Rutledge v. Elliot Health System et al

Filing 47

///ORDER granting in part and denying without prejudice in part 32 Motion for Summary Judgment. Granted as to Count II, wrongful termination, and is otherwise denied without prejudice. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lonnie Rutledge
v.

Civil No. 17-cv-110-JD
Opinion No. 2018 DNH 062

Elliot Health System
and Elliot Hospital
O R D E R
Lonnie Rutledge brings claims against her former employer,
Elliot Health System and Elliot Hospital, for age discrimination
and wrongful termination.

The defendants moved for summary

judgment on the grounds that Rutledge cannot prove her claims.
Rutledge objected to summary judgment as to her claim of age
discrimination, Count I, but did not contest summary judgment as
to her wrongful termination claim, Count II.
As a fallback position, Rutledge also asked the court to
defer ruling on the motion, if her objection were deemed to be
insufficient to avoid summary judgment.

She argues that the

parties’ discovery disputes have delayed production of some
material information and delayed the deposition of an important
nonparty witness.

The defendants object to deferring the ruling

on summary judgment.
A.

Relief under Rule 56(d)

Rule 56(d) provides a means for the nonmoving party to
avoid summary judgment when that party “cannot present facts

essential to justify its opposition.”

As such, Rule 56(d),

“protects a litigant who justifiably needs additional time to
respond in an effective manner to a summary judgment motion.”
In re PHC, Inc. S’holder Litig., 762 F.3d 138, 143 (1st Cir.
2014) (internal quotation marks omitted).

A party requesting

relief under Rule 56(d) must show by affidavit or declaration
the reasons that she cannot present facts essential to summary
judgment.

Fed. R. Civ. P. 56(d).

Rutledge argues both that the defendants are not entitled
to summary judgment, based on the existing facts, and that she
needs additional discovery to effectively oppose summary
judgment.

Rutledge’s counsel provided his affidavit in which he

represents that the patient chart and information about the
Exceptional Beginnings Quality Review Committee investigation,
which were addressed in Rutledge’s motion to compel, are
necessary to oppose the motion.

Counsel also states that the

patient chart is a necessary predicate for a deposition of a
nurse midwife who was involved in the patient’s care.

Counsel

contends that the cited information is relevant to the issue of
whether the defendants’ reason for terminating Rutledge was
pretext for age discrimination.
In their reply, the defendants argue that Rule 56(d) does
not provide relief here because Rutledge caused the delay in
obtaining the patient chart and the deposition of the nurse
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midwife, identified as Christine Isabella.

The defendants note

that discovery closed on February 1 and that Rutledge has not
moved to extend the discovery deadline, which has now passed.
The defendants also argue that the deposition of Isabella would
not provide any material information.
Rutledge’s contradictory positions, objecting to summary
judgment based on disputed material facts and at the same time
seeking to defer a ruling, might be construed to undermine her
asserted grounds for deferral.

See Morse v. TBC Retail Gr.,

Inc., 2013 WL 6730107, at *2 (D.N.H. Dec. 19, 2013) (citing C.B.
Trucking, Inc. v. Waste Mgmt., Inc., 137 F.3d 41, 44 (1st Cir.
1998), and noting that “absent unusual circumstances, a party
cannot object (on substantive grounds) to a pending motion for
summary judgment, while also seeking time for additional
discovery if that objection proves unavailing”).

Nevertheless,

courts are expected to apply Rule 56(d) “generously, holding
parties to the rule’s spirit rather than its letter.”

In re

PHC, Inc., 762 F.3d at 143 (internal quotation marks omitted).
Courts in this circuit are directed to “refrain from
entertaining summary judgment motions until after the parties
have had a sufficient opportunity to conduct necessary
discovery.”

Velex v. Awning Windows, Inc., 375 F.3d 35, 39 (1st

Cir. 2009).

That is because “when a party moves for summary

judgment, the opposing party must be afforded a fair chance to
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obtain and synthesize available information before being
required to file an opposition.”

Id.

The parties in this case have been embroiled in prolonged
discovery disputes that have generated three motions to compel.
On March 7, the same day that Rutledge filed her objection to
the motion for summary judgment, the court granted in part and
denied in part the third motion to compel.

The parties were

ordered to file a motion for a protective order that would allow
the defendants to produce the requested patient chart.

The

defendants were ordered to produce the Committee’s records of
its investigation into Rutledge’s actions and patient care on
May 22, 2014.

Rutledge’s request to compel the defendants to

make and produce summaries of information from the Committee’s
records was denied.
Pursuant to the protective order and the court’s March 7
order, Rutledge has or will soon have the patient chart and the
Committee records, which counsel represents are necessary for
purposes of opposing summary judgment.

For that reason,

Rutledge is granted relief under Rule 56(d).
B.

Schedule

Under the current scheduling order, discovery closed on
February 1, 2018.

The deadline for dispositive motions was

February 5, 2018.

The trial is scheduled for the period

beginning on June 5, 2018.
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Rutledge has not moved to modify the scheduling order to
extend any deadlines, although counsel acknowledges that the
delay he requests may cause the trial date to be continued.
Fed. R. Civ. P. 16(b)(4).

See

To allow time for Rutledge and the

defendants to address any issues raised by the additional
discovery that the court ordered the defendants to produce in
the order of March 7, the pending motion for summary judgment
will be granted in part, and denied in part without prejudice to
filing a second motion for summary judgment as provided below.

Conclusion
For the foregoing reasons, the defendants’ motion for
summary judgment (document no. 32) is granted as to Count II,
wrongful termination, and is otherwise denied without prejudice.
The defendants may file a second motion for summary
judgment on or before April 9, 2018.
If a second motion for summary judgment is filed, the trial
will be rescheduled for the trial period beginning on September
5, 2018, to allow sufficient time to address the motion and for
mediation if the motion is denied.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 20, 2018
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cc:

Debra Weiss Ford, Esq.
Samuel V. Maxwell, Esq.
Leslie C. Nixon, Esq.
David P. Slawsky, Esq.
Martha Van Oot, Esq.

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