Fugett v. Security Transport Services, Inc.
MEMORANDUM AND ORDER denying without prejudice Defendant's 27 Motion for Summary Judgment. Signed by District Judge Julie A. Robinson on 03/23/2015. (mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SECURITY TRANSPORT SERVICES,
Case No. 14-2291-JAR-KGS
MEMORANDUM AND ORDER
Plaintiff Marshonda Fugett brings action against Defendant Security Transport Services
(“STS”) asserting various federal and state claims of sexual harassment, hostile work
environment, and retaliation. Before the Court is Defendant’s Motion for Summary Judgment
(Doc. 27). As explained more fully below, the Court denies the motion without prejudice
pursuant to Fed. R. Civ. P. 56(d)(1).
The Scheduling Order provided a discovery deadline of April 10, 2015, and a dispositive
motions deadline of May 27, 2015. Well before either deadline passed, Defendant filed its
motion for summary judgment and sought a discovery stay pending the Court’s decision on the
summary judgment motion. Magistrate Judge Sebelius denied the motion to stay, noting that
Defendant relied heavily on the affidavit of STS President Thomas Baumann to support its
factual contentions on summary judgment. Yet Plaintiff had not had the opportunity to depose
Baumann, nor several other key witnesses in this case. Judge Sebelius also found that STS had
not made the necessary showing that allowing discovery on all issues raised by Plaintiff’s
Complaint would be wasteful and burdensome.
After Judge Sebelius denied the motion to stay, Plaintiff filed her response to the motion
for summary judgment.1 In the response, Plaintiff contends that she cannot present specific facts
essential to justify a complete response to the motion for summary judgment because she has not
had a full opportunity to conduct essential discovery. Specifically, Plaintiff cites the following
depositions she has not yet had an opportunity to conduct: Baumann, Gregory Robinson, and
STS employees Michelle Brokaw, Yvette Jones, Frelna Crawford, Anna Frieden, Angela Jaindl,
and A.J. Kotich. Nonetheless, Plaintiff attempted to respond to Defendant’s factual contentions,
indicating in response to a majority of these factual averments that “Plaintiff is without sufficient
information or knowledge to either admit or deny the statement” on the basis of a lack of
discovery. In particular, Plaintiff seeks to depose Baumann in order to respond to the many facts
set forth by Defendant that are based upon his affidavit. Plaintiff attaches her attorney’s
affidavit, setting forth the need for further discovery in order to respond to the summary
judgment motion.2 Defendant has not filed a reply and the time to do so has expired.3
Under Fed. R. Civ. P. 56(d), 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.”4 The decision whether to grant a Rule 56(d) motion lies
within the sound discretion of the court.5 The nonmovant must satisfy several requirements to
obtain relief under Rule 56(d). By affidavit, she must explain: (1) why facts precluding
Doc. 40, Ex. 1.
See D. Kan. R. 6.1(d)(2) (providing for a fourteen-day reply time on dispositive motions).
Fed. R. Civ. P. 56(d); Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000).
Jensen v. Redevelopment Agency, 998 F.2d 1550, 1553–54 (10th Cir. 1993).
summary judgment are unavailable; (2) what probable facts she can find through further
discovery; (3) what steps she has taken to obtain such facts; and (4) how additional time will
allow her to controvert facts.6 “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.”7
As Judge Sebelius explained in his order denying the motion to stay discovery, Plaintiff
has not had an opportunity to challenge the veracity of Baumann’s contentions, despite
requesting to depose him prior to STS filing the summary judgment motion. Plaintiff reasonably
believed she would have until the discovery deadline to discover her case, but because the
summary judgment motion was filed well in advance of that deadline, she has not taken
depositions of key individuals. The Rule 56(d) affidavit submitted with the response explains
these matters, as well as identifies the steps counsel has taken to obtain the information needed
to respond to the summary judgment motion. The docket shows that Plaintiff has noticed
depositions for Baumann, A.J. Kotich, Sandy Kokker, and the STS corporate representative in
early April. The Court therefore finds that Plaintiff has met her burden of stating with specificity
the need for further discovery and how the additional material is necessary to rebut the summary
judgment motion. Defendant’s motion for summary judgment is thus denied without prejudice
to refiling. Upon completion of discovery in this matter, Defendant may refile its motion by the
previously-set dispositive motions deadline of May 27, 2015.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Price, 232 F.3d at 783 (quoting Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th
Garcia v. United States Air Force, 533 F.3d 1171, 1179 (10th Cir. 2008) (quotation omitted).
Summary Judgment (Doc. 27) is denied without prejudice.
Dated: March 23, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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