Davis et al v. Ricketts et al

Filing 121

ORDER - IT IS ORDERED: Plaintiffs' Motion for Relief Under Fed. R. Civ. P. 56(d) (filing 112 ) is granted, in part. Plaintiffs shall depose Angie Nastase by or before March 12, 2013. Defendants shall provide Plaintiffs with Nastase's con tact information, should they have it, by or before February 21, 2013. Plaintiffs' Motion for Extension of Time to Respond to Defendants' Summary Judgment Motion (filing 117 ) is granted. Plaintiffs shall respond to Defendants' summary judgment motion by or before March 13, 2013. Ordered by Magistrate Judge F.A. Gossett. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICIA J. DAVIS, an Individual,
PATRICIA A. DUNCAN, an
Individual, and JEFFREY J.
GOERGEN,

)
)
)
)
)
Plaintiffs,
)
)
V.
)
)
HUGO ENTERPRISES, LLC, a
)
Nebraska Limited Liability Company, )
and OPPORTUNITY EDUCATION
)
FOUNDATION, an Iowa Non-Profit
)
Corporation,
)
)
Defendants.
)

8:11CV221

ORDER

Plaintiffs have moved, pursuant to Fed. R. Civ. P. 56(d), to conduct limited, expedited
discovery prior to having to respond to Defendants’ motion for summary judgment. (Filing
112.) Plaintiffs have also filed a separate motion for an extension of time to respond to
Defendants’ summary judgment motion. (Filing 117.) For the reasons explained below,
Plaintiffs’ request to conduct additional discovery will be granted, in part, and their motion
for an extension of time to respond to Defendants’ motion for summary judgment will be
granted.
BACKGROUND
In this suit, Plaintiffs allege that they were subjected to a hostile work environment
and that their employment was terminated in retaliation for having complained about
Defendants’ allegedly unlawful employment practices. Plaintiff Jeffrey Goergen
(“Goergen”) worked for Defendant Opportunity Education Foundation (“Opportunity
Education”) in its warehouse from January, 2009, until his termination on or about December
16, 2010.

Goergen’s supervisor in the warehouse was Jayson Graham (“Graham”), Opportunity
Education’s Warehouse and Distribution Manager. In his deposition taken on October 24,
2012, Graham testified that Goergen was terminated because work in the warehouse was
slow during the winter months and that there was little work to be performed in the
warehouse at that time.
Steven Robinson (“Robinson”) currently performs the warehouse duties that Goergen
previously performed. Robinson started working for Opportunity Education in or about
January, 2011, allegedly performing services for Sister Schools Coordinator, Angie Nastase
(“Nastase”), in Opportunity Education’s office. Defendants claim that Robinson did not
begin to perform warehouse services until May, 2011.
Following Graham’s deposition, Plaintiffs served a second set of discovery requests,
requesting Robinson’s timesheets, work schedules and attendance records. Defendants
produced Robinson’s timesheets on December 3, 2012. Upon examination, these timesheets
appear to be the same as those used for warehouse employees. Robinson’s timesheets are
also signed by Graham as manager. Plaintiffs maintain that these timesheets show that
Robinson actually started working in the warehouse in January, 2011, shortly after Goergen’s
termination for alleged lack of work.
In a declaration submitted with Defendants’ motion for summary judgment, Graham
states that because Nastase did not have access to timesheets or invoices for use for
contractors performing office services for Opportunity Education, he provided Nastase
copies of the timesheets he previously used for contractors performing services in the
warehouse. (Filing 113-5.) Graham represents that he signed Robinson’s timesheets during
the period that Robinson performed office duties for Nastase because Nastase was not a
manager at Opportunity Education and, as a result, could not approve contractor timesheets.
(Id.)
DISCUSSION
Plaintiffs request that they be given time to conduct expedited discovery regarding
2

Graham’s declaration before having to respond to Defendants’ motion for summary
judgment. Plaintiffs claim that until Graham’s summary judgment declaration was filed,
Plaintiffs had no reason to believe that Robinson’s timesheets were actually for work
Robinson performed in the office under Nastase’s supervision. Plaintiffs wish to inquire into
Graham’s explanation for Robinson’s timesheets by conducting additional written discovery,
deposing Nastase and Robinson, and reopening Graham’s deposition. Plaintiffs also want
the Court to order Defendants to provide an updated privilege log to include communications
with Nastase and Robinson, as well as communications with Graham since his deposition.
Rule 56(d) generally provides that if a party opposing a motion for summary judgment
shows by affidavit that it cannot present facts essential to justify its opposition, the court may
order a continuance to enable further discovery to be performed. Fed. R. Civ. P. 56(d). In
order to request discovery under Rule 56(d), “a party must file an affidavit describing: (1)
what facts are sought and how they are to be obtained; (2) how these facts are reasonably
expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to
obtain them; and (4) why the affiant’s efforts were unsuccessful.” Ojeda v. Scottsbluff, No.
4:08CV3067, 2009 WL 2990019, *1 (D. Neb. Sept. 16, 2009).
Given the totality of the circumstances here, the Court will allow Plaintiffs to depose
Nastase. Plaintiffs have made clear that they wish to obtain limited information regarding
the representations contained in Graham’s declaration, specifically, the reasons why
warehouse timesheets were used to record Robinson’s time and why Graham signed the
timesheets, rather than Nastase. It appears to the Court that this information can obtained by
simply deposing Nastase and, at this point, the Court does not see a need to depose Robinson,
reopen Graham’s deposition or conduct any further written discovery. The Court notes that
additional information gained from Nastase’s deposition may actually help resolve factual
disputes relating to the motion for summary judgment.
Plaintiffs’ request for additional time to respond to Defendants’ motion for summary
judgment will likewise be granted. Given the lengthy filings associated with Defendants’
summary judgment motion, as well as Plaintiffs’ present desire to conduct additional
discovery, the Court finds that an extension is appropriate.
3

Accordingly,
IT IS ORDERED:
1.

Plaintiffs’ Motion for Relief Under Fed. R. Civ. P. 56(d) (filing 112) is
granted, in part. Plaintiffs shall depose Angie Nastase by or before March 12,
2013. Defendants shall provide Plaintiffs with Nastase’s contact information,
should they have it, by or before February 21, 2013.

2.

Plaintiffs’ Motion for Extension of Time to Respond to Defendants’ Summary
Judgment Motion (filing 117) is granted. Plaintiffs shall respond to
Defendants’ summary judgment motion by or before March 13, 2013.

DATED February 19, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

4