Fucich Contracting, Inc. v. Shread-Kuyrkendall and Associates, Incorporated et al

Filing 61

ORDER AND REASONS - IT IS ORDERED that Defendant St. Bernard Parish's 53 motion to continue and request for additional discovery be and hereby is GRANTED. Plaintiff Fucich Contracting, Inc.'s 51 motion for partial summary judgment shal l be submitted on Wednesday, October 31, 2018 to allow time for additional discovery. IT IS FURTHER ORDERED that Defendant St. Bernard Parish's opposition to Plaintiff FCI's motion for partial summary judgment be filed by no later than Tuesday, October 23, 2018. IT IS FURTHER ORDERED that Defendant St. Bernard Parish's 54 motion to expedite be and hereby is DENIED AS MOOT. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FUCICH CONTRACTING, INC.,
Plaintiff

CIVIL ACTION

VERSUS

NO. 18-2885

SHREAD-KUYRKENDALL AND
ASSOCIATES, INCORPORATED, ET AL.,
Defendants

SECTION: “E”(4)

ORDER AND REASONS
On August 14, 2018, Plaintiff Fucich Contracting Inc. (“FCI”) filed a motion for partial
summary judgment seeking a declaration of rights and obligations and a judgment on
Defendant St. Bernard Parish’s counterclaims against it.1 On August 16, 2018, Defendant
St. Bernard Parish moved to continue the submission date for Plaintiff’s motion. 2 It also
moved to expedite consideration of its motion to continue. 3 In its motion to continue, St.
Bernard Parish requests the Court defer consideration of Defendants’ motion to allow time
to conduct depositions.4 The Court will construe St. Bernard Parish’s motion to continue as
an opposition to Plaintiff FCI’s motion for partial summary judgment and a request for
additional discovery under Rule 56(d) of the Federal Rules of Civil Procedure. On August
17, 2018, Plaintiffs filed a memorandum opposing St. Bernard Parish’s request. 5 For the
reasons that follow, the Court GRANTS St. Bernard Parish’s motion to continue and request
for additional discovery, 6 DENIES AS MOOT St. Bernard Parish’s motion to expedite

R. Doc. 51.
R. Doc. 53.
3 R. Doc. 54. On the same day, Defendants Shread-Kuyrkendall and Associates, Inc. (“SKA”) and XL Special
Insurance Company (“XL”) also filed a motion to continue the submission date of Plaintiff’s motion and a motion
to expedite consideration of their motion to continue. R. Doc. 56. The motion submitted by SKA and XL
incorporates St. Bernard Parish’s arguments by reference. Id. This motion is DENIED AS MOOT.
4 R. Doc. 53 at 4–5.
5 R. Doc. 57.
6 R. Doc. 53.
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consideration of its motion to continue,7 and allows St. Bernard Parish to conduct additional
discovery prior to the submission of Plaintiff’s motion for partial summary judgment.
DISCUSSION
Under Rule 56(d) of the Federal Rules of Civil Procedure, 8 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. 9 The Rule is “designed to safeguard against a premature or
improvident grant of summary judgment.” 10
“[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.” 11 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.” 12 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

R. Doc. 54.
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.
9 FED. R. CIV. P. 56(d).
10 Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
11 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)).
12 Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (internal quotation marks and citation omitted).
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pending summary judgment motion.” 13 “Rule 56(d) motions for additional discovery are
broadly favored and should be liberally granted.” 14
The Court finds Defendant St. Bernard Parish has justified its request for a
continuance to allow additional time to conduct discovery. As it points out in its motion,
FCI filed this action on March 19, 2018, 15 less than five months before it filed a partial
summary judgment motion on August 14, 2018. 16 The Court has not entered a scheduling
order in this case, and a scheduling conference is currently scheduled for September 6,
2018. 17 Moreover, St. Bernard Parish has set forth the specific reasons it cannot present
at this time facts essential to justify its opposition. 18 The Court finds Defendant St.
Bernard Parish has demonstrated sufficiently: (1) that it needs additional discovery to
oppose Plaintiff’s motion for partial summary judgment and (2) how the additional
discovery will likely create a genuine issue of material fact. 19
Accordingly;
CONCLUSION
IT IS ORDERED that Defendant St. Bernard Parish’s motion to continue and
request for additional discovery be and hereby is GRANTED. 20 Plaintiff Fucich
Contracting, Inc.’s motion for partial summary judgment shall be submitted on
Wednesday, October 31, 2018 to allow time for additional discovery. 21

Id. (internal quotation marks and citation omitted).
Am. Family Life Assur. Co. v. Biles, 714 F.3d 887, 894 (5th Cir. 2013).
15 R. Doc. 1.
16 R. Doc. 51.
17 R. Doc. 41.
18 R. Doc. 53 at 3–5.
19 See Stearns Airport Equip. Co., 170 F.3d at 534–35.
20 R. Doc. 53.
21 R. Doc. 51.
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IT IS FURTHER ORDERED that Defendant St. Bernard Parish’s opposition to
Plaintiff FCI’s motion for partial summary judgment be filed by no later than Tuesday,
October 23, 2018.
IT IS FURTHER ORDERED that Defendant St. Bernard Parish’s motion to
expedite be and hereby is DENIED AS MOOT.22

New Orleans, Louisiana, this 21st day of August, 2018.
___________ _______ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

22

R. Doc. 54.
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