Wickware v. Manville
Filing
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ORDER denying 53 Motion for New Trial and/or Reconsideration. Signed by Honorable Timothy D. DeGiusti on 1/26/2015. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VERNELL WICKWARE, JR.,
Plaintiff,
v.
JOHNS MANVILLE,
Defendant.
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Case No. CIV-13-424-D
ORDER
Before the Court is Plaintiff’s Rule 59 Motion for New Trial and/or Reconsideration [Doc.
No. 53], filed December 5, 2014, pursuant to Fed. R. Civ. P. 59(e). Plaintiff seeks relief from the
summary judgment entered in Defendant’s favor on November 7, 2014. Defendant has timely
opposed the Motion, which is fully briefed and at issue.
In this timely-filed Rule 59(e) motion, Plaintiff asks the Court to reconsider its ruling that
he failed to demonstrate a genuine issue of material fact concerning whether Defendant’s decision
to remove Plaintiff from his designated position of relief operator – and thus reduce his level of pay
under a newly-implemented wage plan – constituted discrimination on the basis of disability in
violation of the the Americans with Disabilities Act of 1990, as amended by the ADA Amendments
Act of 2008, 42 U.S.C. § 12101 et seq. (collectively, the “ADA”). Plaintiff recognizes that the
proper grounds for reconsideration are narrow, but he asserts that relief is warranted here “[b]ecause
there is a need to correct clear error and prevent manifest injustice.” See Motion, p.1.
1.
Failure to Rule on Plaintiff’s Motion to Compel
Plaintiff asserts that the Court erred by failing to rule on a pending motion to compel
discovery before issuing its summary judgment ruling. Plaintiff relies on an affidavit of his attorney
submitted in support of the motion to compel and a footnote in the brief he filed in opposition to
summary judgment stating he “reserve[d] the right to supplement this response based on the Court’s
ruling on his Motion to Compel Deposition Testimony.” See Pl.’s Resp. Br. Def.’s Mot. Summ. J.
[Doc. No. 40], p.1 n1.
Plaintiff filed the motion to compel after Defendant moved for summary judgment. Plaintiff
did not, however, seek the protection of Rule 56(d), which provides a mechanism for deferring a
summary judgment ruling or obtaining necessary discovery. Instead, after obtaining a 13-day
extension of time due to his counsel’s press of business and deadlines in other cases, Plaintiff filed
his summary judgment response and accompanying materials. In the above-quoted footnote,
Plaintiff referred to Rule 56(d) but he made no effort to comply with its requirement that a
nonmovant show “by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.” See Fed. R. Civ. P. 56(d). The affidavit of counsel to which
Plaintiff now points did not satisfy this requirement. In it, counsel merely stated that the deposition
testimony sought by the motion was “vital” to properly preparing and presenting Plaintiff’s case;
he did not state that Plaintiff could not oppose the motion for summary judgment without it. See
Pl.’s Mot. Compel, Ex. 3 [Doc. No. 33-3]. To the contrary, Plaintiff affirmatively stated in the
footnote of his response brief that he “believe[d] there is sufficient evidence presented to deny
summary judgment.” See Pl.’s Resp. Br. Def.’s Mot. Summ. J. [Doc. No. 40], p.1 n1.
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The fact that the Court found otherwise does not mean it was error to require Plaintiff and
his counsel to follow the applicable procedural rules. Tenth Circuit law is clear: “Where a party
opposing summary judgment and seeking a continuance pending completion of discovery fails to
take advantage of the shelter provided by Rule 56(f) [now Rule 56(d)] by filing an affidavit, there
is no abuse of discretion in granting summary judgment if it is otherwise appropriate.” Pasternak
v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833-34 (10th Cir. 1986); accord Price ex rel.
Price v. W. Res., Inc., 232 F.3d 779, 783-84 (10th Cir. 2000). Where a party desires additional
discovery before a summary judgment ruling, the party “must present an affidavit that identifies ‘the
probable facts not available and what steps have been taken to obtain these facts. The nonmovant
must also explain how additional time will enable him to rebut the movant’s allegations of no
genuine issue of material fact.’” F.D.I.C. v. Arciero, 741 F.3d 1111, 1116 (10th Cir. 2013) (quoting
Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir. 2006)). The court of appeals has expressly held
that it is not error to grant summary judgment without ruling on a motion to compel where the
nonmovant fails to comply with Rule 56(d). See Universal Money Centers, Inc. v. Am. Tel. & Tel.
Co., 22 F.3d 1527, 1536 (10th Cir. 1994).
Plaintiff also did not file a motion asking the Court to rule on the motion to compel before
a dispositive ruling or requesting an opportunity to supplement his summary judgment response, as
suggested by the footnote in his brief.1 Plaintiff’s counsel is an experienced attorney well-versed
in federal motion practice, which is the appropriate means for obtaining judicial action. The Court’s
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There was certainly ample time and reason for doing so. More than six months passed between
the time the motion for summary judgment was fully briefed and the Court issued its summary judgment
ruling. The deadline to complete discovery had also passed. Plaintiff had an additional reason for filing a
motion to supplement, as discussed infra, in that he later obtained deposition testimony that he now says was
important to his case.
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local rules require that a motion must be filed as a separate document, and expressly state: “A
response to a motion may not also include a motion or a cross-motion made by the responding
party.” See LCvR7.1(c). Absent a separate motion to delay a summary judgment ruling or to
request action on the motion to compel, it was not error for the Court to proceed with issuing a
decision.
Finally, Plaintiff’s claim of error and manifest injustice assumes a favorable ruling on his
motion to compel additional deposition testimony from Defendant’s representatives who were
involved in the challenged employment decisions – the human resources manager and the plant
manager. Plaintiff proposed to question them about conversations with Defendant’s attorney about
Plaintiff and his request for accommodation of medical restrictions. The attorney was in-house
counsel regarding employment law matters. Defendant timely asserted a claim of attorney-client
privilege when the deponents were asked what they discussed with the attorney. In light of
Defendant’s response to the motion to compel, which was accompanied by declarations of the
deponents made under penalty of perjury that they were seeking legal advice about the ADA and
compliance with it in Plaintiff’s situation, the Court is not persuaded that Plaintiff’s motion to
compel should have been granted.
2.
New Evidence Previously Unavailable
Plaintiff contends reconsideration is also warranted because he obtained what he believes
to be favorable testimony from a witness who was deposed after Plaintiff filed his summary
judgment response. There are several problems with this contention. First, the deposition was taken
after the discovery cut-off without seeking leave of Court to extend the deadline or to depose the
witness out of time. To obtain reconsideration based on new evidence, a party must show a diligent
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effort to discover the evidence in a timely manner. See Committee for First Amendment v.
Campbell, 962 F.2d 1517, 1523-24 (10th Cir. 1992); see also Somerlott v. Cherokee Nation
Distributors, Inc., 686 F.3d 1144, 1153-54 (10th Cir. 2012). Plaintiff’s failure to comply with the
case management schedule set by the Court suggests a lack of reasonable diligence. More
importantly, the fact Plaintiff did not know of the testimony when he filed his response brief did not
prevent him from seeking leave to add it to the summary judgment record before the Court issued
its ruling. The deposition testimony on which he now wishes to rely was given three days after his
response brief was filed, and more than six months before summary judgment was entered. Thus,
Plaintiff has not shown that the evidence is newly discovered.
Although not a matter of new evidence, Plaintiff also argues that the Court erred in not
considering an affidavit he submitted in opposition to summary judgment from an individual whom
Plaintiff had not previously disclosed as a potential witness. He asserts that there is no requirement
that an affiant be listed as a trial witness. While this may be true as a general proposition, it is not
true under the circumstances of this case. Rule 37(c)(1) provides, and it was expressly stated in the
Scheduling Order [Doc. No. 18], that a witness who is not identified in a party’s final witness list
will not be permitted to testify at trial. Defendant objected to the affidavit of the undisclosed witness
on this basis. Yet Plaintiff made no effort to justify his lack of disclosure or to cure it by asking to
amend his witness list before summary judgment was granted, as now argued in support of
reconsideration. Plaintiff is simply asking the Court to consider an argument that he could have
made, but did not, before the entry of summary judgment.
For these reasons, the Court finds that Plaintiff has failed to provide a sufficient justification
for reconsideration of the summary judgment ruling.
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IT IS THEREFORE ORDERED that Plaintiff’s Rule 59 Motion for New Trial and/or
Reconsideration [Doc. No. 53] is DENIED.
IT IS SO ORDERED this 26th day of January, 2015.
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