Rel v. Board of Regents of New Mexico State University et al
MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack DENYING WITHOUT PREJUDICE 7 MOTION for Judgment on the Pleadings on Count II MOTION for Summary Judgment on Plaintiff's Amended Complaint AND GRANTING 23 Second MOTION for Supplement , IT IS FURTHER ORDERED that the Court DENIES Defendants Motion for Summary Judgment (Doc. 7) WITHOUT PREJUDICE with leave to refile. (yc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CIV 2:20-cv-00251
BOARD OF REGENTS OF NEW MEXICO STATE
UNIVERSITY, and TERESA BURGIN,
MEMORANDUM OPINION AND ORDER
Three factors ultimately swayed the Court to grant Ms. Rel’s Rule 56(d) motion: the unique
posture of the case, the greater detail of the third affidavit, and the fact that Ms. Rel has not been
given an opportunity to pursue certain discovery in this forum. Because of these issues, the Court
will grant the motion.
The Supplemental Affidavit of Brett Duke sufficiently alleged that evidence is
not available to Ms. Rel.
The Supplemental Affidavit of Brett Duke (“the Affidavit”), goes into much greater detail
than his previous iterations. (Compare Doc. 23-1, with Doc. 9.) In it Mr. Duke details: (1)
“probable facts not available” to Ms. Rel (see Doc. 23-1 at 4–5; 6; 7; 9–10); (2) “why those facts
cannot be presented currently [without discovery]” (see id. at 11) (stating that Ms. Rel cannot
present sufficient evidence to prove her claims because the needed facts “relate to Defendants’
decisions, motivations, policies, and practices, and therefore are exclusively within the knowledge
and possession of Defendants themselves”); (3) “what steps have been taken to obtain these facts”
(see id.) (stating that Ms. Rel conferred with Defendants’ counsel multiple times to obtain
depositions to no avail); and (4) “how additional time will enable [Ms. Rel] to obtain those facts
and rebut the motion for summary judgment” (see id. at 3; 5; 6; 7; 8; 9; 10.) See Valley Forge Ins.
Co. v. Health Care Mgt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010) (quoting Comm.
for the First Amend. v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992)) (internal quotation
marks and subsequent citation omitted). Though Defendants state, in a conclusory fashion, that
“[t]hese are not the kinds of specific, focused facts for which Rule 56(d) relief is available” (Doc.
24 at 6–7), the Court concludes that the affidavit sufficiently addresses earlier concerns. Therefore,
the Court determines that the Affidavit satisfies the four threshold requirements for granting relief
pursuant to Rule 56(d).
Ms. Rel was not dilatory.
Having concluded that the Affidavit satisfies the requirements for granting relief pursuant
to Rule 56(d), the Court must now determine whether Ms. Rel was dilatory in obtaining the
necessary facts. Even if the Affidavit satisfies the Rule 56(d) requirements, the Tenth Circuit has
held that “if the party filing the Rule 56([d]) affidavit has been dilatory, or the information sought
is either irrelevant to the summary judgment motion or merely cumulative, no extension will be
granted.” Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984); see
also Jensen v. Redevelopment Agency, 998 F.2d 1550, 1553–54 (10th Cir. 1993) (“Unless dilatory
or lacking in merit,” a party’s 56(d) request “should be liberally treated.”) (quoting Comm. for the
First Amend. v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992). The Court holds that Ms. Rel
was not dilatory.
Defendants argue that because Ms. Rel failed to pursue depositions for two months
(December 2019 and January 2020), her actions were dilatory. (Doc. 24 at 9.) The Court is not
persuaded. Ms. Rel served notices of depositions on September 24, 2019, scheduling the
depositions for October 24, 2019, but the depositions did not occur at the Defendants’ request.
(Doc. 9-3 at 1.) Because Ms. Rel extended Defendants the courtesy of pushing back scheduled
depositions, the Court finds her actions show a good faith effort to further the litigation process.
She was not dilatory. See Chadwick v. Denver Pub. Sch. Dist., No. 09-CV-01616-WYD-KLM,
2011 WL 834186, at *5 (D. Colo. Mar. 4, 2011) (stating that the plaintiff was dilatory by not
making any effort to conduct depositions); Jensen, 998 F.2d at 1554 (stating that a 56(d) request
was denied because “Plaintiffs . . . had an opportunity to make full discovery” but “simply chose
not to do so”); Johnson ex rel. Cano v. Holmes, 377 F. Supp. 2d 1039, 1044–45 (D.N.M. 2004)
(denying a 56(d) request where plaintiff did not explain why, during the discovery period that the
court allowed, he did not obtain the discovery sought in his motion). A word of caution to
Plaintiff’s counsel. The filing of an unsigned, unsworn affidavit in support of a third attempt to get
this right, exhausts the Court’s patience. Counsel is advised to turn sharp corners going forward.
IT IS ORDERED that Plaintiff’s Amended Motion for Extension (Doc. 23) is
IT IS FURTHER ORDERED that the Court DENIES Defendants’ Motion for Summary
Judgment (Doc. 7) WITHOUT PREJUDICE with leave to refile.
ROBERT C. BRACK
SENIOR U.S. DISTRICT JUDGE
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