Lupton v. USAgencies Management Services, Inc.
Filing
18
RULING denying 16 Motion for Continuance to Conduct Discovery and For Denial Without Prejudice of Defendant's Motion for Summary Judgment and denying 16 Motion to Continue. Plaintiff shall have until 08/06/2013 to file her opposition to the defendant's Motion for Summary Judgment. Signed by Magistrate Judge Stephen C. Riedlinger on 07/23/2013. (CGP) Modified on 7/23/2013 to edit text (CGP).
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
THELMA J. LUPTON
CIVIL ACTION
VERSUS
NUMBER 12-673-SCR
USAGENCIES MANAGEMENT SERVICES,
INC.
RULING ON PLAINTIFF’S RULE 56(d) MOTION FOR CONTINUANCE
Before the court is the Plaintiff’s Rule 56(d) Motion for
Continuance to Conduct Discovery and For Denial Without Prejudice
of Defendant’s Motion for Summary Judgment. Record document number
16.
The motion is opposed.1
Plaintiff Thelma J. Lupton filed a Complaint on October 24,
2012
alleging
USAgencies
claims
against
Management
her
Services,
former
Inc.,
employer,
for
defendant
retaliation
and
interference with her rights under the Family and Medical Leave Act
(“FMLA”).
The parties filed their Joint Status Report on January
10, 2013, and after the initial scheduling conference was held on
January 24 a case SchedulingOorder was entered.2
deadlines
were
set:
March
1
to
provide
initial
The following
disclosures,
September 2 for fact discovery and filing motions to compel, and
November 1 for filing dispositive motions.
On April 29, 2013 the defendant filed a Motion for Summary
1
Record document number 17.
2
Record document numbers 6 and 9.
Judgment, and on May 9 the plaintiff’s unopposed motion for
extension of time to file her response to the motion was granted,
giving the plaintiff until June 10 to file her opposition.3
Rather
than file an opposition, on June 5 the plaintiff filed this motion
under Rule 56(d), Fed.R.Civ.P.
Rule 56(d) (former Rule 56(f)) provides a tool to keep open
the doors of discovery in order to adequately oppose a summary
judgment motion.
Six Flags Inc. v. Westchester Surplus Lines Ins.
Co., 565 F.3d 948, 963 (5th Cir. 2009).
56(d)
motion
automatically
should
be
granted.
liberally
A
party
Although generally a Rule
granted,
seeking
pursuant to Rule 56(d) must show:
it
should
additional
not
be
discovery
1) how that discovery will
create a genuine issue of material fact; and, 2) that the movant
exercised due diligence in discovery.
Id.;
Culwell v. City of
Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006); Baker v. Am.
Airlines, Inc., 430 F.3d 750, 756 (5th Cir. 2005).
In support of the motion, counsel for the plaintiff submitted
a declaration under oath describing the categories of information
needed
to
oppose
the
defendant’s
summary
judgment
motion.4
Counsel’s declaration did not describe any particular means by
which this information would be obtained, e.g. interrogatories,
document requests or depositions, and it did not identify any
3
Record document numbers 11, 14 and 15.
4
Record document number 16-2.
2
particular persons whose depositions are needed.5
On the issue of
due diligence, the plaintiff argued that the case in its infancy
with the only discovery thus far being the exchange of initial
disclosures.
Plaintiff pointed out that the fact and expert
discovery deadlines have not expired, and the deadline for filing
dispositive motions is not until November 1, 2013.
According to
the plaintiff, she has not had a fair opportunity to obtain the
testimony, information and documents needed to prove her claims and
dispute the defenses raised. Therefore, the defendant’s motion for
summary judgment is premature and an improper attempt to deprive
her of the opportunity to develop her case.
Plaintiff’s argument that she has not had a fair opportunity
to conduct discovery is entirely unsupported.
The record in fact
demonstrates that the plaintiff has had a fair opportunity.
From
the filing of the status report on January 10, 2013 until the
defendant filed its summary judgment the plaintiff had almost four
months to conduct discovery, and the plaintiff has had another five
weeks since the summary judgment motion was filed.
Yet, as of the
date of this Rule 56(d) motion, the plaintiff has not served the
defendant with written discovery requests under Rules 33, 34 or 36,
5
Defendant’s summary judgment motion was supported by the
affidavits of Vallie Dugas, the plaintiff’s former supervisor, and
Natalie Jones, the defendant’s Senior Human Resources Generalist.
Record document numbers 11-4, Exhibit 1, and 11-5, Exhibit 2,
respectively.
3
or noticed the deposition of any witness.6
In her motion the
plaintiff failed to offer any explanation for her total lack of
effort to engage in discovery. No rule of civil procedure or court
order prohibited the plaintiff from conducting discovery either
before the defendant filed its summary judgment motion or after it
was filed
- including taking the depositions of Vallie Dugas and
Natalie Jones.
The record compels the conclusion that the plaintiff has not
exercised due diligence to obtain the discovery needed to support
her claim and oppose the defendant’s motion.
Therefore, the
plaintiff’s request that the court continue the defendant’s motion
or deny it without prejudice until the period for fact discovery
ends is not justified.
Accordingly, the Plaintiff’s Rule 56(d) Motion for Continuance
to
Conduct
Discovery
and
For
Denial
Without
Prejudice
of
Defendant’s Motion for Summary Judgment is denied.
Plaintiff
shall
have
until
August
6,
2013
to
file
her
opposition to the defendant’s Motion for Summary Judgment.
Baton Rouge, Louisiana, July 23, 2013.
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
6
Plaintiff acknowledged this fact in her memorandum.
document number 16-1, p. 2.
4
Record
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