Larsen v. National Account Systems of Omaha, LLC et al
ORDER that Plaintiff John Larsen's motion to extend (Filing No. 21 ) is granted in part and denied in part. Larsen shall file any responsive brief to the defendants' motion to dismiss on or before December 27, 2017. Any reply of the defend ants shall be filed by January 3, 2018. Larsen's motion to convert and motion to extend time for discovery under Rule 56(d)(2) (Filing No. 20 ) is denied, subject to reassertion at a later time. The parties are ordered to meaningfully and in good faith confer with each other to resolve any discovery issues raised in Larsen's motions. Ordered by Judge Robert F. Rossiter, Jr. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN LARSEN, on behalf of himself and
all others similarly situated,
NATIONAL ACCOUNT SYSTEMS OF
OMAHA, LLC and MATTHEW P.
This matter is before the Court on plaintiff John Larsen’s (“Larsen”) motion to
extend (Filing No. 21) the deadline for Larsen to respond to defendants National Account
Systems of Omaha, LLC and Mathew P. Saathoff’s (collectively, “defendants”) joint
motion to dismiss or certify questions to the Nebraska Supreme Court (Filing No. 14).
Larsen also moves the Court to convert the defendant’s dismissal motion into a summaryjudgment motion pursuant to Federal Rule of Civil Procedure 12(d) and to extend the
time for discovery under Federal Rule of Civil Procedure 56(d)(2) (Filing No. 20). As
Larsen sees it, the defendants’ motion must be converted to a summary-judgment motion
because the “Defendants’ Motion is based entirely on materials outside the pleadings as
well as inaccurate and unwarranted inferences and conclusions drawn from these
affidavits and documents, which [Larsen] must rebut.”
Larsen’s response to the defendants’ motion is currently due November 27, 2017.
According to Larsen, he needs “additional time to conduct discovery” to adequately
respond to the defendants’ motion because “the information necessary to oppose” the
defendants’ motion “is only in the possession of the Defendants and is not readily
available to [Larsen] without discovery.” Larsen requests an additional sixty days or
until January 27, 2018, to respond.
The defendants counter that Larsen “has not shown good cause to justify such an
extraordinary extension.” In the defendants’ view, granting such an extension would
defeat the primary purpose of their motion to dismiss—allowing them to proceed with
pending state-court litigation “without fear of continued federal lawsuits.”
proposed to Larsen an extension of two weeks before he filed the present motions, the
defendants now request “that the Court limit any extension of [Larsen’s] time to respond
to the motion to dismiss to less than one month.”
The defendants also maintain that their dismissal motion need not be converted
into a summary-judgment motion.
According to the defendants, the materials they
submitted in support of their motion to dismiss consist of unpublished court orders,
matters of public record, and matters necessarily embraced by the pleadings. See, e.g.,
Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015). The defendants suggest that if a
credible dispute exists with respect to the authenticity of any of those documents, the
Court should decide their motion to dismiss without them and without any other
documents that would require the Court to convert their motion under Rule 12(d).
Finally, the defendants challenge Larsen’s assertion that the matters raised in their
motion require immediate discovery. The defendants acknowledge that some of the
issues Larsen raises “may be legitimate subjects for discovery” if his claims survive
dismissal but contend those issues “are not matters raised by Defendants through the
Index to their motion to dismiss.”
As an alternative to granting an extension, the
defendants request that the Court order the parties to meet and confer on these issues.
Although the Court is not currently persuaded that the defendants’ motion to
dismiss necessarily depends on matters outside the pleadings or that discovery is
absolutely necessary to effectively respond to that motion, the Court will extend the
deadline by which Larsen has to respond to the defendants’ motion to dismiss to
December 27, 2017. At this early stage, the Court will deny Larsen’s motion to convert
the defendants’ motion to dismiss to a motion for summary judgment and to extend time
for discovery under Rule 56(d)(2), subject to reassertion at a later time. Both parties have
indicated the Court could fairly decide the motion to dismiss by excluding at least some
of the defendants’ supporting materials.
Aside from granting Larsen additional time as requested, the Court declines to
weigh in on the discovery issues presented by Larsen’s motions at this time. Larsen
requests “leave to conduct the discovery for the purposes detailed in” his motion, but
concedes he did not confer with opposing counsel “before moving for the Court’s order.”
Indeed, it appears the parties have neither conferred with each other on the need for
discovery on these issues (or its proper scope) nor attempted to resolve any differences
between them. See NECivR 7.1(i) (“To curtail undue delay in the administration of
justice, this court only considers a discovery motion in which the moving party, in the
written motion, shows that after personal consultation with opposing parties and sincere
attempts to resolve differences, the parties cannot reach an accord.”). Accordingly,
IT IS ORDERED:
Plaintiff John Larsen’s motion to extend (Filing No. 21) is granted in part
and denied in part. Larsen shall file any responsive brief to the defendants’
motion to dismiss on or before December 27, 2017. Any reply of the
defendants shall be filed by January 3, 2018.
Larsen’s motion to convert and motion to extend time for discovery under
Rule 56(d)(2) (Filing No. 20) is denied, subject to reassertion at a later
The parties are ordered to meaningfully and in good faith confer with each
other to resolve any discovery issues raised in Larsen’s motions.
Dated this 21st day of November, 2017.
BY THE COURT:
Robert F. Rossiter, Jr.
United States District Judge
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