Crumpley v. Associated Wholesale Grocers, Inc. et al
MEMORANDUM AND ORDER: IT IS THEREFORE ORDERED THAT AWG's Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. 59) is denied, but AWG's Motion for Summary Judgment is denied without prejudice. IT IS FURTHER ORDERED THAT plain tiff's Motion for Extension of Time to Defer Ruling on Motion for Summary Judgment or, in the Alternative, for Leave to File Surreply (Doc. 69) is granted in part and denied in part. Plaintiff's motion under Rule 56(d) is granted, but his m otion for leave to file a surreply is denied as moot. IT IS FURTHER ORDERED THAT, if AWG chooses to renew its motion for summary judgment, it must do so within the time frame established by the Scheduling Order (Doc. 47). Signed by District Judge Daniel D. Crabtree on 4/13/17. (hw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JACOB A. CRUMPLEY,
Case No. 16-cv-02298-DDC-GLR
ASSOCIATED WHOLESALE GROCERS,
INC., and CLARENCE M. KELLEY AND
MEMORANDUM AND ORDER
Broadly, this case is about whether defendants Clarence M. Kelley and Associates, Inc.
(“Kelley”) and Associated Wholesale Grocers, Inc. (“AWG”) fired plaintiff because he has a
seizure disorder—which plaintiff contends would violate the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq. But, more immediately, this case has become a dispute over
the question whether AWG was plaintiff’s joint employer. AWG says it wasn’t. Plaintiff says it
was. If AWG is correct, then it cannot be liable under the ADA and can exit this litigation now.
If plaintiff is correct, AWG stays in the case.
Trying to resolve this immediate dispute, AWG filed a Motion to Dismiss or, in the
Alternative, for Summary Judgment. Doc. 59. Plaintiff responded to the substance of AWG’s
Motion, but also filed a Motion for Extension of Time to Defer Ruling on Motion for Summary
Judgment or, in the Alternative, for Leave to File Surreply. Doc. 69. In its Motion, AWG asks
the court to dismiss the claims against it under either Federal Rule of Civil Procedure 12(b)(6) or
56. Rules 12(b)(6) and 56 require the court to use drastically different legal standards, so such
hybrid motions are disfavored. Nonetheless, the court considers AWG’s motion here.
Because plaintiff has filed a Rule 56(d) motion and the requisite affidavit, the court
excludes, at first, matters outside the pleadings. By excluding these matters in the first phase of
its analysis, the court can consider AWG’s hybrid motion as one that really presents two separate
motions: a motion to dismiss and a motion for summary judgment. See Fed. R. Civ. P. 12(d)
(“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and
not excluded by the court, the motion must be treated as one for summary judgment under Rule
56.”). Thus, the court first considers AWG’s motion to dismiss under Rule 12(b)(6). As
explained below, the court denies that motion. The court then turns to plaintiff’s motion under
Rule 56(d) to defer ruling on the summary judgment aspect of AWG’s motion. Because the
court concludes that is should grant plaintiff’s Rule 56(d) motion, it denies AWG’s motion for
AWG’s Motion to Dismiss
Because AWG brings its motion to dismiss under Rule 12(b)(6), the court takes the
following facts from plaintiff’s First Amended Complaint and accepts them as true. See S.E.C. v.
Shields, 744 F.3d 633, 640 (10th Cir. 2014).
Plaintiff Jacob Crumpley began working for Kelley in March 2014 after responding to a
Craigslist ad. Doc. 50 ¶¶ 13–14. This ad announced that Kelley was “hiring EMT/Security
Guards (unarmed) to work at a Kansas City, KS business.” Doc. 50-1 at 1.1 That business was
AWG. As soon as Kelley hired plaintiff, he began working for AWG in that role. Id. at 2; see
also Doc. 50 ¶¶ 12–13.
This information comes from plaintiff’s Kansas Human Rights Commission complaints against defendants.
Because plaintiff incorporates his Human Rights Commission complaints into his federal court Complaint by
reference and attaches them to his Complaint, the court may consider the contents of the complaints on a motion like
this one. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (stating that courts may consider “documents
that the complaint incorporates by reference” in a Rule 12(b)(6) motion (citations omitted)).
Plaintiff worked for AWG until August 21, 2014—about two months after plaintiff
suffered a seizure at work. Doc. 50 ¶¶ 12, 55. On August 21, 2014, plaintiff’s supervisor at
Kelley, Jeff Harper, informed plaintiff that AWG no longer needed him. Id. ¶¶ 12, 87, 90. No
one at AWG spoke with plaintiff about why he was fired. And, from his First Amended
Complaint, it appears that plaintiff did not speak with anyone at AWG on or after August 21,
After he was fired, plaintiff asked Mr. Harper whether his seizure condition led to his
dismissal from AWG. Mr. Harper told plaintiff that he was dismissed from AWG because AWG
“had requested ‘changes’ and that [p]laintiff’s job position was no longer needed.” Id. ¶ 90.
Before plaintiff had spoken with Mr. Harper, however, he had found the “exact same posting”
advertising the AWG job on Craigslist that he had responded to back in March 2014. Id. ¶ 92.
Kelley never placed plaintiff in another position. On September 11, 2014, Kelley
terminated plaintiff, telling him to “return his uniform and pick up his final paycheck.” Id. ¶ 99.
Plaintiff filed complaints with the Kansas Human Rights Commission on October 17, 2014.
Docs. 50-1, 50-2. They alleged that AWG and Kelley had violated the ADA by firing him
because of his seizure condition. See Docs. 50-1, 50-2. On March 3, 2016, the Kansas Human
Rights Commission issued a Notice of Right to Sue and plaintiff filed his original Complaint
with our court seven days later, asserting two claims under the ADA: unlawful termination and
retaliation. Doc. 50-3; Doc. 50-4; Doc. 1 at 1.
Then, on July 11, 2016, AWG filed a motion to dismiss plaintiff’s Complaint under Rule
12(b)(6). In that motion, AWG argued that plaintiff had not alleged facts sufficient to hold
AWG liable as his joint employer. The court agreed and granted its motion on November 8,
2016. Doc. 48. But the court also granted plaintiff leave to file an amended complaint. Id.
Plaintiff seized this opportunity and filed his First Amended Complaint on November 21, 2016.
Doc. 50. Plaintiff’s First Amended Complaint asserts the same two claims against AWG and
Kelley, but adds many new factual allegations. Less than a month after plaintiff filed this
Amended Complaint, AWG filed the Motion to Dismiss or, in the Alternative for Summary
Judgment at issue here. Doc. 59.
Rule 12(b)(6) Motion to Dismiss Standard
Rule 8(a)(2) provides that a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Although this Rule “does not require
‘detailed factual allegations,’” it demands more than “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Iqbal, 556 U.S. at
678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give
the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims.’” Carter v. United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009)
(quoting Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
On a motion to dismiss like this one, the court assumes that a complaint’s factual
allegations are true, but need not accept mere legal conclusions as true. Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” are not enough to state a claim for relief. Id.
AWG asks the court to dismiss plaintiff’s claims under Rule 12(b)(6) for failing to state a
claim. Specifically, AWG contends that plaintiff has failed to allege sufficient facts that, if
accepted as true, support his claim that AWG was his employer, as the ADA defines and uses
To state a claim under the ADA, plaintiff must allege that AWG was his employer. See
Bristol v. Bd. of Cty. Comm’rs of Cty. of Clear Creek, 312 F.3d 1213, 1217, 1221 (10th Cir.
2002).2 The Tenth Circuit uses three different tests to determine whether a defendant is an
employer under the ADA: (1) the hybrid test; (2) the joint-employer test; and (3) the singleemployer test. Id. at 1217–18; Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1225–26
(10th Cir. 2014). Here, plaintiff’s First Amended Complaint never asserts that AWG was his
sole employer. Instead, it alleges that both AWG and Kelley qualified as his employers. So,
only the joint-employer test is germane to this case. See Knitter, 758 F.3d at 1226 (“[T]he joint
employer test, not the hybrid test, is the appropriate test to use when an employee of one entity
seeks to hold another entity liable as an employer.” (citing Bristol, 312 F.3d at 1218)).
Under the joint-employer test, “a plaintiff who is the employee of one entity may seek to
hold another entity liable by claiming that the two entities are joint employers.” Bristol, 312
F.3d at 1218. This test “acknowledges that the two entities are separate, but looks to whether
they co-determine the essential terms and conditions of employment.” Id. To hold two entities
liable as joint employers, each one must “exercise significant control” over the terms and
The ADA defines employer in the same way that Title VII defines the term. Bristol, 312 F.3d at 1217. Because of
similarities in both statutes’ definitions, our Circuit frequently applies Title VII cases to similar terms and principles
in cases brought under the ADA, and vice versa. See Knitter, 758 F.3d at 1225 n.8 (noting that ADA cases
considering whether an entity is an employer are instructive in the Title VII setting); see also Bristol, 312 F.3d at
1217–18 (relying on Title VII employment relationship tests and case law to determine whether an entity was an
employer under the ADA).
conditions of a worker’s employment. Knitter, 758 F.3d at 1226 (citation omitted). To decide
whether a defendant exercises significant control over a worker’s employment, the court
considers several factors: (1) the right to terminate employment, (2) the ability to “promulgate
work rules and assignments,” (3) “day-to-day supervision of employees, including employee
discipline,” (4) control over compensation, benefits, and hours, and (5) “control of employee
records, including payroll, insurance, taxes and the like.” Id. (quoting Butterbaugh v. Chertoff,
479 F. Supp. 2d 485, 491 (W.D. Pa. 2007)). The most important factor, however, is the right to
terminate employment. Id.
Here, AWG contends that plaintiff has not alleged facts sufficient to support a plausible
claim that AWG was his joint employer under these factors. The court considers each factor
below, bearing in mind that the standard plaintiff must satisfy to survive AWG’s motion to
dismiss is low and requires no actual proof. Instead, the governing standard just requires
Factor One: Right to Terminate Employment
In his First Amended Complaint, plaintiff alleges that AWG had “the power to terminate”
him in one of two ways: “by ‘refusing’ to allow him to work for AWG, or by simply requesting
Defendant Kelley terminate him.” Doc. 50 ¶ 51. AWG contends that this allegation is not
sufficient for two reasons: (1) because “AWG’s right to request that [p]laintiff no longer work
on its premises” is, legally, not the same as the right to terminate plaintiff’s employment with
Kelley; and (2) because plaintiff’s allegation that AWG could ask Kelley to terminate him,
“implicitly acknowledges that while AWG had the ability to request that Kelley no longer assign
Plaintiff to work at its facility, only Kelley could terminate his employment.” Doc. 60 at 17.
Although the court agrees with AWG that having the right to request plaintiff no longer
be assigned to AWG is not the same as having the right to fire plaintiff,3 the court is not
persuaded by AWG’s second argument. Plaintiff has alleged that AWG could terminate his
employment by “requesting Defendant Kelley terminate him.” Doc. 50 ¶ 51. This allegation is
not a legal conclusion, so the court must accept it as true. This allegation thus provides a
plausible basis for the court to infer that AWG had the right to terminate plaintiff’s employment.
And, at the motion to dismiss stage, nothing more is required. This first, and most important
factor, thus counsels against dismissal.
Factor Two: Work Rules and Assignments
Plaintiff also alleges that AWG “gave [p]laintiff work assignments and dictated rules
governing his work.” Id. ¶ 21. AWG contends that this allegation is not sufficient because it is
“conclusory” and does not support an inference “that AWG promulgated work rules or issued
assignments beyond those expected of a contractual vendor/client relationship.” Doc. 60 at 19.
The court disagrees.
Although plaintiff’s allegation that AWG controlled his assignments and dictated the
rules he must follow seems somewhat conclusory, it is not a legal conclusion and so the court
must accept it as true. This allegation alone, then, likely is sufficient to allow the court to infer
that AWG controlled the rules that governed plaintiff’s employment and his work assignments.
But plaintiff also alleges specific facts that add additional support to his quasi-conclusory
allegation. These allegations include ones asserting that plaintiff worked only at AWG’s facility
and that “AWG determined when [p]laintiff would be trained on and assigned to a patrol
position.” Doc. 50 ¶¶ 19, 31. Plaintiff also alleges several examples of how AWG required him
See Doc. 48 at 5–6 (explaining that the right-to-terminate inquiry focuses on the right to terminate employment,
not to terminate an employee from his or her assignment).
to abide by AWG-specific rules. See id. ¶¶ 29, 33, 40–41. For instance, AWG required plaintiff
to arrive at least “five minutes before his work shift.” Id. ¶ 33. And, though Kelley provided
plaintiff with a uniform, AWG required plaintiff to wear a belt. Id. ¶ 29. These allegations are
sufficient to permit the court to infer that AWG controlled the rules governing plaintiff’s
employment and his work assignments. This second factor also counsels against dismissal.
Factor Three: Day-to-Day Supervision and Discipline
AWG contends that plaintiff fails to allege facts sufficient to support the third jointemployer factor because he never alleges “that AWG had the ability to formally evaluate [his]
performance or discipline [him].” Doc. 60 at 22. But this is not quite so. Plaintiff alleges that
“AWG’s supervisory employees monitored [his] job performance” and “commented on [his] job
performance.” Doc. 50 ¶¶ 35, 37. Plaintiff also alleges that one of AWG’s employees, Mark
Hulett, “acknowledged he was [p]laintiff’s supervisor” when Mr. Hulett filled out a form after
plaintiff’s seizure and listed himself as plaintiff’s “supervisor” in response to the form’s question
asking what Mr. Hulett’s relationship was to the patient—here, plaintiff. Id. ¶¶ 58–59. So,
plaintiff has alleged facts sufficient to support an inference that AWG employees supervised
plaintiff’s day-to-day activities.
Plaintiff does not allege that AWG had the ability to discipline him formally. But the
court is willing to overlook this possible shortcoming because plaintiff’s First Amended
Complaint provides a reasonable explanation for it: Neither AWG nor Kelley ever formally
disciplined plaintiff. Id. ¶ 54. This third factor thus counsels against dismissal.
Factors Four and Five: Compensation, Benefits, Hours, and Control of
Like his original Complaint, plaintiff’s First Amended Complaint lacks any allegations
about plaintiff’s benefits or employment records. Doc. 48 at 8. So, plaintiff fails to allege any
facts to support the fifth joint-employer factor. Plaintiff, however, does allege one fact
supporting the fourth factor: AWG “had the ability to, and on at least one occasion did, assign
[p]laintiff’s specific work hours.” Doc. 50 ¶ 31. In contrast, plaintiff does not allege that AWG
controlled his compensation or benefits. See id. ¶¶ 42, 44 (alleging that Kelley controlled his
compensation and issued his paychecks). The court thus considers the fourth factor as something
of a wash—weighing in favor of dismissal, but just slightly.
In sum, three of the five joint-employer factors recognized by our Circuit counsel against
dismissal. Given the importance and strength of these three factors, the court concludes that
plaintiff has alleged sufficient facts to support an inference that AWG was his joint employer.
The court thus denies AWG’s motion to dismiss, and now moves on to consider plaintiff’s
Motion for Extension of Time to Defer Ruling. See Wilson v. Vill. of Los Lunas, 572 F. App’x
635, 639 (10th Cir. 2014) (noting that, usually, “a district court should decide a Rule 56(d)
request before deciding summary judgment” (citations omitted)).
Plaintiff’s Rule 56(d) Motion and Affidavit
In his Motion for Extension of Time to Defer Ruling (“Rule 56(d) Motion”), plaintiff
invokes Rule 56(d), which allows a court to “(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 when a party shows by affidavit that it cannot present facts essential to
justify its opposition. Fed. R. Civ. P. 56(d). AWG opposes plaintiff’s Rule 56(d) motion,
contending that the court should not even consider the Rule 56(d) motion because it is untimely
“When Rule 56 was rewritten in 2010, the provisions in Rule 56(f) were moved to a new subdivision
(d), without any substantial changes.” 10B Charles Alan Wright et al., Federal Practice and Procedure §
2740 (3d ed. 2015). Cases referencing the pre-2010 version of the rule cite subsection (f).
and that, should the court consider the motion, plaintiff has failed to carry his burden under Rule
The Tenth Circuit does not impose a high burden on a party seeking relief under Rule
56(d). Instead, our Circuit has made it clear that, “[u]nless dilatory or lacking in merit, [a Rule
56(d)] motion should be liberally treated.” Jensen v. Redevelopment Agency of Sandy City, 998
F.2d 1550, 1554 (10th Cir. 1993) (citations omitted). As such, the Circuit imposes just four
requirements on a party trying to secure relief under Rule 56(d): a party “must specify (1) the
probable facts not available, (2) why those facts cannot be presented currently, (3) what steps
have been taken to obtain these facts, and (4) how additional time will enable [him] to obtain
those facts and rebut the motion for summary judgment.” Gutierrez v. Cobos, 841 F.3d 895, 908
(10th Cir. 2016) (quoting Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015)).
As a shorthand, the court calls these four factors “the Gutierrez factors,” though it recognizes
that they predate that case.
Whether to grant a Rule 56(d) motion that addresses these Gutierrez factors is left to the
court’s discretion, but if the party filing the motion “has been dilatory” or “the information
sought is either irrelevant to the summary judgment motion or merely cumulative, no extension
will be granted.” Jensen, 998 F.2d at 1554 (citing Patty Precision v. Brown & Sharpe Mfg. Co.,
742 F.2d 1260, 1264–65 (10th Cir. 1984)).
Here, AWG argues that plaintiff has not addressed or satisfied the Gutierrez factors, was
dilatory in filing his Rule 56(d) Motion, and seeks to discover irrelevant information. Given
these arguments, the court first considers whether plaintiff has addressed the four Gutierrez
factors, then considers whether any reason exists to deny his motion.
The Gutierrez Factors
Plaintiff’s Rule 56(d) Motion and Affidavit sufficiently address all four Gutierrez factors.
In his Motion, plaintiff explains that many of the facts he wishes to rely on to oppose summary
judgment come from AWG’s and Kelley’s initial Rule 26 disclosures. Plaintiff also explains that
he does not yet possess those facts and documents in a format that makes them admissible at
summary judgment because he has not been able to make them admissible by deposing AWG or
Kelley employees. See Powers v. Tweco Prods., Inc., 206 F. Supp. 2d 1097, 1103 (D. Kan.
2002) (“The parties need not present evidence in a form that would be admissible at trial, but the
content or substance of the evidence must be admissible. . . . [So,] the court may disregard facts
supported only by references to documents unless the parties have stipulated to the admissibility
of the documents or the documents have been authenticated by and attached to an affidavit
meeting the requirements of Rule 56(e).” (citations omitted)). In his Rule 56(d) Affidavit,
plaintiff’s attorney, Katherine Myers, testifies to this fact, explaining that, so far, the parties have
engaged in only written discovery. Doc. 70-1 ¶¶ 5–6. She also testifies that plaintiff needs more
time for discovery to “obtain additional evidence . . . responsive to Defendant AWG’s Motion
for Summary Judgment.” Id. ¶ 6. She explains that documents defendants have produced
already suggest that plaintiff, with further discovery, is likely to discover the following facts:
AWG and Kelley produced writings that altered the Agreement between them, which
dictates the relationship that the two entities have with staff supplied to AWG by Kelley;
AWG employees “believed they had the power to terminate [p]laintiff’s employment”;
Kelley would terminate plaintiff’s employment if AWG asked it to do so; and
AWG provided plaintiff with training materials and “work rules . . . that governed
Id. ¶¶ 11–13, 16. Ms. Myers also explains that additional discovery would permit plaintiff to
develop facts about AWG and Kelley’s relationship, the veracity of documents that AWG relies
on in its motion for summary judgment, the role AWG played in plaintiff’s hiring, and “the
degree of supervision over [p]laintiff provided by Defendant AWG’s employees, including
Amber Morlan and Jerry Burke.” Id. ¶ 15; id. ¶¶ 8, 10, 14.
Although these last few facts are not ones that lend themselves to a concise list like those
noted in the bullet points above, they are, by and large, sufficiently specific. See Gutierrez, 841
F.3d at 908–09 (affirming district court’s decision to deny a Rule 56(d) motion because, in part,
the motion’s request was “‘wide-ranging’ and failed to focus on the critical issues for summary
judgment”). From plaintiff’s Rule 56(d) Motion, the court understands that he believes that
further discovery will show that AWG employees supervised him and that AWG had a hand in
hiring him. And, although plaintiff’s request for additional discovery to develop facts about
AWG and Kelley’s relationship and to establish the veracity of the documents that AWG relies
on in its motion for summary judgment appears broad, the request is not overly broad.
Finally, plaintiff’s Motion links all of the facts he seeks to different factors used by the
joint-employer test and his procedural ability to oppose AWG’s motion for summary judgment.
Plaintiff thus has addressed all four Gutierrez factors.
Still, AWG contends that plaintiff fails to address the first and fourth Gutierrez factors
sufficiently because: (1) plaintiff fails to explain how the existence of the facts he seeks is
probable and not simply speculative; (2) AWG’s summary-judgment evidence precludes the
existence of many of the facts plaintiff seeks; and (3) plaintiff fails to explain how the facts he
seeks are essential to justifying his opposition of AWG’s motion for summary judgment. The
court considers all three arguments, separately, below.
Is the Existence of the Facts Plaintiff Seeks Speculative?
AWG contends that plaintiff has failed to address the first Gutierrez factor sufficiently
because the existence of the facts he seeks to find through additional discovery is speculative.
Doc. 77 at 6–8. Put more plainly, AWG contends that plaintiff fails to explain “the reasons why
he believes he is ‘likely’ to discover” the “probable facts” recited in his Rule 56(d) Motion and
Affidavit. Id. at 6. But “likely” is not the standard under the first Gutierrez factor.
A party’s Rule 56(d) affidavit is not improperly speculative simply because the party
cannot prove, definitively, the existence of the facts sought. See Steven Gensler, Federal Rules
of Civil Procedure: Rules and Commentary Rule 56, Westlaw (Feb. 2017) (explaining that, so
long as a party offers “some basis other than a speculative hope that the intended sources might
reveal helpful information,” “[a] party does not need to prove in advance that the facts exist”
(footnote 148 omitted)); see also Mid-Am. Pipeline Co. v. Lario Enters., Inc., No. 88-4205-S,
1989 WL 35984, at *1 (D. Kan. Mar. 17, 1989) (granting Rule 56(d) motion so that the nonmovant had “the opportunity to conduct discovery sufficient to determine whether genuine issues
of material fact exist”). But, at the same time, “a litigant’s unsupported averments cannot justify
deferring a ruling on—let alone denying altogether—a motion for summary judgment.” Ellis v.
J.R.’s Country Stores, Inc., 779 F.3d 1184, 1208 (10th Cir. 2015) (first citing Meyer v. Dans un
Jardin, S.A., 816 F.2d 533, 537 (10th Cir. 1987); then citing Culver v. Town of Torrington, 930
F.2d 1456, 1458–59 (10th Cir. 1991)). All that is required is that the party seeking relief must
provide some basis for the court to believe the existence of the facts sought is “probable.” See
Gutierrez, 841 F.3d at 908 (“[A] non-movant requesting additional discovery under Rule 56(d)
‘must specify (1) the probable facts not available . . . .’” (emphasis added) (citations omitted)).5
The court recognizes that other circuits have adopted a standard-of-proof of sorts for Rule 56(d) motions. For
instance, the First Circuit requires Rule 56(d) movants to “set forth a plausible basis for believing that the necessary
Here, plaintiff bases his request for additional discovery, in part, on documents
defendants have produced during written discovery—constituting defendants’ initial Rule 26
disclosures and responses to plaintiff’s initial interrogatories and first request for production.
Docs. 70, 70-1. Plaintiff bases the rest of his request on the need to conduct depositions to
determine the extent of things already known, e.g., the degree to which AWG employees
supervised him and the nature of AWG and Kelley’s working relationship, and to convert facts
already known into an admissible format. The court finds these reasons sufficient to show that
the existence of the facts plaintiff seeks is, at least, probable.
AWG argues that one of plaintiff’s probable facts “does not provide the basis for his
belief that written modifications exist” to the agreement between AWG and Kelley, “other than
the contract language itself.” Doc. 77 at 7. This is not quite so. Plaintiff relies on the language
of the contract itself, which allows variances to its terms, but he also relies on “other documents
produced in discovery [that] suggest [d]efendants significantly changed the nature and extent of
. . . AWG’s control over [p]laintiff’s work.” Doc. 84 at 8. Plaintiff directs the discussion to one
document in particular—an email from AWG telling Kelley not to fire plaintiff. Id.; see also
Doc. 70 at 7. So, plaintiff has provided some basis for the court to conclude that some variance
to the agreement between AWG and Kelley probably exists.
Plaintiff has thus satisfied the first Gutierrez factor.
Effect of AWG’s Summary-Judgment Evidence
Much of AWG’s opposition to plaintiff’s Rule 56(d) motion relies on the argument that
AWG’s summary-judgment evidence contradicts the facts that plaintiff seeks to discover. Doc.
77 at 7–8. And so, AWG argues, the court must deny plaintiff’s motion. Id. AWG cites no
facts probably exist.” Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 127 (1st Cir. 2006) (citations
omitted)). But the Tenth Circuit does not seem to have done so, and the Tenth Circuit uses an altogether different
Rule 56(d) test than the First Circuit and others that have adopted similar standards of proof.
authority suggesting that a court should consider a summary-judgment movant’s evidence when
determining whether to grant relief to the non-movant under Rule 56(d), and the court has found
no such authority. AWG’s unsupported argument thus is not persuasive under any Gutierrez
Are the Facts Plaintiff Seeks to Discover Essential to His Opposition?
AWG contends that plaintiff has failed to address or satisfy the fourth Gutierrez factor.
Trying to support this contention, AWG advances two arguments: (1) because plaintiff
responded to its motion for summary judgment, the facts he seeks are not essential to his
opposition; and (2) plaintiff fails to explain how one of the facts he seeks is relevant to the jointemployer question posed by AWG’s motion for summary judgment. Because these two
arguments are quite different from one another, the court considers them separately.
Effect of Plaintiff’s Response to AWG’s Motion for Summary
AWG asserts that, because plaintiff “has already fully responded to” its motion for
summary judgment, he “cannot now argue that he requires additional discovery to respond to”
that motion. Doc. 77 at 4. But if such a bright-line rule exists, AWG has not cited it. Nor can
the court find a rule that prohibits a district court from granting a Rule 56(d) motion that is filed
after a plaintiff responds to the defendant’s summary judgment motion. But see Pasternak v.
Lear Petroleum Expl., Inc., 790 F.2d 828, 833 (10th Cir. 1986) (stating, in dicta, that “[t]he
protection afforded by Rule 56(f) is an alternative to a response in opposition to summary
judgment under 56(e) and is designed to safeguard against a premature or improvident grant of
summary judgment” after noting that the plaintiff “did in fact respond to the motion for summary
judgment with a brief and exhibits,” but not resting its abuse-of-discretion holding on this fact
(citing 10A Charles A. Wright et al., Federal Practice and Procedure § 2740 (1983))). Instead,
AWG cites two cases that support the proposition that a district court may deny a Rule 56(d)
motion because it is filed after a response: Gutierrez v. Cobos and Adams v. Allstate Insurance
Co., 187 F. Supp. 2d 1207 (C.D. Cal. 2002).
In Gutierrez v. Cobos, the Tenth Circuit held that a district court did not abuse its
discretion when it denied a Rule 56(d) motion. 841 F.3d at 909. There, the plaintiffs’ Rule 56(d)
motion came “more than three months after they had filed [a] factually detailed response
opposing summary judgment.” Id. at 908. “Given the timing, the [district] court questioned
whether [the] [p]laintiffs’ requested discovery was essential to their ability to respond.” Id.
And, when it affirmed the district court’s decision, the Tenth Circuit noted that the denied Rule
56(d) motion was the plaintiffs’ “fourth motion for discovery.” Id. at 909.
In Adams v. Allstate Insurance Co., the Central District of California denied the
plaintiffs’ Rule 56(d) motion because they failed to address that court’s Rule 56(d) factors and
because the court believed the plaintiffs’ “detailed and thorough opposition to” the pending
motion for summary judgment “belie[d] the assertion that they [could not] defend against it.”
187 F. Supp. 2d at 1213–14.
The court finds neither Gutierrez nor Adams dispositive here. First, neither case provides
much detail about the Rule 56(d) motions nor affidavits at issue in those cases, so the court
cannot determine whether those cases are similar to this one. Second, unlike Gutierrez,
plaintiff’s Rule 56(d) motion here is his first motion seeking discovery to respond to a summary
judgment motion’s substance. Third, plaintiff filed his motion only 24 days after his Response
and 10 days after AWG’s Reply, so the delay here is much shorter than the delay in Gutierrez.
Docs. 65, 67, 69. This minimizes the court’s skepticism that plaintiff’s motion is just a stalling
ploy. Fourth, unlike Adams, plaintiff’s Motion and Affidavit address the Gutierrez factors, and
they do so satisfactorily. And last, unlike both Gutierrez and Adams, that plaintiff filed a
response to AWG’s motion for summary judgment before filing his Rule 56(d) Motion here does
not belie plaintiff’s assertion that the discovery he requests is essential.
Plaintiff has responded to AWG’s motion for summary judgment and then realized—
thanks to AWG’s Reply—that the evidence he had relied on was not yet admissible. To make
this evidence admissible, however, plaintiff must depose AWG and/or Kelley employees. He
has not yet had an opportunity to do so—the parties are still in the written discovery phase of
litigation. Although this court’s rules are clear—at summary judgment, “facts must be identified
by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein” 6—the
court sees nothing disingenuous, frivolous, or dilatory about plaintiff’s failure to file his Rule
56(d) Motion before filing his Response to AWG’s motion for summary judgment.
Also, plaintiff’s delayed filing does not change the fact that the facts he seeks time to
secure are essential to justify his opposition to AWG’s summary judgment motion. Without time
to conduct more discovery, plaintiff cannot obtain the deposition testimony necessary to make
many—if not most—of the facts relied on in his Response admissible. So, AWG’s reliance on
Gutierrez and Adams, though understandable, does not alter the court’s conviction that plaintiff
has satisfied the fourth Gutierrez factor.
Is the Subject Belief of an AWG Employee Essential to Plaintiff’s
Opposition to AWG’s Motion for Summary Judgment?
AWG next contends that plaintiff failed to satisfy Gutierrez’s fourth factor because he
has failed to “explain how discovery on a person’s subjective belief would assist him in
establishing that AWG had the power to actually terminate [p]laintiff’s employment with
Kelley.” Doc. 77 at 7. In other words, AWG contends that its employees’ subjective beliefs
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Thomas v. Wichita Coca-Cola Bottling
Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
about its power to terminate plaintiff are irrelevant to the joint-employer analysis, and so the
court should deny plaintiff’s Rule 56(d) motion.
AWG is correct that Mr. Crumpley, as the party seeking more time for discovery, must
show that the new discovery he seeks could alter the outcome of AWG’s motion for summary
judgment. See United States v. Supreme Court of N.M., 839 F.3d 888, 905–06 (10th Cir. 2016)
(affirming district court’s denial of a plaintiff’s Rule 56(d) motion when the facts the plaintiff
sought, “even if established, would not have affected the district court’s central legal
conclusion”); accord Gensler, supra, at Rule 56. Otherwise, the facts plaintiff wishes to secure
are not essential to justify his opposition to AWG’s motion. Supreme Court of N.M., 839 F.3d at
905–06. But the court disagrees with AWG’s evaluation of plaintiff’s Motion and Affidavit.
To support his request for discovery to determine whether AWG’s employees believed
they had the power to terminate plaintiff’s employment with Kelley, plaintiff cites Knitter v.
Corvias Military Living, LLC. Doc. 70 at 7–8. In that case, the Tenth Circuit noted several facts
that led it to conclude that the defendant did not have the right to terminate the plaintiff. 758
F.3d at 1229. At least two of those facts involved the defendant’s subjective belief: (1) the
defendant’s “managers repeatedly testified they did not believe they had the power to fire vendor
handymen” and (2) no record evidence suggested that the defendant knew that its request to
reassign the plaintiff would require the placement agency to fire her. Id. at 1228–29. So, Knitter
suggests that a defendant’s subjective belief in its ability to terminate an employee can be
relevant to the court’s joint-employer analysis. The court acknowledges, however, that Knitter
noting these facts in its analysis does not make a defendant’s subjective belief in its right to
terminate an employee required or even dispositive under the joint-employer test. The court thus
concludes that AWG’s subjective belief of its right to terminate plaintiff may inform plaintiff’s
opposition to AWG’s motion for summary judgment.
As for the remaining facts plaintiff seeks, the court concludes that they too are essential
to justifying his opposition to AWG’s motion. For instance, if plaintiff cannot take depositions
to make the facts he already possesses admissible, he cannot justify opposing summary
judgment. Also, the joint-employer test is highly fact-specific, and the facts plaintiff seeks likely
are essential to proving plaintiff’s contention that AWG was, in fact, his joint employer.
Because plaintiff has shown that the facts he seeks are essential to justifying his opposition to
AWG’s Motion for Summary Judgment, he has satisfied the fourth Gutierrez factor.
In sum, the court finds that plaintiff’s Rule 56(d) Motion and Affidavit address and
satisfy all four Gutierrez factors. It remains to be seen, however, whether some reason exists for
the court to deny plaintiff’s motion.
Whether to Grant or Deny Plaintiff’s Rule 56(d) Motion
The court is inclined to grant plaintiff’s Rule 56(d) Motion. Plaintiff has addressed and
satisfied the Gutierrez factors, and the court believes that plaintiff is entitled to more discovery
before it rules on AWG’s motion for summary judgment. Indeed, plaintiff reports that the
parties were in the early stages of discovery when AWG filed its motion for summary judgment.
AWG served plaintiff with its initial Rule 26 disclosures on October 7, 2016. Doc. 28. Then,
about a month and a half later, plaintiff served AWG and Kelley with his first set of
interrogatories and first request for production. Doc. 52. AWG filed its Motion for Summary
Judgment on December 15, 2016, which made plaintiff’s response due by January 5, 2017. Doc.
59; Fed. R. Civ. P. 6; D. Kan. R. 6.1. AWG did not respond to plaintiff’s first request for
production and initial interrogatories until December 27, 2016—that is, about nine days before
plaintiff’s response to AWG’s Motion for Summary Judgment was due. Doc. 62. And plaintiff
did not receive Kelley’s response to his first request for production or initial interrogatories until
January 2, 2017—two days before his response was due. Doc. 64. Neither AWG nor plaintiff
has scheduled or conducted a deposition in this case.
The court thus is concerned that the parties have not developed a record sufficiently
robust for the court to decide the important joint-employer question presented by AWG’s motion
for summary judgment. Cf. Mid-Am. Pipeline Co., 1989 WL 35984, at *1 (granting Rule 56(d)
motion because “summary judgment [was] premature at [the] time” based on the limited time for
discovery). And, based on the timing of this case, plaintiff has acted diligently in his attempts to
discover the facts referenced by his Motion and Affidavit. The court acknowledges, however,
that AWG’s argument that plaintiff could have testified via affidavit to the authenticity of any
training documents he received from AWG and wished to rely on at summary judgment is well
taken. Cf. Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th
Cir. 2010) (denying Rule 56(d) motion, in part, because the parties seeking relief failed to
explain why they didn’t already possess evidence about their relationship with their previous
attorneys). But, the court does not view this omission as serious enough to negate the rest of his
Rule 56(d) motion. And the court still believes that the parties have not yet developed a
sufficient record for the court to decide the joint-employer issue.
The court also recognizes that plaintiff’s failure to file his Rule 56(d) Motion until 24
days after responding to AWG’s motion—and 10 days after AWG filed its Reply to his
Response—weighs against his position in that motion. But, again, the court sees nothing
disingenuous, frivolous, or dilatory in this delay. So, after carefully considering AWG’s
arguments, the court grants plaintiff’s Rule 56(d) motion. Rule 1 requires the court to apply the
Federal Rules of Civil Procedure in a way that secures “the just, speedy, and inexpensive
determination of every action and proceeding.” See Doc. 77 at 9 n.4 (arguing that granting
plaintiff’s Rule 56(d) motion “would not be consistent with the mandate” of Rule 1). But the
court’s first duty under Rule 1 is to ensure the just determination of every action. To decide
AWG’s motion for summary judgment on an insufficient record would betray this duty. Cf.
Mid-Am. Pipeline Co., 1989 WL 35984, at *1 (granting Rule 56(d) motion despite
“recognize[ing] the importance of moving th[e] case along to a speedy resolution”).
The court thus grants plaintiff’s Rule 56(d) motion and denies AWG’s motion for
summary judgment. But it does so without prejudice to AWG refiling such a motion. See Miller
et al., supra, § 2740 (when granting a Rule 56(d) request, “the usual practice is to deny summary
judgment without prejudice to the right to reapply at a later date”); Fed. R. Civ. P. 56(d)(1).
IT IS THEREFORE ORDERED THAT AWG’s Motion to Dismiss or, in the
Alternative, for Summary Judgment (Doc. 59) is denied, but AWG’s Motion for Summary
Judgment is denied without prejudice.
IT IS FURTHER ORDERED THAT plaintiff’s Motion for Extension of Time to Defer
Ruling on Motion for Summary Judgment or, in the Alternative, for Leave to File Surreply (Doc.
69) is granted in part and denied in part. Plaintiff’s motion under Rule 56(d) is granted, but his
motion for leave to file a surreply is denied as moot.
IT IS FURTHER ORDERED THAT, if AWG chooses to renew its motion for
summary judgment, it must do so within the time frame established by the Scheduling Order
IT IS SO ORDERED.
Dated this 13th day of April, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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