Clifford et al v. Church Mutual Insurance Company
Filing
82
OPINION AND ORDER granting 69 Motion for Fed. R. Civ. P. 56(d) Relief. Signed by Magistrate Judge Norah McCann King on 11/3/2014. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JACQUIN CLIFFORD, et al.,
Plaintiffs,
vs.
Civil Action 2:13-cv-853
Judge Watson
Magistrate Judge King
CHURCH MUTUAL INSURANCE COMPANY,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Fed. R.
Civ. P. 56(d) Relief, ECF 69 (“Rule 56(d) Motion”).
For the reasons
that follow, the Rule 56(d) Motion is GRANTED.
By way of brief background, defendant Church Mutual Insurance
Company (“defendant” or “Church Mutual”) issued policies of insurance
to Licking Baptist Church of Hebron, Ohio, (“the church”) for the
period December 2001 through December 2007. Complaint, ECF 4, ¶¶ 2658;1 Exhibits B, C attached thereto.
Lonnie J. Aleshire, Jr., (“Mr.
Aleshire, Jr.”) was an associate pastor of the church in 2003 and
2004.
Complaint, ¶ 9.
Plaintiffs allege that, during that time, Mr.
Aleshire, Jr., committed acts of sexual misconduct on plaintiffs
Sandra Cottrell and Jacquin Clifford. Id. at ¶¶ 13-18.
On November
28, 2005, Mr. Aleshire, Jr. was convicted on multiple criminal counts
arising from these incidents.
Id. at ¶ 20.
1
The original document filed in a state court action in the Court of Common
Pleas for Licking County that was removed to this Court is captioned
“Supplemental Complaint.” This Court will refer to that pleading as the
Complaint.
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Thereafter, in 2007 and in 2010, plaintiffs filed two civil
actions in the Court of Common Pleas for Licking County (“the state
court”) apparently arising out of criminal conduct of Mr. Aleshire,
Jr.
Id. at ¶ 1.
Following a jury trial in the 2010 state court
action as against Mr. Aleshire, Jr., the state court entered final
judgment on August 31, 2012 against Mr. Aleshire, Jr., awarding
plaintiffs $4.35 million in damages for assault, battery, intentional
infliction of emotional distress, false imprisonment, and loss of
consortium as well as $51,354.37 in attorney’s fees (“the money
judgment”).
Complaint, ¶¶ 1, 21-25, 63, 76, 83; Exhibit A, attached
thereto (Final Judgment Entry).
The action presently before this Court was originally filed in
the Court of Common Pleas for Licking County, Jacquin Clifford fka
Cottrell, et al. v. Church Mutual Insurance Company, Case No.
13CV0736, seeking a declaratory judgment that the policies issued by
defendant cover the injury or loss caused by defendant’s alleged
insured, Mr. Aleshire, Jr. (and as reflected in the money judgment).
See Complaint.
On August 29, 2013, defendant removed the action to
this Court as one arising under this Court’s diversity jurisdiction.
Notice of Removal, ECF 1.2
Following the close of discovery, the parties filed motions for
summary judgment on September 17, 2014.
ECF 61, 64.
On the same day,
plaintiffs filed their Rule 56(d) Motion, arguing that they are unable
to present facts essential to their response to defendant’s motion for
2
On September 26, 2014, the Court denied plaintiffs’ motion to remand this
action. Opinion and Order, ECF 74. See also Report and Recommendation, ECF
19.
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summary judgment because certain discovery remained outstanding.
Rule
56(d) Motion, pp. 3-6 (citing Affidavit of Beverly J. Farlow in
Support of Plaintiffs’ Motion for Fed. R. Civ. P. 56(d) Relief,
attached thereto) (“Farlow Affidavit”).
The Rule 56(d) Motion refers
to plaintiffs’ motion to compel and for sanctions, ECF 40, and to
their motion for in camera review, ECF 47, which were pending at the
time the Rule 56(d) Motion was filed.
Plaintiffs’ memorandum in
opposition to defendant’s motion for summary judgment was before
resolution of the discovery motions.
ECF 73. All parties thereafter
filed reply memoranda in support of their motions for summary
judgment.
ECF 75, 78.
Plaintiffs nevertheless persist in their
request for relief under Rule 56(d).
On October 21, 2014, the Court granted in part and denied in part
plaintiffs’ motion to compel and denied their motion for in camera
review.
Opinion and Order, ECF 80.
More specifically, the Court
ordered defendant to produce, within ten days, any deposition or trial
transcripts generated in the underlying state litigation and in
defendant’s possession or control (“state court transcripts”).
30.
Id. at
Plaintiffs’ motion to compel was denied in all other respects.
Id.
Rule 56(d) of the Federal Rules of Civil Procedure establishes
the proper procedure to be followed when a party concludes that
additional discovery is necessary to respond to a motion for summary
judgment:
When Facts Are Unavailable to the Nonmovant.
If a
nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
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(1)
(2)
take
(3)
defer considering the motion or deny it;
allow time to obtain affidavits or declarations or to
discovery; or
issue any other appropriate order.
Fed. R. Civ. P. 56(d).
The affidavit or declaration required by the
rule must “indicate to the district court [the party’s] need for
discovery, what material facts [the party] hopes to uncover, and why
[the party] has not previously discovered the information.”
Cacevic
v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing
Radich v. Goode, 886 F.2d 1391, 1393-94 (3d Cir. 1989)).
A motion
under Rule 56(d) may be properly denied where the requesting party
“̔makes only general and conclusory statements [in the supporting
affidavit or declaration] regarding the need for more discovery and
does not show how an extension of time would have allowed information
related to the truth or falsity of the [information sought] to be
discovered,’”
Ball v. Union Carbide Corp., 385 F.3d 713, 720 (6th
Cir. 2004) (quoting Ironside v. Simi Valley Hosp., 188 F.3d 350, 354
(6th Cir. 1999)), or where the affidavit or declaration “lacks ‘any
details’ or ‘specificity.’”
Id. (quoting Emmons v. McLaughlin, 874
F.2d 351, 357 (6th Cir. 1989)).
The importance of complying with the
specific requirements of Rule 56(d) cannot be over-emphasized.
Cacevic, 226 F.3d at 488.
See
Finally, whether or not to grant a request
for additional discovery falls within the trial court’s discretion.
Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009).
Plaintiffs contend that the state court transcripts are necessary
to enable them to better “explain how Aleshire Jr. was, in fact, an
insured, and being an insured involves not only whether he was acting
4
in the scope of his employment, but also whether the acts occurred
while he was performing duties related to the conduct of Licking
Baptist Church business.”
Farlow Affidavit, ¶¶ 11, 13. Plaintiffs
also contend that “any additional facts within the transcripts that
distinguish the false imprisonment and counseling incidents and
injuries from the sexual misconduct also would be material.”
Rule
56(d) Motion, p. 3 (citing Farlow Affidavit, ¶ 12).
Defendant opposes the Rule 56(d) Motion, arguing, inter alia,
that plaintiffs have not established the need for additional
discovery. Church Mutual Insurance Company’s Memorandum in Opposition
to Plaintiffs’ Motion for Fed. R. Civ. P. Rule 56(d) Relief, ECF 76
(“Memo. in Opp.”).
In any event, defendant contends, plaintiffs were
able to file their own motion for summary judgment and oppose
defendant’s motion without the requested discovery.
Id. Defendant
also argues that the state court transcripts are and have been readily
accessible to plaintiffs. Memo. in Opp., p. 3. Plaintiffs reply that
requiring them to incur the expense of procuring the state court
transcripts from the state court is unreasonable where defendants can
easily produce those transcripts for plaintiffs’ inspection and
copying. Reply, p. 2 (citing Farlow Affidavit, ¶ 13).
Plaintiffs’ arguments are well-taken.
This Court has concluded
that the state court transcripts within defendant’s possession are
discoverable by plaintiffs.
Opinion and Order, ECF 80, pp. 17-18, 30.
Moreover, plaintiffs have established that these transcripts are
relevant and necessary to plaintiffs’ response to defendant’s motion
for summary judgment. The Court is therefore persuaded that its
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discretion is better exercised in granting plaintiffs relief under
Rule 56(d).
See, e.g., Egerer, 556 F.3d at 426.
WHEREUPON, Plaintiffs’ Motion for Fed. R. Civ. P. 56(d) Relief,
ECF 69, is GRANTED.
Plaintiffs, if they choose to do so, may
supplement their opposition to defendant’s motion for summary
judgment, ECF 64, no later than November 17, 2014.
This supplemental
filing must not exceed ten (10) pages length and may address only
information reflected in the state court transcripts produced by
defendant.
If defendant intends to respond to plaintiffs’
supplemental brief, it shall do so no later than November 24, 2014.
No other additional briefing on the pending motions for summary
judgment shall be permitted, unless upon order by the District Judge.
November 3, 2014
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
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