Kohn et al v. School Distrit of the City of Harrisburg et al

Filing 172

MEMORANDUM AND ORDER - AND NOW, this 6th day of Nov., 2012, upon consideration of the defts.' motions 149 151 153 155 pursuant to FRCP 56(d) for an ext. of time to oppose plfs.' motion for SJ it is ORDERED that: 1. The motions are d enied. 2. Defts. shall have 21 days from the date of this order to oppose plfs.' SJ motion. 3. Plfs. shall have 14 days to file a reply brief. 139 140 (See memo for complete details.) Signed by Honorable William W. Caldwell on 11/6/12. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GERALD KOHN, et al.,
Plaintiffs
v.
SCHOOL DISTRICT OF THE CITY
OF HARRISBURG, et al.,
Defendants
v.
LINDA THOMPSON, et al.,
Third-party Defendants

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: CIVIL NO. 1:11-CV-109
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MEMORANDUM

I.

Introduction
Pursuant to Fed. R. Civ. P. 56(a), Plaintiffs have filed a motion for partial

summary judgment on liability. We are considering four defense motions under Fed. R.
Civ. P. 56(d) seeking additional time for discovery before opposition to the motion must
be filed.
The plaintiffs are Gerald Kohn, Julie Botel, and Rebecca Hostetler. They
were formerly the superintendent of the Harrisburg School District, the deputy
superintendent, and the assistant superintendent, respectively. They brought this suit to
contest the termination of their employment without notice or hearing. The defendants
are the School District; the District’s Board of Control and the mayor-appointed members
of the Board of Control, Gloria Martin-Roberts, Herbert Goldstein, Autumn Cooper,

Sanford Long, Jennifer Smallwood; the “Elected School Board” and its members, Lola D.
Lawson, Lionel Gonzalez, Wayne L. Henry, Randy King, Jeffrey Moore, Tiffiney Penn,
Patricia Whitehead-Myers, Roy E. Christ, and Esther E. Edwards. The School District
has brought into the case as third-party defendants, James E. Ellison, Esq., the District’s
former counsel, Rhoads & Sinon, the law firm where he practices, and Linda Thompson,
the Mayor of the City of Harrisburg.
Plaintiffs present two main claims. One is under 42 U.S.C. § 1983, alleging
the terminations violated Plaintiffs’ Fourteenth Amendment right to due process. The
other is under state law, alleging breach of contract because Plaintiffs’ employment
agreements allowed termination only for good cause and only after notice and a hearing.
Greater detail can be found in our memorandum dealing with the defendants’ motions to
dismiss. Kohn v. Sch. Dist. of City of Harrisburg, 817 F. Supp. 2d 487 (M.D. Pa. 2011), in
which we dismissed some claims and allowed others to proceed. Id. at 514.
The four Rule 56(d) motions were filed by: (1) the Elected Board and the
Elected Board members; (2) Roy E. Christ and Esther E. Edwards, members of both the
Board of Control and the Elected Board; (3) the School District; and (4) the Board of
Control and the mayor-appointed members of the Board of Control.

II.

Discussion
Plaintiffs’ motion for partial summary judgment seeks judgment on liability

on the following claims: (1) their federal due-process claims against the School District
and the individual defendants; (2) their state-law claims in mandamus against the School
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District, the Elected Board and the Elected Board members; (3) their state-law breach-ofcontract claims against the School District; and (4) their claims for declaratory relief
against all defendants that they were illegally terminated. A review of the motion and
supporting brief reveals that the factual basis upon which judgment is sought is that the
record shows Plaintiffs were not given notice or a hearing before they were discharged.
Rule 56(a) allows a motion for partial summary judgment. In part, a “party
may move for summary judgment, identifying . . . the part of each claim or defense –- on
which summary judgment is sought.” The discovery deadline in this case was extended
to December 31, 2012, but as pertinent here, a motion for summary judgment may be
made “at any time until 30 days after the close of all discovery.” Fed. R. Civ. P. 56(b).
If nonmoving parties believe they need additional discovery to adequately
oppose a summary-judgment motion, they may file an affidavit or declaration under Fed.
R. Civ. P. 56(d). That Rule provides:
(d) 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:
(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.
The affidavit or declaration must “detail[ ] what particular information is sought; how, if
uncovered, it would preclude summary judgment; and why it has not previously been
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obtained,” Doe v. Abington Friends Sch., 480 F.3d 252, 255 n.3 (3d Cir. 2007)(internal
quotation marks and quoted case omitted), although as long as the necessary
information is provided, the requirements of an affidavit or declaration need not always be
complied with. St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir.
1994). We have discretion in considering a Rule 56(d) motion, and the factors listed are
not exhaustive. Superior Offshore Int’l, Inc. v. Bristow Group, Inc.,

F. App’x

,

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2012 WL 3055849, at *8 (3d Cir. 2012)((nonprecedential)(quoting Horvath v. Keystone
Health Plan East, Inc., 333 F.3d 450, 458 (3d Cir. 2003)). “‘District courts usually grant
properly filed Rule 56(f) motions as a matter of course. This is particularly so when there
are discovery requests outstanding or relevant facts are under the control of the moving
party.’” Murphy v. Millennium Radio Group LLC, 650 F.3d 295, 309-10 (3d Cir.
2011)(quoting Doe, 480 F.3d at 257).1
Collectively, the four motions argue the following. First, the parties had
agreed (informally at least) that discovery would be postponed while they explored
settlement during the summer of 2012. Second, significant discovery remains to be
completed, including numerous depositions of parties and fact witnesses. (Doc. 157 at p.
2). Third, the defendants need “additional discovery on the issue relating to any requests
for reinstatement or appeal by Plaintiffs, and personal knowledge and or actions on the
part of [the Elected Board members] regarding any opportunities present to correct the
alleged due process violations.” (Doc. 150, Elected Board’s “declaration,” ¶ 16, p. 4).
1

Rule 56(f) is the predecessor section to Rule 56(d). The substance of both rules
remains the same. Pennsylvania v. Sebelius, 674 F.3d 139, 157 n.3 (3d Cir. 2012).

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Fourth, Plaintiffs rely on general averments in a penalty-of-perjury declaration of Mark E.
Holman, the District’s former human-resources manager, and Holman needs to be
deposed.
Other arguments the School District makes are: discovery is needed on the
“level of independent action of the mayor-appointed members of the Board of Control”
and “Plaintiffs’ performance with regard to the Improvement Plan.” (Doc. 153, ¶ 6(a) and
(c)). The Board of Control and the mayor-appointed members of the Board argue
additional discovery is needed on the following:
the allegation that no notice or hearing was provided to
Plaintiffs prior to the Mayor-appointed Board of Control's votes
at public Board of Control Meetings to adopt the Resolutions
rescinding the named Plaintiffs' employment contracts; that
said rescission was not consistent with the School District's
Improvement Plan under the Education Empowerment Act
(EEA); Plaintiffs' performance under the Improvement Plan;
and that personal liability should attach to the Individual
Members of the Board of Control allegedly based upon their
"collusory" action in voting to adopt the Resolutions to rescind
the employment contracts.
(Doc. 156, Muscante declaration, ¶ 8).
The Board of Control and the mayor-appointed members of the Board also
argue additional discovery is needed on the following issues (overlapping somewhat with
the above) that are expected to be in dispute:
whether notice and a hearing were required prior to rescission
of Plaintiffs' employment contracts under the EEA; whether
the actions taken at public Board of Control Meetings to adopt
the Resolutions to rescind Plaintiffs' employment contracts
were undertaken consistent with the School District's
Improvement Plan under the EEA; the extent of Plaintiffs'
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performance under the Improvement Plan; whether the
actions taken by the Individual Board of Control Members to
adopt the Resolutions to rescind Plaintiffs' employment
contracts were taken in the Board of Control Members' official
capacities; whether the Individual Members of the Board of
Control are entitled to qualified immunity for the actions taken
by them to adopt the Resolutions to rescind the Plaintiffs'
employment contracts; and whether there was any conspiracy
by any party to deprive Plaintiffs of their alleged due process
rights.
(Id. ¶ 9).
The arguments made for a Rule 56(d) extension do not persuade us. The
defendants have to show that they cannot present facts essential to their opposition to
summary judgment unless an extension is granted. Plaintiff’s motion focuses on whether
the mayor-appointed members of the Board of Control failed to give notice and
opportunity to be heard before Plaintiffs were terminated and whether the members of the
Elected Board had sufficient personal involvement in Plaintiffs’ not being reinstated in the
months after their discharge. The defendants certainly have access to evidence that
would rebut Plaintiffs’ evidence in this regard, if only to affidavits or declarations of the
board members, either mayor-appointed or elected, as to what they did in regard to these
factual issues. The defendants’ remaining arguments deal with legal issues or factual
issues that do not bear on liability. In other respects, the defendants’ position is not
specific enough.

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We will therefore deny the Rule 56(d) motions and require the defendants
to file opposition to Plaintiffs’ summary-judgment motion.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: November 6, 2012

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:
:
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: CIVIL NO. 1:11-CV-109
:
:
:
:
:
:
:
:
:

GERALD KOHN, et al.,
Plaintiffs
v.
SCHOOL DISTRICT OF THE CITY
OF HARRISBURG, et al.,
Defendants
v.
LINDA THOMPSON, et al.,
Third-party Defendants

ORDER

AND NOW, this 6th day of November, 2012, upon consideration of the
defendants’ motions (Doc. 149, 151, 153 and 155) pursuant to Fed. R. Civ. P. 56(d) for
an extension of time to oppose Plaintiffs’ motion for summary judgment it is ORDERED
that:
1. The motions are denied.
2. Defendants shall have twenty-one (21) days from the
date of this order to oppose Plaintiffs’ summary-judgment
motion.
3. Plaintiffs shall have fourteen (14) days to file a reply
brief.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge