Morgan v. State Farm Mutual Automobile Insurance Company
ORDER granting in part as set forth herein 28 Plaintiff's Rule 56(d) Motion. Signed by Honorable Timothy D. DeGiusti on 4/13/2018. (ml)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GEORGE ANDREW MORGAN,
STATE FARM MUTUAL
Case No. CIV-17-622-D
This matter comes before the Court on Plaintiff’s Rule 56(d) Motion [Doc.
No. 28]. Defendant has filed its response in opposition [Doc. No. 29]. The matter is
fully briefed and at issue.
Plaintiff was insured under an automobile policy issued by Defendant. He was
involved in an accident wherein another individual, Jesse Atkins, was severely
injured while crossing the road. At the time of the accident, Atkins’ employer had
workers’ compensation insurance that was issued by the Kansas Building Industry
Worker’s Compensation Fund, whereby New York Marine and General Insurance
(NYM) acted as insurer and held subrogation rights. Plaintiff alleges Defendant
knew or should have known of NYM’s involvement and its attendant rights;
however, it settled with Atkins while failing to resolve NYM’s rights of subrogation,
thereby exposing Plaintiff to hundreds of thousands of dollars of liability in excess
of his policy limits. 1 Plaintiff filed the present suit against Defendant, asserting
claims for breach of contract and breach of the duty of good faith and fair dealing.
On January 24, 2018, Defendant filed its Motion for Summary Judgment
[Doc. No. 20]. It contends that (1) Plaintiff’s breach of contract claim is barred by
the applicable statute of limitations, (2) there is no genuine dispute of material fact
regarding Plaintiff’s breach of contract and bad faith claims, and (3) there is
insufficient evidence from which to submit the question of punitive damages to a
In this regard, Rule 56(d), Federal Rules of Civil Procedure, provides that if a
non-movant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition to a pending motion for summary
judgment, the Court may: (1) defer considering the motion or deny it; (2) allow time
to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order. Fed. R. Civ. P. 56(d). 2 Pursuant to the rule, Plaintiff has filed the
NYM subsequently sued Plaintiff in Garfield County District Court to enforce its
subrogation rights. A jury found in favor of NYM and awarded it damages in the
amount of $844,865.89. The verdict was ultimately upheld on appeal.
Effective December 1, 2010, the Supreme Court amended Rule 56, and what is
now Rule 56(d) previously was codified as Rule 56(f). See Fed. R. Civ. P. 56 Adv.
Comm. Note (2000) (“The standard for granting summary judgment remains
unchanged ... Subdivision (d) carries forward without substantial change the
provisions of former subdivision (f)”).
present motion seeking to depose the four individuals who he believes were involved
in the handling of the claims against him. 3 Plaintiff contends that the conduct of
these individuals “forms the basis for Plaintiff’s claims,” and “their depositions are
necessary to develop the facts which will support the opposition to Defendant’s
purported ‘undisputed facts’ and show additional facts which preclude [s]ummary
[j]udgment.” Pl. Resp. at 3. Defendant objects to the motion. It contends that the
factual basis for its motion was fully developed in the Garfield County litigation,
and thus, there are no material facts that are unavailable to Plaintiff.
STANDARD OF DECISION
The general principle of Rule 56(d) is that summary judgment should be
refused when the nonmoving party has not had the opportunity to discover
information that is essential to his opposition. Price ex rel. Price v. Western
Resources, Inc., 232 F.3d 779, 783 (10th Cir. 2000) (citation omitted). To make the
showing necessary to obtain relief pursuant to Rule 56(d), a party must do more than
assert “that the evidence supporting [the party’s] allegation is in the hands of the
[opposing party].” Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir. 1985)
(quoting Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th
In an earlier ruling, the Court granted Defendant’s motion to stay discovery
pending a ruling on its summary judgment motion [Doc. No. 25]. However, the
Court granted the motion without prejudice to Plaintiff’s right to seek relief under
Cir. 1984) (paraphrasing in original)). Instead, the party invoking Rule 56(d) “must
show how additional time will enable him to rebut [the] movant’s allegations of no
genuine issue of fact.” See id.; Jensen v. Redevelopment Agency of Sandy City, 998
F.2d 1550, 1554 (10th Cir. 1993). The court in Price summarized the requisite
showing as follows:
A prerequisite to granting relief [pursuant to Rule 56(d)] ... is an
affidavit furnished by the nonmovant. Although the affidavit need not
contain evidentiary facts, it must explain why facts precluding
summary judgment cannot be presented. This includes identifying the
probable facts not available and what steps have been taken to obtain
these facts. In this circuit, the nonmovant also must explain how
additional time will enable him to rebut movant’s allegations of no
genuine issue of fact.
Price, 232 F.3d at 783 (quoting Committee for the First Amendment v. Campbell,
962 F.2d 1517, 1522 (10th Cir. 1992)); see also Burke v. Utah Transit Auth. and
Local 382, 462 F.3d 1253, 1264 (10th Cir. 2006) (“Additionally, [an affidavit] must
‘state with specificity how the additional material will rebut the summary judgment
motion.’”) (citation omitted). Rule 56(d) may not be invoked based solely upon the
assertion that discovery is incomplete or that the specific facts necessary to oppose
summary judgment are unavailable. Jensen, 998 F.2d at 1553. It is not a license for
a fishing expedition. Lewis v. City of Ft. Collins, 903 F.2d 752, 759 (10th Cir. 1990).
Thus, although a party’s motion under Rule 56(d) should be liberally treated, the
decision to grant additional discovery is within the Court’s discretion. Leyba v. City
of Santa Fe, 198 F. Supp. 3d 1254, 1257 (D.N.M. 2016).
In light of the foregoing standard, the Court finds Plaintiff’s motion should be
granted in part. Pivotal to a Court’s analysis under Rule 56(d) is whether the subject
information is essential to the non-movant’s defense to summary judgment. Here,
despite pressing the urgency of the depositions at issue, Plaintiff was nonetheless
able to formulate and submit a fully briefed (albeit “preliminary”) response to
Defendant’s motion. This undercuts his argument that such evidence was vital to his
response. As noted, the Tenth Circuit specifically states district courts should
disallow relief under Rule 56(d) where the argument is simply that discovery is
incomplete. Jensen, 998 F.2d at 1553. As evidenced in Plaintiff’s response, the
failure to depose the subject witnesses did not fully preclude him from providing a
comprehensive response to Defendant’s motion.
Nonetheless, the Court does find that the testimony of Michael Feldman is
relevant to Defendant’s motion and Plaintiff should be allowed to fully develop his
testimony in this regard. Plaintiff has made a specific showing that Feldman’s
testimony is necessary to refute Defendant’s assertion that it had no knowledge of a
workers’ compensation claim prior to settling with Atkins. Compare Def. Statement
of Undisputed Facts, ¶¶ 24-25 with Pl. Prelim. Resp. Br. at 12. Thus, the Court finds
Plaintiff should be permitted to depose Feldman on the circumstances surrounding
this issue. Plaintiff’s request to depose the remaining individuals, however, is denied
in that he has not, to the Court’s satisfaction, shown these individuals’ testimony is
essential to establishing whether material facts are in dispute.
Accordingly, Plaintiff’s Rule 56(d) Motion [Doc. No. 28] is GRANTED IN
PART as set forth herein. Plaintiff is permitted to take the deposition of Michael
Feldman. Said deposition shall take place within thirty (30) days of this Order. After
Feldman’s deposition has been concluded, Plaintiff shall file an amended response
brief within fourteen (14) days of his receipt of the finalized transcript of the
deposition. Plaintiff shall advise the Court via written notice filed herein as to when
Feldman’s deposition transcript has been received.
IT IS SO ORDERED this 13th day of April 2018.
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