Serrano et al v. Otis Elevator Company et al

Filing 44

ORDER AND REASONS granting in part 26 Motion for Summary Judgment as per herein. Signed by Judge Sarah S. Vance on 4/26/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANGIE SERRANO, ET AL.

CIVIL ACTION

VERSUS

NO. 16-15460

OTIS ELEVATOR COMPANY, ET AL.

SECTION “R” (4)

ORDER AND REASONS
Defendant Interstate Management Company, LLC moves for summary
judgment on plaintiffs Angie Serrano and Nelly Briceno’s claims.1

In

addition to responding to defendant’s motion, plaintiffs move the Court to
delay or defer consideration of defendant’s motion so that plaintiffs can
obtain additional discovery. 2 Federal Rule of Civil Procedure 56(d) governs
requests for additional time for discovery before consideration of a pending
motion for summary judgment. It permits a district court to deny or defer
consideration of a motion for summary judgment, allow time to take
discovery, or “issue any other appropriate order” when “a nonmovant shows
by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.”

1
2

R. Doc. 26.
R. Doc. 32 at 4-5.

Fed. R. Civ. P. 56(d). Nonetheless, the

party seeking a continuance “may not simply rely on vague assertions that
additional discovery will produce needed, but unspecified, facts.” Raby v.
Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (quoting Sec. & Exch. Comm’n
v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). Instead,
the party seeking to continue a motion for summary judgment to obtain
further discovery must demonstrate (1) “why he needs additional discovery”
and (2) “how the additional discovery will create a genuine issue of material
fact.” Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). In
other words, the plaintiff must identify specific facts, susceptible of
collection, and indicate how those facts “‘will influence the outcome of the
pending summary judgment motion.’” McKay v. Novartis Pharm. Corp.,
751 F.3d 694, 700 (5th Cir. 2014) (quoting Raby, 600 F.3d at 561)).
Defendant Interstate asserts it is entitled summary judgment because
it argues it is immune to plaintiffs’ claims pursuant to the “two-contract
theory” under the Louisiana Workers’ Compensation Act. Plaintiffs’ Rule
56(d) motion points out that plaintiffs have not been given the full contracts
at issue, and plaintiffs argue that once they have the full contracts they will
have evidence creating a dispute of material fact.
Interstate has not submitted the full Hotel Management Agreement
between itself and Canal Place Borrowers, the entity that owns the hotel. In
2

its previous opposition to plaintiffs’ motion to remand, Interstate
acknowledged that it had not submitted the full copy, but stated that it did
not do so because the agreement contained “financial and proprietary
information” which is “confidential in light of the competitive nature of the
hotel management industry.” 3
The Court finds that the full copy of the Hotel Management may
contain information that could create an issue of material fact as to the
applicability of the two-contract theory to this case. Therefore, the Court
grants plaintiffs’ Rule 56(d) motion in part and will defer consideration of
Interstate’s motion for summary judgment. Interstate is ordered to submit
to plaintiffs, and to file in the record within seven days of the date of entry of
this order, a full copy of the Hotel Management Agreement. Interstate may
redact confidential financial and proprietary information regarding rates
charged, but the rest of the contract, in particular provisions on defense,
indemnity, and insurance obligations, must be submitted.
As to the remainder of plaintiffs’ Rule 56(d) motion, plaintiffs also
argue that “depositions of fact witnesses familiar with plaintiffs’ job duties
and with the use of the elevator at issue” will demonstrate a genuine issue of
fact on whether plaintiffs were injured in the course and scope of their

3

R. Doc. 9 at 3 n.4.
3

employment. 4

As explained in the Court’s order on plaintiffs’ remand

motion, plaintiffs’ own statements indicate that their injuries occurred while
they were in the course and scope of their employment. 5 But even if the
evidence were ambiguous on this issue, plaintiffs not only fail to identify
these fact witnesses or what specific information they would testify to that
would create an issue of fact, but also plaintiffs surely possess within their
own personal knowledge information on their job duties and the use of the
elevator. Plaintiffs have made no argument as to what information these
unidentified witnesses possess that plaintiffs do not, or why their testimony,
but not an affidavit from either plaintiff, would create an issue of fact. As
such, plaintiffs’ argument that additional discovery will create an issue of fact
on course and scope of employment is nothing more than a vague,
speculative assertion.
Because Rule 56(d) “does not condone a fishing expedition where a
plaintiff merely hopes to uncover some possible evidence of [value],” Duffy
v. Wolle, 123 F.3d 1026, 1041 (8th Cir. 1997) (internal quotation omitted),
the Court will not defer or delay consideration of Interstate’s motion so that
plaintiffs can depose these unidentified fact witnesses. See Jason v. Parish

4
5

R. Doc. 32 at 5.
See. R. Doc. 19 at 13-15.
4

of Plaquemines, No. 16-2728, 2016 WL 4623050, at *4-5 (E.D. La. Sept. 6,
2016) (denying plaintiff’s request to defer consideration of motion for
summary judgment because plaintiff gave “nothing more than a ‘speculative
hope’ that discovery might provide plaintiff with information supporting his
claims”) (quoting Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d
1560, 1567 (Fed. Cir. 1987)).
Thus, plaintiffs’ Rule 56(d) motion is GRANTED IN PART solely as to
the undisclosed portions of the Hotel Management Agreement.

After

Interstate submits the full agreement, plaintiffs shall have seven days to brief
any new arguments that arise from the submission of the full agreement, but
plaintiffs will not be permitted to rehash arguments it has already submitted
before the Court. Interstate shall have seven days from the date of plaintiffs’
brief to respond. There will be no replies. The remainder of plaintiffs’ Rule
56(d) motion is DENIED.

26th
New Orleans, Louisiana, this _____ day of April, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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