BOIMAH FLOMO et al v. BRIDGESTONE AMERICAS HOLDING, INC., et al

Filing 234

ORDER re: 231 Motion in the Alternative to Defer Summary Judgment Pursuant to Rule 56 (f). The court extends for another 120 days (to October 9, 2009) the time for plaintiffs to file a complete response to the pending motion for summary judgment. The court strikes plaintiffs' initial response to the motion for summary judgment (dkt. 229). Plaintiffs will need to file one complete response after completing the additional discovery. Defendants' time to file any reply materials will not run until plaintiffs file their complete response to motion for summary judgment. Signed by Judge David Frank Hamilton on 6/11/2009. (LBK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION JOHN ROES 1-12, SAAH FORYOR, JR., ABRAHAM FORYOR, ANDREW FAYIAH, JOHNNY MYCIAGA, AARON KOLLIE, JR., DANIEL FLOMO, BOIMAH FLOMO, SAAH LEAYON, TAMBA LEAYON, JR., ALEX VARNIE, SAMUEL VARNIE, JOHN KERKULA, SAMUEL THOMAS, JOSHUA THOMAS, ELIJAH PETER, MARTU FAYIAH, JANNABA FALLAH, DORIS FALLAH, BENDU DOLO, MARTHA KOLLIE, REBECCA KOLLIE, NYAMAH FLOMO, and PRINCESS VARNIE, Plaintiffs, v. BRIDGESTONE AMERICAS HOLDING INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:06-cv-0627-DFH-JMS ) ) ) ) ) ) ) ) ) )

ORDER ON PLAINTIFFS' ALTERNATIVE MOTION TO DEFER SUMMARY JUDGMENT RULING Defendants have moved for judgment on the pleadings and/or for summary judgment on the remaining claims against them. The defendants have submitted extensive evidentiary materials beyond the pleadings. (Some of their legal

arguments might be addressed based solely on the pleadings, but they are closely related to issues the court has already considered). Plaintiffs have filed opposition papers supported by extensive evidence. Plaintiffs have filed at the same time an alternative motion to defer ruling on the summary judgment motion pursuant to

Rule 56(f) of the Federal Rules of Civil Procedure. (Dkt. No. 231.) Plaintiffs say they believe they have presented enough evidence to deny summary judgment, but they also assert that they have not had the opportunity to take some discovery that may be relevant to the summary judgment motion. "If," plaintiffs write, "the Court concludes that Plaintiffs must show that Firestone acted under `color of law,' and it also determines that Plaintiffs have insufficient evidence to survive summary judgment on this point, Plaintiffs move the Court to defer its summary judgment ruling until Plaintiffs have had the opportunity to conduct the appropriate discovery." Id. at 2. Plaintiffs have supported their Rule 56(f) motion with the required affidavit from counsel.

The defendants' motion makes some purely legal arguments that might be addressed solely on the basis of the pleadings, but also seeks summary judgment based on extensive factual materials. Because the purely legal arguments are closely related to matters the court has already considered, and because the factually-based arguments are substantial, the court will treat the entire motion as one for summary judgment. See Fed. R. Civ. P. 12(d).

The problem with plaintiffs' alternative motion is its conditional nature. If the court were to accept plaintiffs' invitation, and especially if the court allowed similar tactics in other cases, the practical effect would be nearly to double the court's summary judgment workload and the expense of summary judgment practice in this court. Plaintiffs invite the court to consider the current summary -2-

judgment record (supplemented by any further reply brief and possible surreply brief) and to issue what might well be only an advisory opinion. If that opinion were in favor of granting the motion, it would have to be followed by further discovery and a second "real" decision. This device would require the parties to brief twice, and the court to decide twice, usually months apart, many grants of summary judgment. This is not an appropriate way to manage litigation.

The court will consider one, and only one, response to defendants' motion for summary judgment. To address plaintiffs' concerns, and in light of the

unusual obstacles to discovery in this case, the court takes the following actions in response to plaintiffs' alternative motion. First, the court extends for another 120 days (to October 9, 2009) the time for plaintiffs to file a complete response to the pending motion for summary judgment. With the direction that Magistrate Judge Stinson can provide, that delay should allow adequate time to take any additional discovery that is needed and to prepare a complete response. Second, the court hereby strikes plaintiffs' initial response to the motion for summary judgment (Dkt. No. 229). Plaintiffs will need to file one complete response after completing the additional discovery. (The court does not strike Docket No. 230, plaintiffs' evidentiary appendix in response to the motion for summary judgment.) Third, defendants' time to file any reply materials will not run until plaintiffs file their complete response to the motion for summary judgment.

So ordered. -3-

Date: June 11, 2009 DAVID F. HAMILTON, CHIEF JUDGE United States District Court Southern District of Indiana Copies to: Nicole N. Auerbach THE VALOREM LAW GROUP [e-mail] Terrence P. Collingsworth CONRAD & SCHERER [e-mail] Katie J. Colopy JONES DAY [e-mail] C. Christopher Groves JONES DAY [e-mail] Paul L. Hoffman SCHONBRUN DESIMONE SEPLOW HARRIS & HOFFMAN 723 Ocean Front Walk Suite 100 Venice, CA 90291 Kimberly Denise Jeselskis MACEY SWANSON AND ALLMAN [e-mail]

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Virginia Kim THE VALOREM GROUP, LLC 35 East Wacker Drive, Suite 2900 Chicago, IL 60601 Patrick J. Lamb THE VALOREM LAW GROUP, LLC [e-mail] Christian Alexandra Levesque CONRAD & SCHERER [e-mail] Barry A. Macey MACEY SWANSON AND ALLMAN [e-mail] Nora L. Macey MACEY SWANSON AND ALLMAN [e-mail] Mark J. R. Merkle KRIEG DEVAULT LLP [e-mail] Robert A. Mittelstaedt JONES DAY [e-mail] Marc T. Quigley KRIEG DEVAULT LLP [e-mail] Thomas A. Rector JONES DAY [e-mail] Michael L. Rice JONES DAY [e-mail] Mark D. Sayre THE VALOREM LAW GROUP LLC [e-mail]

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Benjamin Schonbrun SCHONBRUN DeSIMONE SEPLOW HARRIS & HOFFMAN, LLP [e-mail] Natacha Thys CONRAD & SCHERER [e-mail] Hugh J. Totten THE VALOREM LAW GROUP [e-mail]

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