Dennis v. ESS Support Services Worldwide et al

Filing 53

ORDER AND REASONS denying without prejudice 40 Motion for Summary Judgment. IT IS FURTHER ORDERED that counsel for the parties work in good faith to schedule a deposition of Dr. Bostick, to take place no later than Wednesday, June 1, 2016. The d eadline for plaintiff to depose Dr. Bostick will not be extended, except for good cause shown. As soon as the deposition of Dr. Bostick has been taken and before the deadline for pretrial motions has passed, ESS may re-urge its motion for summary ju dgment by filing a supplemental memorandum in support of its motion 40 . Upon the filing of such a supplemental memorandum by ESS, the Clerk of Court shall mark R. Doc. 40 as awaiting disposition. Plaintiff shall have ten calendar days to reply to such a supplemental memorandum by ESS, at which point the re-urged motion for summary judgment will go under submission on the briefs and without oral argument.. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORDON DENNIS,
Plaintiff

CIVIL ACTION

VERSUS

No. 15-690

ESS SUPPORT SERVICES
WORLDWIDE, ET AL
Defendants

SECTION "E"(4)

ORDER AND REASONS
Before the Court is the “Motion for Summary Judgment on Plaintiff’s
Maintenance and Cure Claims” filed by Defendant, S.H.R.M. Catering Services, Inc. d/b/a
Eurest Support Services (“ESS”). 1 ESS seeks summary judgment on Plaintiff’s
maintenance-and-cure claim under the Fifth Circuit’s decision in McCorpen v. Central
Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968), as well as a number of other asserted
defenses. 2 Plaintiff timely opposed the motion and the Court later granted plaintiff leave
to file a supplemental memorandum in opposition. 3 The Court also granted ESS leave to
file a reply in support of its motion. 4
In both of its filed oppositions, plaintiff requests additional time to obtain
deposition testimony of plaintiff’s currently treating physician, Dr. Bostick, as to whether
plaintiff’s current ankle injury is related to a previous ankle injury that ESS asserts
plaintiff intentionally concealed. 5

R. Doc. 40.
See R. Doc. 40-1.
3 See R. Docs. 42 & 48.
4 R. Docs. 50 & 51.
5 See R. Docs. 42 at 3 & 48 at 2 (plaintiff’s request for additional time for discovery); see also R. Doc. 40-1
at 13 (defendant’s argument regarding intentional concealment).
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2

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In the present case, the deadline for discovery is September 13, 2016, and the
deadline for pretrial motions is one week later. 6 Rule 56(d) permits a Court to order
further discovery upon a showing by the nonmoving party that, “for specified reasons, it
cannot present facts essential to justify its opposition.” 7 The Fifth Circuit has stated that
a district court has broad discretion over discovery matters; however, should liberally
grant requests for additional discovery where the nonmovant has shown “(1) why
additional discovery is necessary and (2) how the additional discovery will likely create a
genuine issue of material fact.” 8
Plaintiff contends that a deposition of Dr. Bostick “is necessary to the issue of
whether or not there is a causal link between the prior and current injury.” 9 Plaintiff
contends Dr. Bostick can compare pre- and post-incident radiographic images and give
an opinion as to whether plaintiff’s two ankle injuries are related. 10 Plaintiff represents
that he is trying to schedule a deposition of Dr. Bostick. 11 ESS’ reply does not address
plaintiff’s contentions regarding the need to depose Dr. Bostick. 12
Given the liberal policy favoring discovery in instances such as this, the ample
amount of time remaining before the passing of the discovery deadline, and plaintiff’s
specified argument as to the exact discovery needed for plaintiff to present its arguments
against ESS’ motion for summary judgment, the Court finds it appropriate to defer its

R. Doc. 41.
FED. R. CIV. P. 56(d).
8 Danos v. Union Carbide Corp., 541 Fed. Appx. 464, 467 (5th Cir. 2013) (citing Stearns Airport Equip.
Co. v. FMC Corp., 170 F.3d 518, 534 (5th Cir. 1999)) (internal quotation omitted).
9 R. Doc. 42 at 3.
10 Id. at 6.
11 Id. at 3.
12 R. Doc. 51.
6
7

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consideration of ESS’ motion. However, the Court will not permit plaintiff to delay in
scheduling the deposition of Dr. Bostick.
Accordingly,
IT IS ORDERED that ESS’ motion for summary judgment is DENIED
WITHOUT PREJUDICE. The Clerk of Court may mark R. Doc. 40 as no longer
pending;
IT IS FURTHER ORDERED that counsel for the parties work in good faith to
schedule a deposition of Dr. Bostick, to take place no later than Wednesday, June 1,
2016. The deadline for plaintiff to depose Dr. Bostick will not be extended, except for
good cause shown. As soon as the deposition of Dr. Bostick has been taken and before the
deadline for pretrial motions has passed, ESS may re-urge its motion for summary
judgment by filing a supplemental memorandum in support of its motion (R. Doc. 40).
Upon the filing of such a supplemental memorandum by ESS, the Clerk of Court shall
mark R. Doc. 40 as awaiting disposition. Plaintiff shall have ten calendar days to reply to
such a supplemental memorandum by ESS, at which point the re-urged motion for
summary judgment will go under submission on the briefs and without oral argument.

New Orleans, Louisiana, this 28th day of April, 2016.
__________ __________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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