Emilio v. Nebraska Department of Correctional Services et al

Filing 62

MEMORANDUM AND ORDER that Plaintiff's Motion for Discovery 57 is denied without prejudice to reassertion of a motion brought pursuant to Rule 56(d). Because Defendants' summary judgment motion has been pending since November 26, 2014, any such motion must be filed by Plaintiff within 30 days in order to be considered by the court. Defendants' Objection 60 is sustained. The clerk's office is directed to set the following case management deadline: February 17, 2015: check for Rule 56(d) motion. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVON EMILIO,
Plaintiff,
v.
ROBERT P. HOUSTON, Director,
FRED BRITTEN, Warden, and L.
ANTHOLZ, Officer,
Defendants.

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4:13CV3088

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion to Compel Discovery
(Filing No. 57) and Defendants’ Objection (Filing No. 60) to the motion. Defendants
argue Plaintiff’s motion should be denied because it was filed two months past the
deadline for filing such motions, and also because Plaintiff failed to comply with the
requirements set forth in Nebraska Civil Rule 7.1(I). The court agrees.
The progression order entered in this case required the parties to serve all
motions to compel by October 29, 2014. (See Filing No. 46.) Plaintiff filed his
motion to compel on December 29, 2014. In addition, the court’s local rules require
the moving party to demonstrate that he consulted with the opposing parties and made
a sincere attempt to resolve the discovery dispute. This showing must “state the date,
time, and place of the communications and the names of all participating persons.”
NECivR 7.1(I). Plaintiff has made no such showing here. Thus, his motion seeking
to compel discovery will be denied, but will be denied without prejudice to reassertion
of a motion brought pursuant to Rule 56(d) of the Federal Rules of Civil Procedure.1

1

Defendants have moved for summary judgment in this case. (See Filing 49.)
Federal Rule of Civil Procedure 56(d) provides that if a nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or deny it; (2) allow time

IT IS ORDERED that:
1.
Plaintiff’s Motion for Discovery (Filing No. 57) is denied without
prejudice to reassertion of a motion brought pursuant to Rule 56(d). Because
Defendants’ summary judgment motion has been pending since November 26, 2014,
any such motion must be filed by Plaintiff within 30 days in order to be considered
by the court.
2.

Defendants’ Objection (Filing No. 60) is sustained.

3.
The clerk’s office is directed to set the following case management
deadline: February 17, 2015: check for Rule 56(d) motion.

to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order. Fed. R. Civ. P. 56(d). Relief under this rule “prevent[s] a party
from being unfairly thrown out of court by a premature motion for summary
judgment.” Hamilton v. Bangs, McCullen, Butler, Foye & Simmons, L.L.P., 687 F.3d
1045, 1050 (8th Cir. 2012) (citation omitted). Although the burden on the party
seeking discovery or delay is not onerous, such party must accompany a Rule 56(d)
motion with an affidavit “set[ting] forth ‘specific facts further discovery might
uncover,’ or what information further discovery might reveal.” Anuforo v. Comm’r of
Internal Revenue, 614 F.3d 799, 808 (8th Cir. 2010) (citation omitted).
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DATED this 15th day of January, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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