Acuity v. Stephens et al

Filing 61

MEMORANDUM AND ORDER granting in part and denying in part Plaintiff Acuity's 48 Motion for Extension of Time to Respond to Defendant Gutterglove's 39 Motion for Summary Judgment. Plaintiff shall respond by 09/15/2014 to the jurisdictio nal and abstention issues raised in the 39 motion for summary judgment. If the case survives the jurisdictional inquiry, Plaintiff shall respond to the remainder of the 39 motion for summary judgment on or before 11/13/2014. Signed by District Judge Julie A. Robinson on 08/25/2014. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ACUITY, A MUTUAL INSURANCE
COMPANY,

)
)
)
Plaintiff,
)
)
v.
)
)
MARK STEPHENS, d/b/a STEPHENS
)
CONSTRUCTION; and GUTTERGLOVE,
)
INC.,
)
)
Defendants.
)
__________________________________________)

Case No. 13-2494-JAR-GLR

MEMORANDUM AND ORDER
Plaintiff Acuity, a Mutual Insurance Company (“Acuity”) brings this declaratory
judgment action against its insured Mark Stephens, seeking a determination that it has no duty to
defend or indemnify with respect to claims that have been asserted against Stephens by
Defendant Gutterglove, Inc. (“Gutterglove”). Before the Court is Plaintiff Acuity’s Motion for
Extension of Time to Respond to Defendant Gutterglove’s Motion for Summary Judgment (Doc.
48), seeking an extension of time to respond until sixty days after the completion of discovery.
The motion is fully briefed and the Court is prepared to rule. For the reasons set forth below, the
Court grants in part and denies in part Plaintiff’s motion for extension of time. With respect to
the issue of whether the declaratory judgment action presents a case or controversy, Plaintiff
shall respond by September 15, 2014. Plaintiff’s motion is granted in part as to the remainder of
the summary judgment motion under Fed. R. Civ. P. 56(d) until November 13, 2014.
I.

Background
On February 11, 2014, the parties participated in a scheduling conference with Magistrate

Judge Gerald L. Rushfelt. Under the Scheduling Order entered thereafter, “[e]arly discovery

should proceed without delay to address the issues of insurance coverage. The Court will
subsequently set a later deadline for completion of discovery relevant to the crossclaim.”1 The
discovery deadline was set for July 18, 2014, and a dispositive motions deadline on the issue of
insurance coverage was set for August 22, 2014.
Notwithstanding the fact that discovery was not yet complete, Gutterglove filed a Motion
for Summary Judgment on June 19, 2014. The motion asserts three arguments: (1) the Court
lacks jurisdiction to hear Acuity’s declaratory judgment action because it does not raise an actual
case or controversy; (2) summary judgment is appropriate on Acuity’s request for a declaration
that it has no duty to defend; and (3) summary judgment is appropriate on Acuity’s request for a
declaration that it has no duty to indemnify. As to the second ground raised in its motion,
Gutterglove maintains that the allegations in Gutterglove’s suit against Stephens are a sufficient
basis upon which this Court can make the coverage determination in this matter and therefore no
further discovery is necessary.2
The day after Gutterglove’s motion for summary judgment was filed, Acuity filed a
motion to compel discovery.3 Acuity maintains that, after obtaining an extension to respond to
Acuity’s discovery requests, Gutterglove unjustifiably objected to every interrogatory and
request for production served by Acuity. The motion to compel is pending. In the meantime,
Acuity sought extensions of time to complete discovery, to respond to the motion for summary
judgment, and to file dispositive motions. Acuity maintains that in order to respond to summary

1

Doc. 18 ¶ 2.e.

2

See Doc. 40 at 2.

3

Doc. 43.

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judgment, it must be permitted to discover the information requested in its interrogatories and
requests for production. Acuity submitted an affidavit, setting forth in detail the information it
seeks in that discovery and why it is imperative to Acuity’s ability to defend against the motion
for summary judgment on the duty to defend issue.4 Acuity requests an extension of time until
sixty (60) days following the close of discovery.
On August 21, 2014, Judge Rushfelt granted Acuity’s request for an extension of time to
complete discovery, setting a new discovery deadline of October 16, 2014.
II.

Discussion
Gutterglove opposes Acuity’s request for an extension of time to respond to summary

judgment, arguing that it did not file the appropriate procedure for delaying Acuity’s response
deadline set forth in Fed. R. Civ. P. 56(d). Under that rule, if a nonmovant states by affidavit
that he cannot present facts essential to oppose a motion for summary judgment, 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.”5 Acuity replies that it properly
sought an extension of time under Rule 6 and D. Kan. Rule 6.1, neither of which require an
affidavit; Acuity also attached a Rule 56(d) affidavit to its reply brief.
Acuity’s reason for seeking an extension is that it cannot present facts essential to oppose
summary judgment on the question of insurance coverage because of the pending motion to
compel and the failure to obtain any other discovery on that question so far. The Court agrees
that given Acuity’s basis for seeking an extension of time, it is appropriate to consider the

4

Doc. 56, Ex. A.

5

Fed. R. Civ. P. 56(d); Price v. Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000).

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request under Rule 56(d). The decision whether to grant a Rule 56(d) motion lies within the
sound discretion of the court.6 The nonmovant must satisfy several requirements to obtain relief
under Rule 56(d). By affidavit, he must explain: (1) why facts precluding summary judgment
are unavailable; (2) what probable facts he can find through further discovery; (3) what steps he
has taken to obtain such facts; and (4) how additional time will allow him to controvert facts.7
“A party may not invoke Rule 56[d] by simply stating that discovery is incomplete but must state
with specificity how the additional material will rebut the summary judgment motion.”8
The Court has reviewed Acuity’s affidavit and finds that Acuity’s request is well taken.
While Gutterglove is correct that the Court will be called upon on summary judgment to
determine whether there is a “potential for liability, . . . [u]nder Kansas law, lawsuit pleadings
are merely a starting point for the duty to defend analysis.”9 The inquiry does not end with the
pleadings, as “insurers must additionally consider actual facts of which it is or should be aware
when evaluating its duty to defend.”10 The Court agrees with Acuity that to the extent the
motion for summary judgment seeks a declaration on the issue of whether it had a duty to
defend, it is entitled to discovery before it should be required to respond to summary judgment
because the issue should not be decided on the basis of pleadings alone.
However, the motion for summary judgment does not strictly address the merits of the

6

Jensen v. Redevelopment Agency, 998 F.2d 1550, 1553–54 (10th Cir. 1993).

7

Price, 232 F.3d at 783 (quoting Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th
Cir. 1992)).
8

Garcia v. United States Air Force, 533 F.3d 1171, 1179 (10th Cir. 2008) (quotation omitted).

9

Miller v. Westport Ins. Corp., 200 P.3d 419, 424–25 (Kan. 2009).

10

Id. at 424.

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issue of whether Acuity has a duty to defend. It raises a threshold jurisdictional argument about
whether Acuity’s declaratory judgment action presents an actual case or controversy, and if so,
whether this Court should defer to the state court in this matter to decide the contract issue.
These are legal questions for which no discovery should be necessary in order to respond. The
Court therefore denies in part Acuity’s motion with respect to the jurisdictional questions.
Plaintiff shall respond to the jurisdictional and abstention issues raised in Gutterglove’s motion
by September 15, 2014. The Court defers ruling on the remainder of the motion for summary
judgment pursuant to Fed. R. Civ. P. 56(d)(1). If the case survives the jurisdictional inquiry,
Plaintiff shall file a response to the remainder of the motion for summary judgment on or before
November 13, 2014.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff Acuity’s Motion for
Extension of Time to Respond to Defendant Gutterglove’s Motion for Summary Judgment (Doc.
48), is granted in part and denied in part. Plaintiff shall respond by September 15, 2014 to the
jurisdictional and abstention issues raised in the motion for summary judgment. If the case
survives the jurisdictional inquiry, Plaintiff shall respond to the remainder of the motion for
summary judgment on or before November 13, 2014.
Dated: August 25, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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