Martin K. Eby Construction Company, Inc. v. OneBeacon Insurance Company

Filing 155

MEMORANDUM AND ORDER granting 140 Motion to Defer. Ebys response to KBRs Motion for Summary Judgment is due November 21, 2011. Signed by District Judge Wesley E. Brown on 10/20/2011. (aa)

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF KANSAS
MARTIN K. EBY CONSTRUCTION
COMPANY, INC.,
Plaintiff,
v.
ONE BEACON INSURANCE
COMPANY, successor in interest to
COMMERCIAL UNION INSURANCE
COMPANY,
Defendants.
CONTINENTAL CASUALTY
COMPANY, NATIONAL FIRE
INSURANCE COMPANY OF
HARTFORD as successor by merger with
Transcontinental Insurance Company, and
COLUMBIA CASUALTY COMPANY,
Plaintiffs,
v.
ONE BEACON INSURANCE
COMPANY as successor to
COMMERCIAL UNION INSURANCE
COMPANY; TRAVELERS CASUALTY
& SURETY COMPANY as successor
to AETNA CASUALTY & SURETY
COMPANY; UNITED STATES
FIDELITY & GUARANTY COMPANY;
ST. PAUL FIRE & MARINE
INSURANCE COMPANY; and MARTIN
K. EBY CONSTRUCTION CO., INC.,
Defendants.

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Case No. 08-1250-WEB

Case No. 08-2392-WEB

Memorandum and Order
Eby Construction filed a Motion to Defer (Doc. 140), requesting additional time to

respond to KBR’s Motion for Summary Judgment. Eby requests an extension of seven days past
their expert disclosure date to respond, arguing their expert disclosures are necessary to
adequately respond to the summary judgment motion. KBR argues the motion should be denied
as Eby has failed to provide an affidavit identifying any unavailable facts needed to respond, and
Eby has failed to explain why they need the expert disclosures to respond.
Eby relies on Rule 56(d): “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 affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.” Fed.R.Civ.Pro. 56(d). A party seeking
to defer a ruling on summary judgment must provide an affidavit to “explain why facts
precluding summary judgment cannot be presented.” Comm. for the First Amendment v.
Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992), citing 10A Charles A. Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice & Procedure § 2740 at 530 (1983). The affidavit must
identify (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 the
party to obtain those facts to rebut the motion for summary judgment. Id. Simply stating that
discovery is incomplete is insufficient, the moving party must “state with specificity how the
additional material will rebut the summary judgment motion.” Ben Ezra, Weinstein, and
Company, Inc. v. America, 206 F.3d 980, 987 (10th Cir. 2000). If the moving party argues that
additional discovery is necessary, “the party must demonstrate precisely how additional
discovery will lead to a genuine issue of material fact.” Id.
The Scheduling Order entered in the case at hand sets forth the following deadlines:

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Expert Disclosure for KBR: October 14, 2011
Expert Disclosure for Eby: November 14, 2011
Discovery Deadline: December 16, 2011
Summary Judgment Deadline: February 17, 2012
The remaining issue between the parties is the payment of attorney fees incurred in the Celanese
lawsuit. In their Motion for Summary Judgment, KBR argues that $2,064,866.56 is a reasonable
amount of attorney fees and expenses. KBR included three exhibits in their motion, including
the declaration of an independent expert familiar with the practice of these types of lawsuits and
rates charged for similar work by attorneys (Exhibit C), as well as the affidavit of lead counsel
for KBR (Exhibit A). These two exhibits together number over 150 pages.
Eby requests the Court defer their response to KBR’s motion until 7 days after their
expert disclosure deadline. In support of this request, Eby states that the disclosures are essential
to Eby’s defense on KBR’s damage claim, and the evidence is necessary to rebut the expert
report submitted by KBR. In the affidavit and the motion, Eby states that the fees paid by KBR
in both the underlying action, and in this case, appear to be multiples of the fees paid for the
defense of Eby. Eby argues that until their expert has an opportunity to review the records and
the expert report, they will be unable to adequately address this issue in their response.
Clearly, Eby is not asking for the additional time to delay the case or interrupt discovery.
Eby has identified the probable facts that are not available, namely their expert’s review and
report on KBR’s expert disclosures. Eby’s expert disclosure are not due until November 14.
Eby is not asking for additional time for the expert disclosure, and has adequately explained why
the additional time will allow them to respond to KBR’s motion. Eby has set forth sufficient
facts for this court to find that Eby cannot adequately respond to the summary judgment motion
without their expert disclosures. Eby’s motion is granted.
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IT IS THEREFORE ORDERED that Eby’s Motion to Defer (Doc. 140) is granted.
IT IS FURTHER ORDERED that Eby’s response to KBR’s Motion for Summary
Judgment is due November 21, 2011.
IT IS SO ORDERED this 20th day of October, 2011.

Wesley E. Brown
Senior United States District Court Judge

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