
2012, that is, thirty days after the close of discovery. (Docket # 25.) After a hearing on the
motion, the Court denied Snyder’s motion because she failed to submit a supporting affidavit or
declaration to identify what evidence she hoped to learn through the discovery. (Docket # 27,
30.) The Court also observed that Snyder appeared dilatory by failing to perform any discovery
during the first five months of the discovery period. (Docket # 30.) In an effort to address
Defendants’ motion for summary judgment on the merits, however, the Court afforded Snyder
until December 22, 2011, to respond to Defendants’ motion.
On December 12, 2011, Snyder propounded her first set of interrogatories, request for
production of documents, and request for admissions to Defendants. (Pl.’s Renewed Mot. ¶ 3,
Ex. B.) She then submitted a second set of interrogatories to Defendants on December 20, 2011.
(Pl.’s Renewed Mot. ¶ 3, Ex. B.) On that same day, Snyder filed the instant motion, requesting
that the deadline for her response to Defendants’ motion for summary judgment be extended by
an additional thirty-three days, that is, until January 23, 2012. (Docket # 31.) She explains that
this extension will afford her sufficient time to receive and review Defendants’ responses to her
pending discovery requests.1 (Docket # 31.) This time, Snyder attached an affidavit in support of
her motion. (Pl.’s Renewed Mot. ¶ 2, Ex. A.)
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On January 4, 2012, Defendants sought an extension of time to respond to Snyder’s discovery requests
(Docket # 34), which the Court promptly granted (Docket # 35). As a result, Defendants have been relieved of any
obligation to respond to Snyder’s discovery requests until the Court either rules on the instant renewed motion for an
extension or the pending summary judgment motion. (Docket # 35.)

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B. Applicable Legal Standard
Federal Rule of Civil Procedure 56(d), restyled without substantial change from the
former Rule 56(f), provides that a summary judgment motion may be continued if the
non-movant has not had an opportunity to take adequate discovery. See Deere & Co. v. Ohio
Gear, 462 F.3d 701, 706 (7th Cir. 2006); Woods v. City of Chicago, 234 F.3d 979, 990 (7th Cir.
2001). The Seventh Circuit Court of Appeals requires a party seeking the protection of Rule
56(d) to make a good faith showing that she cannot present facts essential to justify her
opposition to the movant’s summary judgment motion. Kalis v. Colgate-Palmolive Co., 231 F.3d
1049, 1058 n.5 (7th Cir. 2000); Yessenow v. Hudson, No. 2:08-cv-353, 2011 WL 3667488, at *2
(N.D. Ind. Aug 22, 2011).
This requires the filing of an affidavit or declaration by the non-movant, articulating the
reasons why she is unable to submit the necessary material to the court. Fed. R. Civ. P. 56(d);
Deere, 462 F.3d at 706; Kalis, 231 F.3d at 1058 n.5; Yessenow, 2011 WL 3667488, at *2. The
non-movant must also identify the material facts that she anticipates discovering. Larsen v. Elk
Grove Vill., Ill., 433 F. App’x 470, 472 (7th Cir. 2011) (unpublished); Yessenow, 2011 WL
3667488, at *2. Additionally, a plaintiff must show that she has not been dilatory in pursuing
discovery. Kalis, 231 F.3d at 1058 n.5; Yessenow, 2011 WL 3667488, at *2.
C. Analysis
As in her first motion seeking an extension, Snyder explains in her renewed motion that
“[d]iscovery has not been completed in [this] case, and until completion, [she] will not be in a
position to fully respond to the Defendants’ Motion for Summary Judgment.” (Pl.’s Renewed
Mot. ¶ 2.) In contrast to her first motion, however, Snyder now explains what information she

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seeks to obtain through her written discovery requests, supporting her request with an affidavit
from her attorney.
Specifically, Snyder states that she expects to obtain evidence of “communications” by
Defendants that indicate, among other things, that Defendants (1) viewed her as disabled from a
medical or psychological condition that caused her to be “mentally unstable,” and (2) repeated
false, damaging statements about her mental status and her ability to do her job. (Pl.’s Renewed
Mot. ¶ 2; Smith Aff. ¶¶ 4, 6.) Therefore, Snyder has identified the material facts that she
anticipates discovering. See, e.g., Miller v. Account Mgmt. Servs., No. 1:07-cv-231, 2008 WL
596011, at *1 (N.D. Ind. Feb. 29, 2008).
Furthermore, Snyder emphasizes that these “communications” are in the “sole
possession” of Defendants, and, consequently, that she needs, at a minimum, Defendants’
response to her first set of discovery requests in order to respond to the summary judgment
motion. (Pl.’s Renewed Mot. ¶ 2; Smith Aff. ¶ 6.) Thus, Snyder, through her attorney’s
affidavit, has articulated the reason why she is unable to submit the necessary material to the
court without obtaining Defendants’ discovery responses. See, e.g., Miller, 2008 WL 596011, at
*1.
Nevertheless, to succeed on a Rule 56(d) motion, a plaintiff must also show that she has
not been dilatory in pursuing discovery. Of course, as this Court noted in its Order denying
Snyder’s first motion for an extension, Snyder has appeared dilatory, at least to some extent,
considering that she did not complete any discovery during the first five months of the discovery
period. (Op. and Order dated Dec. 7, 2011, at 4); see, e.g., Ankersen v. Option Care Enters., Inc.,
No. 1:06-cv-905, 2007 WL 1858577, at *1 (S.D. Ind. June 21, 2007) (“Plaintiff’s failure to

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conduct any discovery whatsoever during the first six months of this case may rightly be
described as ‘dilatory.’”).
However, as Snyder emphasizes in her renewed motion, the discovery period does not
close until February 5, 2012, and the dispositive motion deadline is not until March 5, 2011.
(Docket # 16.) Thus, Defendants did indeed file an “early” motion for summary judgment. See,
e.g., Oakley v. Remy Int’l, Inc., No. 1:10-cv-166, 2010 WL 4670613, at *1 (S.D. Ind. Nov. 8,
2010) (granting plaintiff’s request for an extension where defendant filed its summary judgment
motion “well before the . . . discovery deadline”). Therefore, this is not a case where a plaintiff
failed to conduct any discovery during the discovery period and then seeks an extension to the
discovery period. See generally Yessenow, 2011 WL 3667488, at *3 (“[A] court may deny a
Rule 56(d) motion when a party fails to pursue discovery in the allotted time frame.” (emphasis
added)) (collecting cases).
Morever, as a general matter, “[s]ummary 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.’” Chalimoniuk v. Interstate Brands Corp., 172 F. Supp. 2d
1055, 1057-58 (S.D. Ind. 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)).
That is, “when issues material to the outcome of the matter are in question, the full benefit of
discovery is preferable.” Yessenow, 2011 WL 3667488, at *2 (citing Chalimoniuk, 172 F. Supp.
2d at 1059).
Therefore, in an effort to address Defendants’ motion for summary judgment on the
merits, see, e.g., United States v. U.S. Fid. & Guar. Co., No. 2:01-cv-597, 2005 WL 1528374, at
*3 (N.D. Ind. June 24, 2005), and “because the law requires some liberality with respect to Rule

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56[d] motions,” Miller, 2008 WL 596011, at *2 (citing King v. Cooke, 26 F.3d 720, 726 (7th Cir.
1994)), the Court GRANTS Snyder’s renewed motion for an extension. Defendants shall have
up to and including February 6, 2012, to respond to the discovery requests that Snyder
propounded on December 12 and 20, 2011. Snyder shall then have up to and including February
21, 2012, to file her response to Defendants’ summary judgment motion.
SO ORDERED.
Enter for January 5, 2012.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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