C J Mahan Construction Company LLC v. The Continental Insurance Company et al

Filing 30

OPINION AND ORDER GRANTING in part and DENYING in part 28 Joint MOTION for Extension of Time to Respond to Motion for Partial Summary Judgment. Responses due by 2/2/2015. Signed by Magistrate Judge Norah McCann King on 1/14/2015. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
C.J. MAHAN CONSTRUCTION
COMPANY, LLC,
Plaintiff,
Civil Action 2:14-cv-664
Judge Marbley
Magistrate Judge King

vs.
THE CONTINENTAL INSURANCE COMPANY,
et al.,
Defendants.

OPINION AND ORDER
This is an action for breach of insurance policies issued by
defendants The Continental Insurance Company and Charter Oak Fire
Insurance Company in connection with the sinking of a crane barge used
by plaintiff on a construction project.

Plaintiff seeks recovery of

the expenses associated with its removal of the barge.

Plaintiff also

asserts a claim of negligence against defendant MJ Insurance, Inc.,
plaintiff’s insurance broker, in connection with the broker’s advice
and recommendations relating to plaintiff’s purchase of the inland
marine policies.

Defendant Continental asserts a cross claim against

defendant Charter Oak for unjust enrichment in connection with amounts
allegedly paid by Continental to plaintiff.
The Preliminary Pretrial Order, ECF 20, required, inter alia,
that discovery be completed by October 1, 2015, and that motions for
summary judgment be filed by December 15, 2015.

Plaintiff filed a

motion for partial summary judgment, ECF 27, on December 8, 2014,
seeking a declaratory judgment for insurance coverage for wreck

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removal and crane recovery expenses.

By local and civil rule, see

S.D. Ohio Civ. R. 7.2(a)(2); Fed. R. Civ. P. 6(d), defendants’
responses to plaintiff’s motion for partial summary judgment were due
on January 2, 2015.

This matter is now before the Court on

Defendants’ Joint Motion for Extension of Time to Respond to Plaintiff
C.J. Mahan’s Motion for Partial Summary Judgment (“Defendants’
Motion”), ECF 28.

Defendants seek an extension of time until March 1,

2015 to respond to plaintiff’s motion for partial summary judgment.
Defendants argue that an extension is necessary because “it is the
holiday season” and defendants’ counsel will be on vacation or
otherwise unavailable through January 5, 2015, additional discovery is
needed to respond to the motion and to evaluate defendants’ respective
positions, and the parties have expressed interest in resolving this
dispute through mediation.
Plaintiff opposes Defendants’ Motion, arguing that defendants
have failed to justify such a lengthy extension and that plaintiff
will be prejudiced by the extension.

Plaintiff’s Memorandum in

Opposition to Defendant’s Motion to Extend Time to Respond to Summary
Judgment (“Plaintiff’s Response”), ECF 29.

Plaintiff does not oppose

extending the deadline to respond until February 2, 2015.

Id. at p.

3.
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
nonmovant shows

Unavailable to the Nonmovant.
If a
by affidavit or declaration that, for

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specified reasons, it cannot present
justify its opposition, the court may:
(1)
(2)
take
(3)

facts

essential

to

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).
In the case presently before the Court, defendants argue that

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additional discovery is necessary to respond to plaintiff’s motion for
partial summary judgment.

Defendants’ Motion, p. 2.

Defendants have

not, however, provided the affidavit or declaration required by Rule
56(d).
Defendants also argue that an extension is necessary because “it
is the holiday season” and defendants’ counsel will be on vacation or
otherwise unavailable through January 5, 2015.
pp. 1-2.

Defendants’ Motion,

Defendants’ counsel’s absence may justify some extension of

time to respond to plaintiff’s motion for partial summary judgment,
but absence during the holiday season does not justify the lengthy
extension sought by defendants.
Finally, defendants argue that an extension is justified because
the parties have expressed an interest in early mediation.
Defendants’ Motion, p. 3.

The parties have not yet scheduled

mediation; indeed, the parties have been unable to agree on a
mediator.

Id.; Plaintiff’s Response, p. 2.

Under these

circumstances, the Court concludes that the parties’ interest in
mediation, although laudable, is inadequate to justify a two month
extension of time to respond to plaintiff’s motion for partial summary
judgment.
Defendants have failed to justify their request for an extension
of time to respond to plaintiff’s motion for partial summary judgment.
However, as discussed supra, plaintiff does not oppose an extension to
February 2, 2015 and this Court agrees that a one month extension of
time is appropriate.

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Defendants may therefore have until February 2, 2015, to respond
to plaintiff’s motion for partial summary judgment, ECF 27.
Accordingly, Defendants’ Motion, ECF 28, is GRANTED in part and
DENIED in part, consistent with the foregoing.

January 14, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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