Community Voice Line, LLC v. Great Lakes Communication Corp

Filing 22

ORDER granting 17 Motion to Continue; denying 16 Motion for Summary Judgment without prejudice. See order for details. Signed by Judge Mark W Bennett on 07/25/2012. (Mastalir, Roger)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
COMMUNITY VOICE, L.L.C., a
Maryland Limited Liability Company,
No. C 12-4048-MWB
Plaintiff,
vs.
GREAT LAKES COMMUNICATION
CORP., an Iowa Corporation,

ORDER REGARDING DEFENDANT’S
RULE 56(d) MOTION

Defendant.
___________________________
This case is before me on defendant Great Lakes Communications’ (GLC’s) July
13, 2012, Motion For Denial Or Continuance Of Plaintiff’s Motion For Partial
Summary Judgment Pending Discovery: And Request For Expedited Ruling Pursuant
To Local Rule 7(j) (Rule 56(d) Motion) (docket no. 17). By Order (docket no. 18),
filed July 13, 2012, I required expedited briefing on GLC’s Rule 56(d) Motion and
specifically directed the parties to address in their briefing the appropriate treatment of
the Motion For Partial Summary Judgment, if I find that the Rule 56(d) Motion should
be granted, that is, whether to deny plaintiff Community Voice’s (CV’s) Motion For
Partial Summary Judgment without prejudice to reassertion nearer the dispositive
motion deadline, which has not yet been set, or to continue the Motion For Partial
Summary Judgment to allow for a shorter period of targeted discovery before a
response to that motion is due.

I have now received and considered the parties’

expedited briefing on the Rule 56(d) Motion.
Local Rule 56.h, on which GLC’s present motion is based, provides as follows:
h.
Fed.R.Civ.P.56(f) Continuance. A request
pursuant to Federal Rule of Civil Procedure 56(f) for a
continuance of summary judgment proceedings must be by

separate motion, filed within 14 days after service of the
motion for summary judgment, and supported by affidavits,
as required by Federal Rule of Civil Procedure 56(f).
N.D. Ia. L.R. 56.h (2009). Since this version of the Local Rules was approved on
December 1, 2009, Rule 56 of the Federal Rules of Civil Procedure was amended,
inter alia, to place the provisions of former subdivision (f) in subdivision (d), “without
substantial change.”

FED. R. CIV. P. 56, Advisory Committee Notes, 2010

Amendments (effective December 1, 2010). Subdivision (d) of Rule 56 now provides
as follows:
(d) 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
declarations or to take discovery; or

affidavits

or

(3) issue any other appropriate order.
FED. R. CIV. P. 56(d) (2010) (formerly Rule 56(f)).

Thus, this rule 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
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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
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.
There is some merit to CV’s argument that further discovery pursuant to Rule
56(d) is not required in this case, because much of the information relevant to GLC’s
resistance is known to GLC or within its control. At the same time, there is also merit
to GLC’s position, outlined in its supporting brief and affidavit of counsel, that some of
these issues do involve disputed factual issues, as well as disputed legal issues, and that
GLC has not yet had adequate opportunity to conduct discovery on these issues, which
may be relevant either as to the part of the claim at issue in the Motion For Partial
Summary Judgment or as to GLC’s affirmative defenses to it. See FED. R. CIV. P.
56(d) (permitting further discovery and a delay of disposition of a Rule 56 motion, if “a
nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
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present facts essential to justify its opposition”). I am persuaded that the additional
discovery sought is relevant. See Ray, 609 F.3d at 923. Moreover, I am persuaded
that GLC has adequately identified what specific facts further discovery might uncover.
Marksmeier, 622 F.3d at 903. Notwithstanding CV’s position that GLC’s Rule 56(d)
Motion should be denied, I am also persuaded that GLC has the better argument that
denial of CV’s Motion For Partial Summary Judgment, without prejudice to reassertion
at a more appropriate time, is the most proper course under the circumstances presented
here. See FED. R. CIV. P. 56(d)(1). Specifically, there has been no discovery on any
claim or defense, no proposed scheduling order has been submitted, no discovery
deadlines have been set, and CV’s Motion For Partial Summary Judgment opens the
door to unnecessary and inappropriate piecemeal disposition of issues in this case.
THEREFORE, defendant Great Lakes Communications (GLC’s) July 13, 2012,
Motion For Denial Or Continuance Of Plaintiff’s Motion For Partial Summary
Judgment Pending Discovery: And Request For Expedited Ruling Pursuant To Local
Rule 7(j) (Rule 56(d) Motion) (docket no. 17) is granted, pursuant to Rule 56(d)(1) and
(3), to the extent that CV’s Motion For Partial Summary Judgment (docket no. 16) is
denied without prejudice to reassertion at or near the dispositive motion deadline that
will be set in this case, agreement of the parties that the issues presented in that motion
have been the subject of sufficient discovery to permit consideration by the court, or a
showing by CV that sufficient discovery has been had.
IT IS SO ORDERED.
DATED this 25th day of July, 2012.

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