Suretec Insurance Company v. Tyler Construction Group Corporation et al

Filing 32

ORDER denying without prejudice to its refiling 14 Motion for Summary Judgment; and granting 23 56(d) Motion for discovery. Signed by District Judge Carlton W. Reeves on 8/8/17.(rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
SURETEC INSURANCE COMPANY

PLAINTIFF

V.

CAUSE NO. 3:16-CV-00447-CWR-FKB

TYLER CONSTRUCTION GROUP
CORPORATION; CHERYL S.
GAMBLIN; JOSH GAMBLIN; LAMAR
N. GAMBLIN; and FRANCES GAMBLIN

DEFENDANTS

ORDER
Two motions are before the Court. First is plaintiff’s motion for summary judgment.
Second, defendants seek an opportunity to take discovery.1 Finding defendants’ motion well
taken, the Court does not reach the merits of plaintiff’s motion for summary judgment.
A party is entitled to discovery prior to a ruling on a motion for summary judgment, “[i]f
a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.” Fed. R. Civ. P. 56(d). “Rule 56(d) discovery motions are
‘broadly favored and should be liberally granted.’” Biel Loan Co. III-A, LLC v. Lee Freyer
Kennedy Crestview, LLC, No. 1:10-CV-153-HSO-JMR, 2011 WL 1321328, at *1-2 (S.D. Miss.
Apr. 4, 2011) (quoting Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006)). “[T]he
rule is designed to safeguard non-moving parties from summary judgment motions that they
cannot adequately oppose.” Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887,
894 (5th Cir. 2013) (quotation marks and citation omitted).
Defendants ask for discovery to develop and prove their defense that plaintiff waived its
rights to indemnity because it settled claims in bad faith, paid claims it was not obligated to pay,

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Defendants filed their request as a response to plaintiff’s motion for summary judgment. The Court construes their
request to take discovery as its own motion. See Docket Nos. 23, 26, and 27.

and did so over the objection of Tyler Construction. They have invoked the rule and filed the
required declaration.
The Court agrees that defendants should be afforded an opportunity to investigate the
basis upon which SureTec paid claims for which it now seeks indemnity. Discovery is necessary
for responding to plaintiff’s motion for summary judgment as well as developing and proving
defenses to suit. See, e.g., McDougle v. Neshoba Cnty. Miss., No. 3:15-CV-350-CWR-FKB,
2016 WL 83785 (S.D. Miss. Jan. 7, 2016).
Defendants’ motion for discovery is granted. Docket No. 23. Plaintiffs’ motion for
summary judgment is dismissed without prejudice to its refiling. Docket No. 14. The parties
shall contact the Magistrate Judge’s Office within 10 days for entry of a new scheduling order.
SO ORDERED, this the 8th day of August, 2017.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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