Frazier v. Vintage Stock Inc

Filing 31

ORDER denying 20 Motion for Partial Summary Judgment; granting 23 Motion to Continue; denying as moot 26 Motion for Extension of Time to File Response/Reply ; denying as moot 29 Motion for Leave to; denying as moot 30 Motion for Leave to File Documents under Seal. Signed by Honorable Timothy D. DeGiusti on 10/20/2015. (mb)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
DONALD EUGENE FRAZIER, JR.,
Plaintiff,
v.
VINTAGE STOCK, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. CIV-15-550-D

ORDER
Before the Court are Defendant’s Motion for Continuance of Plaintiff’s Motion for
Partial Summary Judgment Pursuant to F.R.C.P. 56(d) [Doc. No. 23], which was timely
opposed and is fully briefed,1 and Defendant’s Alternative Motion for Additional Time to
Respond to Plaintiff’s Motion for Partial Summary Judgment [Doc. No. 26], which seeks a
two-week extension of time to file its summary judgment response if a continuance is denied.
Factual and Procedural Background
Plaintiff Donald Eugene Frazier, Jr., who appears pro se, filed this action under the
Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x, based on claims that
Defendant Vintage Stock, Inc. violated multiple FCRA provisions in connection with his
application for employment. By Order of August 20, 2015, the Court granted in part and
denied in part a motion to dismiss the Complaint, and Defendant timely answered on

1

Defendant did not file a reply brief within the time period provided by LCvR7.1(i). Plaintiff
recently filed a motion to supplement his response, and the time for Defendant to respond to this motion has
not expired. However, the supplemental response that Plaintiff seeks to file [Doc. No. 28] is not pertinent
to the issues raised by Defendant’s request for a continuance.

September 3, 2015. Prior to the setting of an initial scheduling conference, and before a
discovery conference had been conducted pursuant to Fed. R. Civ. P. 26(f), Plaintiff filed a
motion for summary judgment on September 17, 2015. See Pl.’s Mot. Partial Summ. J. [Doc.
No. 20] (hereafter, “Plaintiff’s Motion”). Plaintiff seeks a summary adjudication pursuant
to Fed. R. Civ. P. 56 of the FCRA claim asserted as Claim I in his Complaint, which is,
Defendant violated § 1681b(b)(3)(A)(i) by failing to provide him a copy of a background
report containing negative information regarding criminal convictions before taking adverse
action on his employment application. See Compl. [Doc. No. 1], ¶ 15.
After Plaintiff moved for partial summary judgment, Defendant promptly sought the
protection of Fed. R. Civ. P. 56(d), asking the Court to deny or defer a ruling on Plaintiff’s
Motion until discovery can be conducted. See. Def.’s Mot. Contin. Pl.’s Mot. Partial Summ.
J. Pursuant to F. R.C.P. 56(d) [Doc. No. 23] (hereafter, “Rule 56(d) Motion”). Defendant’s
Rule 56(d) Motion is accompanied by an affidavit of a corporate representative that points
out the lack of any pretrial disclosures or discovery to date, and states the following “facts
or information discovery might reveal in support of [Defendant’s] defense of Plaintiff’s
claims . . . :” a) “that Plaintiff has suffered no actual damages as a result of [Defendant’s]
alleged conduct;” b) “that Plaintiff has failed to mitigate the actual damages incurred, if
any . . . ; and c) that Defendant’s alleged FCRA violation was “negligent, rather than willful,
thereby barring Plaintiff’s claims for statutory and punitive damages under the FCRA.” See
Lawless Aff. [Doc. No. 23-1], ¶ 9. Plaintiff opposes the Rule 56(d) Motion on the grounds
that Defendant has access to information already in its possession regarding the undisputed
2

facts pertinent to Claim I and he “is not requesting in the Motion for Partial Summary
Judgment that an assessment of damages be immediately determined.” See Pl.’s Resp. Opp’n
Def.’s Mot. Contin. [Doc. No. 24], pp.4-5 (ECF page numbering).
Standard of Decision
Rule 56(d) authorizes a district court to defer considering or deny a motion for
summary judgment, or allow time to obtain affidavits or take discovery, “[i]f a nonmovant
shows by afidavit or declaration that, for specified reasons, it cannot present facts essential
to justify its opposition.” See Fed. R. Civ. P. 56(d). 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.’” FDIC v. Arciero, 741 F.3d 1111,
1116 (10th Cir. 2013) (quoting Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir. 2006)).
Discussion
Upon consideration of the parties’ arguments, an examination of Plaintiff’s summary
judgment brief, and a review of the case record, the Court finds that Defendant’s Rule 56(d)
Motion should be granted and that Plaintiff’s Motion should be denied, without prejudice to
refiling, as premature under the circumstances. Plaintiff’s Motion addresses only one of
multiple FCRA claims asserted in the Complaint, and from the allegations of Plaintiff’s
pleading and his arguments in opposition to Defendant’s initial motion to dismiss, there
appears to be a substantial overlap among the facts pertinent to all claims. Plaintiff has filed
3

a Rule 56 motion regarding the merits of his action before any opportunity for discovery has
occurred.2 Rule 56 “implicitly requires the district court to allow the nonmoving party an
opportunity to respond before summary judgment is entered against it.” Beaird v. Seagate
Tech., Inc., 145 F.3d 1159, 1163 (10th Cir. 1998); see also Fed. R. Civ. P. 56(f). Defendant
would be deprived of a reasonable opportunity to oppose Plaintiff’s Motion if Defendant
were required to respond before any discovery is conducted.
While Defendant focuses its need for discovery on issues related to Plaintiff’s
damages, the Court finds that effective case management and an orderly disposition of claims
and defenses is best achieved by allowing dispositive motions to be filed only after a
reasonable time period for discovery. Also, denying Plaintiff’s Motion – rather than simply
deferring it or permitting discovery related to it – will best serve the interests that Rule 56 is
designed to achieve, permitting in one summary judgment proceeding an adjudication of all
claims and defenses that may be resolved as a matter of law on undisputed facts.3 Requiring
Defendant to respond to Plaintiff’s Motion before he has provided any pretrial disclosures
or discovery materials will likely result in piecemeal briefing and multiple requests for
supplemental filings as pertinent factual information comes to light.4

2

Under the Federal Rules of Civil Procedure now in effect, “[a] party may not seek discovery from
any source before the parties have conferred as required by Rule 26(f)” and the timing of a Rule 26(f)
discovery planning conference is tied to the initial scheduling conference, which has not been held in this
case. See Fed. R. Civ. P. 26(d)(1), (f)(1).
3

Pursuant to LCvR56.1(a), a party may file only one summary judgment motion without leave of

court.
4

Notably, Plaintiff has already moved to supplement his opening brief to correct a factual error
regarding the representative of Defendant knowledgeable of facts regarding the background report.

4

Further, in denying Defendant’s motion to dismiss, the Court did not reach the issue
of statutory damages because it found that Plaintiff had sufficiently alleged the asserted
FCRA violations caused actual damages. According to the Complaint, a job offer extended
by one of Defendant’s store managers was withdrawn based on negative information from
the background check, and Plaintiff prayed for a monetary award of “an amount equal to lost
wages and employment benefits he would have received but for the wrongful adverse action
against him due to the inaccurate background report,” as well as other unspecified damages.
See Compl. [Doc. No. 1], p.7. Based on Plaintiff’s alleged loss of wages and employment
benefits as a result of Defendant’s refusal to hire him, the Court found that the Complaint
should not be dismissed for failure to allege any damages, as asserted by Defendant. See
Order of 8/20/15 [Doc. No. 16], p.5.
Now, however, Plaintiff does not identify in the supporting brief for his Motion any
actual damages caused by Defendant’s failure to provide a copy of the background report
before refusing to hire him. Plaintiff instead argues in support of his Motion only that
statutory and punitive damages are available under FRCA. See Pl’s Br. Supp. Mot. Partial
Summ. J. [Doc. No. 21], pp.6-7. Such damages require a finding of a willful violation. See
Birmingham v. Experian Info. Solutions, Inc., 633 F.3d 1006, 1009 (10th Cir. 2011) (citing
15 U.S.C. § 1681n(a)). “A ‘willful’ violation is either an intentional violation or a violation
committed . . . in reckless disregard of [the violator’s] duties under the FCRA.” Id. (citing
Safeco Ins. Co. v. Burr, 551 U.S. 47, 57-58 (2007)). Thus, the facts surrounding Defendant’s

5

alleged FCRA violation are critical to Plaintiff’s success on the claim for which summary
judgment is sought.
Conclusion
For these reasons, the Court finds that Defendant’s Rule 56(d) Motion should be
granted and that Plaintiff’s Motion should be denied as premature.
IT IS THEREFORE ORDERED that Defendant’s Motion for Continuance of
Plaintiff’s Motion for Partial Summary Judgment Pursuant to Fed. R. Civ. P. 56(d) [Doc.
No. 23] is GRANTED, and Defendant’s Alternative Motion for Additional Time to Respond
to Plaintiff’s Motion for Partial Summary Judgment [Doc. No. 26] is DENIED as moot.
Related motions filed by Plaintiff – Plaintiff’s Motion for Leave to File Supplement to
Plaintiff’s Response in Opposition to Defendant’s Motion for Continuance Pursuant to Fed.
R. Civ. P. 56(d) [Doc. No. 29] and Plaintiff’s Motion for Leave to File Documents Under
Seal to Plaintiff’s Response in Opposition to Defendant’s Motion for Continuance Pursuant
to Fed. R. Civ. P. 56(d)[Doc. No. 30] – are also DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Partial Summary Judgment
[Doc. No. 20] is DENIED without prejudice to refiling, if appropriate, at a later time.
IT IS SO ORDERED this 20th day of October, 2015.

6