Center For Restorative Breast Surgery, L.L.C. et al v. Blue Cross Blue Shield of Louisiana et al

Filing 713

ORDER AND REASONS denying 712 Motion for Discovery FRCP 56(d) to Allow Time for Limited Discovery and to Allow Certain Relevant Discovery. IT IS FURTHER ORDERED that Plaintiffs respond to the Defendants' motion for summary judgment by March 8, 2017. The Defendants may file a reply memorandum within seven days of the filing of Plaintiffs' opposition. Signed by Judge Susie Morgan on 2/15/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CENTER FOR RESTORATIVE
BREAST SURGERY, L.L.C., ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 11-806

BLUE CROSS BLUE SHIELD
OF LOUISIANA, ET AL.,
Defendants

SECTION: “E” (5)

ORDER AND REASONS
Before the Court is Plaintiffs’ motion for additional discovery under Rule 56(d).1
On January 27, 2017, Defendants filed a motion for summary judgment with
respect to the causation element of Plaintiffs’ negligent misrepresentation claims. 2 In
response, Plaintiffs filed this motion pursuant to Rule 56(d), seeking additional time to
conduct discovery for the purpose of opposing Defendants’ motion for summary
judgment.3
Under Rule 56(d) of the Federal Rules of Civil Procedure,4 if a party opposing a
motion for summary judgment shows, by way of affidavit or declaration, that for some
specific reason it cannot present facts essential to justify its opposition, the Court may
defer consideration of the summary judgment motion, deny it, allow time for the nonmoving party to obtain affidavits or declarations or to take discovery, or issue any other
appropriate order.5 The Rule is “designed to safeguard against a premature or

R. Doc. 712.
R. Doc. 709.
3 R. Doc. 712.
4 On December 1, 2010, the provisions of former subdivision (f) of Rule 56 were carried forward, without
substantial change, to subdivision (d). Accordingly, while case law prior to this change references Rule 56(f)
instead of Rule 56(d), those pre-2010 cases still hold precedential and persuasive value and are fully
applicable to this case.
5 Fed. R. Civ. P. 56(d).
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improvident grant of summary judgment.”6
“[T]o justify a continuance, the [Rule 56(d)] motion must demonstrate (1) why the
movant needs additional discovery, and (2) how the additional discovery will likely create
a genuine issue of material fact.”7 In requesting a Rule 56(d) motion, a plaintiff “may not
simply rely on vague assertions that additional discovery will produce needed, but
unspecified, facts.”8 Rather, the plaintiff “must set forth a plausible basis for believing
that specified facts, susceptible of collection within a reasonable time frame, probably
exist and indicate how the emergent facts, if adduced, will influence the outcome of the
pending summary judgment motion.”9 A party is not entitled to a Rule 56(d) continuance
if it has not diligently pursued discovery.10
The Court finds Plaintiffs have failed to justify the need for a continuance to allow
additional time to conduct discovery. Specifically, Plaintiffs have not shown they have
diligently pursued discovery in this case, filed in 2011, with respect to the causation
element of their negligent misrepresentation claims. Nor have Plaintiffs demonstrated to
the Court what facts regarding causation they believe probably exist or how those facts
will influence the pending summary judgment motion, as required under Rule 56(d).
The Defendants seek summary judgment with respect to Plaintiffs’ negligent
misrepresentation claims, arguing the undisputed facts show the statements made on the
verification calls did not cause the Plaintiffs any harm.11 First, the testimony and evidence

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534–35 (5th Cir. 1999) (citing Krim v. BancTexas
Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993)).
8 Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (internal quotation marks and citation omitted).
9 Id. (internal quotation marks and citation omitted).
10 See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1397 (5th
Cir. 1994).
11 R. Doc. 709.
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presented at trial established the Plaintiffs’ uniform and consistent business practice was
to provide services regardless of whether a patient’s benefits were verified through the
verification calls.12 Second, Defendants routinely play disclaimers before the verification
calls, providing that no information on the call would constitute a guarantee of payment.13
Third, for many claims, there is no evidence that Plaintiffs made a verification call to the
Defendants, or Plaintiffs utilized only iLinkBLUE online coverage summaries.14
At trial, the Plaintiffs’ representatives testified that they provide healthcare
services to all patients, regardless of whether a verification call was made. No testimony
was provided with respect to the services provided to any individual plaintiff. Therefore,
individual discovery with respect to causation is unlikely to create a genuine issue of
material fact, and the Plaintiffs’ motion must be denied.
IT IS ORDERED that the Plaintiffs’ Rule 56(d) motion for additional discovery15
is DENIED.
IT IS FURTHER ORDERED that Plaintiffs respond to the Defendants’ motion
for summary judgment16 by March 8, 2017. The Defendants may file a reply
memorandum within seven days of the filing of Plaintiffs’ opposition.
New Orleans, Louisiana, this 15th day of February, 2017.
______________ _______ _ _______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

R. Doc. 709-1 at 4.
Id.
14 Id.
15 R. Doc. 712.
16 R. Doc. 709.
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