Catipovic v. Turley et al

Filing 81

MEMORANDUM OPINION AND ORDER: Granting 77 Motion to Continue Summary Judgment Proceedings RE: 68 Motion for Summary Judgment: Plaintiff Catipovic's Response ddl 11/22/2013. Signed by Judge Mark W Bennett on 08/28/13. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
BRANIMIR CATIPOVIC,
No. C 11-3074-MWB
Plaintiff,
vs.
MARK TURLEY, RONALD FAGEN,
and FAGEN, INC.,
Defendants.

MEMORANDUM OPINION AND
ORDER REGARDING PLAINTIFF’S
MOTION FOR CONTINUANCE OF
SUMMARY JUDGMENT
PROCEEDINGS

___________________________
This case is before me on plaintiff Catipovic’s August 23, 2013, Motion For
Continuance Of Summary Judgment Proceedings (docket no. 77).

In his Motion,

Catipovic seeks an indefinite continuance, pursuant to Rule 56(d) (formerly 56(f)) of
the Federal Rules of Civil Procedure and Local Rule 56(h) of the Northern District of
Iowa, of his August 29, 2013, deadline to resist defendant Turley’s Motion For
Summary Judgment (docket no. 68).1 In support of his Motion, Catipovic asserts that,

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By Order (docket no. 76), filed August 23, 2013, I denied Catipovic’s August
21, 2013, Motion For Extension Of Summary Judgment Resistance Deadline (docket
no. 74), because I concluded that motion was not in the nature of a routine request for a
brief extension of a deadline for good cause, within the meaning of Local Rule 7(k), but
a request for an extension of time to respond to a summary judgment motion in order to
complete further discovery, but that it did not comply with the requirements of either
Rule 56(d) of the Federal Rules of Civil Procedure or Local Rule 56(h). I denied
Catipovic’s August 21, 2013, Motion, without prejudice to refiling in compliance with
Rule 56(d) of the Federal Rules of Civil Procedure and Local Rule 56(h), stating that, if
refiled not later than August 27, 2013, a motion in compliance with these rules would
be deemed timely filed, notwithstanding the deadline for such motions in Local Rule
56(h). Catipovic has now refiled his request for an extension of his deadline to resist

owing to the failure of the parties to reach agreement on when and where defendant
Turley, witness Chris McHugh, and others living in Europe, could be deposed, and the
necessity of litigating that issue, the pertinent depositions could not be scheduled until
September 3-5, 2013. An attached affidavit by Catipovic’s counsel identifies more
specifically the depositions in question, the issues to be addressed, and how counsel
believes those depositions are likely to raise genuine issues of material fact in response
to Turley’s Motion For Summary Judgment. Catipovic observes that, knowing that the
depositions in question could not be scheduled until September, Turley filed his Motion
For Summary judgment well before the October 25, 2013, deadline for completion of
discovery and well before the November 22, 2013, deadline for dispositive motions,
and now seeks to preclude necessary discovery to address his premature Motion For
Summary Judgment.

In the alternative, Catipovic argues that his counsel has a

particularly heavy discovery and trial schedule in August, September, and early
October 2013, in unrelated matters, which justifies an extension of his deadline to
respond to Turley’s Motion For Summary Judgment on “good cause” grounds.
In a Resistance (docket no. 79), filed August 27, 2013, by the accelerated
deadline that I set by Order (docket no. 78), Turley asserts that no continuance of
Catipovic’s deadline should be granted, because Catipovic’s counsel’s affidavit
inadequately identifies how the evidence that he asserts he has not yet been able to
obtain can reasonably be expected to raise genuine issues of material fact relevant to the
summary judgment motion. Turley argues that Catipovic already has access to his own
deposition and the deposition of his colleague, Mr. Wendland, so that he does not need
the depositions of Turley, McHugh, or others to address the legal and factual issues
raised in Turley’s Motion For Summary Judgment—indeed, Turley argues that he is
entitled to summary judgment, even if the court were to accept Catipovic’s version of
the facts as true. Turley also points out that the parties have now exchanged thousands
Turley’s Motion For Summary Judgment, purportedly in compliance with the
applicable rules.
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of pages of documents concerning the matters at issue in his Motion For Summary
Judgment.

Turley argues that a mere declaration by counsel that materials sought

might raise genuine issues of material fact is not enough.
In a Reply (docket no. 80), filed August 27, 2013, Catipovic argues that Turley
should not now be permitted to prevent him from completing discovery to which he is
entitled to respond to Turley’s Motion For Summary Judgment, owing to the delays in
pertinent depositions known to Turley at the time that Turley filed his Motion, well
before the discovery and dispositive motions deadlines. He reiterates that his counsel
has identified issues on which further discovery may raise genuine issues of material
fact, noting where and how Turley has raised or disputed these issues. He also asserts
that granting a continuance to complete discovery will not unduly delay the case or
prejudice any party.
I recently explained in Community Voice, L.L.C. v. Great Lakes Commc’n
Corp., No. C 12–4048–MWB, 2012 WL 3043064 (N.D. Iowa July 25, 2012), that
[Rule 56(d) (formerly Rule 56(f)) of the Federal Rules of
Civil Procedure] provides an extension of time in which to
respond to a summary judgment motion in order to complete
further discovery. Marksmeier v. Davie, 622 F.3d 896, 903
(8th Cir. 2010). This rule facilitates the principle that
“‘summary judgment is proper only after the nonmovant has
had adequate time for discovery.’” Ray v. American
Airlines, Inc., 609 F.3d 917, 923 (8th Cir. 2010) (quoting In
re TMJ Litig., 113 F.3d 1484, 1490 (8th Cir. 1997)).
As the Eighth Circuit Court of Appeals explained,
We review a district court’s denial of a motion filed
under Rule 56(f) [now 56(d) ] for abuse of discretion.
See Elnashar v. Speedway SuperAmerica, LLC, 484
F.3d 1046, 1054 (8th Cir.2007). “Under Rule 56(f)
[now 56(d)], a party opposing summary judgment
may ‘seek a continuance and postpone a summary
judgment decision,’ but ‘the party opposing summary
judgment is required to file an affidavit with the
district court showing what specific facts further
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discovery might uncover.’” Anuforo v. C.I.R., 614
F.3d 799, 808 (8th Cir. 2010) (quoting Roark v. City
of Hazen, 189 F.3d 758, 762 (8th Cir.1999)).
Marksmeier, 622 F.3d at 903; see also Ray, 609 F.3d at 923
(“To obtain a Rule 56(f) [now 56(d) ] continuance, the party
opposing summary judgment must file an affidavit
‘affirmatively demonstrating ... how postponement of a
ruling on the motion will enable him, by discovery or other
means, to rebut the movant's showing of the absence of a
genuine issue of fact.’” (quoting Humphreys v. Roche
Biomedical Lab., Inc., 990 F.2d 1078, 1081 (8th Cir.
1993)). Where an affidavit offered in support of a Rule
56(d) motion fails to meet the rule's requirements, the
district court does not abuse its discretion in denying the
motion for an extension of time to conduct further
discovery. Id. A Rule 56(d) motion may also be denied, if
the additional information that the movant claims it must
discover is not relevant to the opposing party's grounds for
summary judgment. Ray, 609 F.3d at 923.
Community Voice, L.L.C., 2012 WL 3043064 at *1-*2.
As in Community Voice, there is some merit to Turley’s arguments that further
discovery may not be required in this case, because much of the information that
Catipovic seeks from further discovery is already known to Catipovic from other
discovery and his own knowledge. Id. at *2. On the other hand, also as in Community
Voice, there is some merit to Catipovic’s argument that his supporting brief and the
affidavit of his counsel do outline factual disputes on which Catipovic has never
obtained

deposition

testimony

from

principal

actors

and

witnesses.

Id.

Notwithstanding Turley’s objections, I believe that Catipovic’s counsel has adequately
identified both the issues and the deponents that may shed light on those issues, as well
as the reasons that the additional discovery may generate genuine issues of material fact
on relevant issues. Certainly, Catipovic has the better argument that the timing of
Turley’s Motion For Summary Judgment, well before the discovery deadline and the
dispositive motion deadline, and Turley’s attempts to prevent Catipovic from now
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obtaining discovery that he asserts is necessary, smacks more of gamesmanship than
legitimate complaints that Catipovic has unduly delayed the taking of pertinent
discovery, particularly in the absence of any argument about—let alone any hint of—
prejudice to Turley. Moreover, Catipovic’s counsel has raised legitimate “good cause”
grounds for an extension of the summary judgment resistance deadline—grounds that a
reasonable opponent might have respected. Thus, Turley’s position also smacks more
of a lack of professional courtesy than any concern that Turley will be prejudiced by a
reasonable delay. I find this dispute surprising, where all of the attorneys involved on
both sides are highly regarded Iowa lawyers. I expect—and all too often get—such
disputes from big, out-of-state law firms, but such disputes among Iowa attorneys are,
thankfully, quite rare.
Under the circumstances, I find that Catipovic should be granted additional time
to respond to Turley’s Motion For Summary Judgment. I do not find it necessary to
deny Turley’s Motion For Summary Judgment without prejudice, as I did in Community
Voice. See 2012 WL 3043064 at *2. Rather, a continuance of Catipovic’s deadline to
respond to Turley’s Motion For Summary Judgment, to the existing deadline for
dispositive motions, seems to me to be the appropriate course here.
THEREFORE, plaintiff Catipovic’s August 23, 2013, Motion For Continuance
Of Summary Judgment Proceedings (docket no. 77) is granted, and Catipovic shall
have to and including November 22, 2013, within which to respond to Turley’s
Motion For Summary Judgment (docket no. 68).
IT IS SO ORDERED.
DATED this 28th day of August, 2013.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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