Stark v. University of Southern Mississippi et al

Filing 86

ORDER denying 81 Motion for Reconsideration. Signed by District Judge Keith Starrett on 10/21/2013 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
DIANE STARK
V.

PLAINTIFF
CIVIL ACTION NO. 2:13cv31-KS-MTP

UNIVERSITY OF SOUTHERN MISSISSIPPI,
JEFF HAMMOND, INDIVIDUALLY AND OFFICIALLY,
DR. MARTHA SAUNDERS, INDIVIDUALLY AND OFFICIALLY;
BOARD OF TRUSTEES OF STATE INSTITUTIONS OF
HIGHER LEARNING

DEFENDANTS

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter is before the Court on the Plaintiff Diane Stark’s Motion for
Reconsideration [81]. Plaintiff requests that the Court reconsider its prior ruling,
denying her Motion for Relief Pursuant to FRCP Rule 56(d) and Local Rule 16 [74].
(See Mem. Op. & Order [80].) That motion asserted that the Plaintiff needed time to
conduct discovery before responding to Defendant Dr. Martha Saunders’ Motion to
Dismiss [62] pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff’s request for reconsideration is not well taken. No authority cited by the
Plaintiff in support of her original motion or her reconsideration motion holds that a
plaintiff is entitled to conduct discovery before responding to a defendant’s request for
dismissal under Rule 12(b)(6).1 Furthermore, Plaintiff’s position that her time to respond
to Defendant Saunders’ dismissal motion should be stayed pending the completion of
discovery borders on frivolity. Defendant Saunders’ Rule 12(b)(6) request for dismissal
centers on the adequacy of Plaintiff’s pleadings and not whether the absence of fact

1

In that vein, Plaintiff would do well to review the current version of Local Uniform
Civil Rule 16, which leaves the decision on whether to permit discovery related to an
immunity defense “to the discretion of the court.” L.U.Civ.R. 16(b)(3)(B).

issues in the discovery record mandates the entry of summary judgment. See
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (distinguishing the
relevant inquiry as between a motion to dismiss and a motion for summary judgment).
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion for
Reconsideration [81] is denied.
SO ORDERED AND ADJUDGED this the 21st day of October, 2013.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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