Tracey v. St. Jude Medical, Inc.

Filing 118

ORDER that plaintiff's Rule 56(d) Motion for Extension of Time to Respond to Defendant's Motion for Summary Judgment (Filing No. 99 ) is denied. The plaintiff shall have until December 18, 2015, to file a response to the defendant's Motion for Summary Judgment (Filing No. 94 ). Ordered by Magistrate Judge Thomas D. Thalken. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LISA TRACEY,
Plaintiff,

8:14CV198

vs.
ORDER
ST. JUDE MEDICAL, INC.,
Defendant.
This matter is before the court on the plaintiff’s Rule 56(d) Motion for Extension of
Time to Respond to Defendant’s Motion for Summary Judgment (Filing No. 99). The
plaintiff filed a brief (Filing No. 100) and an index of evidence (Filing No. 101) in support
of the motion. The defendant filed a brief (Filing No. 103) and an index of evidence
(Filing No. 104) opposing the motion. The plaintiff filed a brief (Filing No. 112) in reply.
The defendant filed a brief (Filing No. 115) and index of evidence (Filing No. 116) in surreply, with leave of court.
The plaintiff seeks a ninety-day extension of time to file a response to the
defendant’s Motion for Summary Judgment. See Filing No. 99. The plaintiff states, that
“[a]lthough [she] is confident she can defeat summary judgment with the evidence now
in her possession” she requests time to conduct additional discovery on issues raised in
the summary judgment motion and other issues.

See Filing No. 100 - Brief p. 2.

Specifically, the plaintiff wishes to depose five fact witnesses who have “knowledge and
information which may raise genuine issues of material fact and which will corroborate
Plaintiff’s testimony in this matter.”

Id.

The plaintiff explains a protective order

previously prevented her from taking the depositions of three of the proposed
deponents. Id. at 3, 9. The plaintiff failed to depose the other two proposed deponents
based on agreements with opposing counsel or personal decisions. Id. at 6-7, 10.
The defendant opposes any extension of time to complete additional discovery.
See Filing No. 103 - Response. The defendant argues the plaintiff seeks only delay and
cannot identify any testimony from the proposed deponents which would create a
genuine issue of material fact. Id. at 1. The defendant suggests the parties differ on
their opinions about what evidence is necessary. Id. at 1-2. The defendant contends

the evidence relevant to the summary judgment motion is whether the plaintiff, herself,
reasonably believed and reported alleged fraud based on information she had at the
time, rather than whether the defendant actually engaged in fraud, which was unknown
to the plaintiff. Id. Accordingly, three of the witnesses sought by the plaintiff remain
irrelevant. The defendant asserts it has attempted to schedule the other two deponents
repeatedly in an attempt to avoid delay. Id. at 2.
The plaintiff seeks additional time to respond to the defendant’s motion for
summary judgment for purposes of obtaining additional discovery as permitted under
Federal Rule of Civil Procedure 56(d), which provides:
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 to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).
Generally, Rule 56(d) suggests “summary judgment is proper only after the
nonmovant has had adequate time for discovery.” Ray v. Am. Airlines, Inc., 609 F.3d
917, 923 (8th Cir. 2010) (citation omitted). Where, as here, the parties have had ample
opportunity to complete discovery, the party seeking delay must “identify specific facts
that further discovery might uncover and show how those facts would rebut [the
defendant’s] showing of the absence of genuine issues of material fact.” Chambers v.
Travelers Companies, Inc., 668 F.3d 559, 568 (8th Cir. 2012).
The plaintiff’s own brief states her belief she “is confident she can defeat
summary judgment with the evidence now in her possession” and she merely seeks to
buttress her evidence and discover corroborating existing evidence. Additionally, the
plaintiff suggests she wants to complete discovery on many topics, even those
unrelated to summary judgment, prior to filing a response. The plaintiff fails to identify
specific facts and show how those facts are essential to justify her opposition to
summary judgment.

By contrast, the plaintiff raises issues previously raised in her

motion to compel, which this court denied by order and the plaintiff’s objections to the
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order were overruled. See Filing Nos. 65 and 86 (holding “the court cannot determine
the relevance of the information the plaintiff seeks”). While the court left open whether
the plaintiff may reassert the discovery requests upon a future proper showing,
summary judgment need not wait. At this time the court will not determine the likelihood
the plaintiff will be allowed to depose the three non-parties named by the plaintiff
because she has thus far failed to make a proper showing. The discovery dispute did
not hinder the plaintiff from taking the remaining two proposed deponents’ depositions,
which the plaintiff was free to schedule before or after the court’s discovery order.
Additionally, the plaintiff argues the defendant’s motion for summary judgment is
premature because the discovery deadline has not expired. See Filing No. 112 - Reply
p. 2. Contrary to her argument, the defendant filed its motion for summary judgment on
the deadline imposed by the court, after a three-month extension the deadline. See
Filing Nos. 31, 72, 94.

Moreover, the court intentionally scheduled the discovery

deadline after the summary judgment deadline to allow the parties ample time to
complete discovery and prepare for trial, while also giving the court time to resolve the
motion. At the commencement of discovery, on September 18, 2014, the court warned
the parties “discovery required to prepare the case for possible summary judgment
disposition shall be conducted before other discovery.”
Progression Order ¶ 1.

See Filing No. 14 - Initial

Finally, the defendant asserts its counsel made numerous

attempts to schedule depositions because it was concerned about the delay which may
befall summary judgment. See Filing No. 103 - Response p. 2. Accordingly, the plaintiff
has had ample opportunity to engage in discovery, which remains ongoing, despite the
defendant’s timely motion for summary judgment. Furthermore, the plaintiff may also
make the arguments she raised here in conjunction with her opposition to summary
judgment or seek leave of court to supplement her response upon discovery of relevant
and necessary evidence. Upon consideration,

IT IS ORDERED:
The plaintiff’s Rule 56(d) Motion for Extension of Time to Respond to Defendant’s
Motion for Summary Judgment (Filing No. 99) is denied. The plaintiff shall have until

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December 18, 2015, to file a response to the defendant’s Motion for Summary
Judgment (Filing No. 94).
Dated this 2nd day of December, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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