Jabary v. City of Allen

Filing 150

MEMORANDUM OPINION AND ORDER - DENYING 141 Plaintiff's Motion for Continuance. Signed by Magistrate Judge Amos L. Mazzant on 7/17/2014. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

MIKE JABARY
v.
STEPHEN TERRELL,
BRET McCULLOUGH

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Case No. 4:10-cv-711
Judge Clark/Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion for Continuance (Dkt. #141).

After

considering the motion and the response (Dkt. #144), the Court finds the motion is denied.
Plaintiff requests that he needs additional time to secure deposition testimony and
discovery responses regarding all remaining issues in this lawsuit, and requests that the Court
extend the trial setting in this case. The Fifth Circuit signed its opinion on this case on January
17, 2014, remanding Plaintiff’s procedural due process claims regarding both Defendants to this
Court. On February 5, 2014, the Court entered an amended scheduling order setting the deadline
for dispositive motions for May 14, 2014, and the deadline for discovery for July 23, 2014.
Following that scheduling order, the parties had a dispute regarding the scope of discovery in
light of the Fifth Circuit’s ruling, and on April 21, 2014, the Court ruled on Jabary’s motion to
compel. The Court found that that Plaintiff is only permitted to conduct discovery on the issue
of qualified immunity as it relates to the procedural due process claims (Dkt. #131 at 2).
Plaintiff contends that it can now move forward with discovery, but has had inadequate time to
complete it prior to the dispositive motion and discovery deadline. Plaintiff asserts that he needs
to depose Stephen Terrell, Bo Bass, Bret McCullough, Bill Rushing, Jon Felty, Shelley George,
and Matthew Johnson regarding the policies, procedures, participation, and facts in their
declarations and related to the revocation procedure.
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The depositions of Bret McCullough and

Stephen Terrell have already been taken. Plaintiff requested to add the deposition of Bret
McCullough to the summary judgment record, and the Court granted that request. Plaintiff did
not request to add the deposition of Stephen Terrell. Plaintiff also contends that only allowing
three and a half months from the date of the Fifth Circuit’s opinion until the dispositive motion
deadline was inherently improper.
Plaintiff essentially requests a continuance under Federal Rule of Civil Procedure 56(d),
which states:
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.
“[Rule 56(d)] is an essential ingredient of the federal summary judgment scheme and provides a
mechanism for dealing with the problem of premature summary judgment motions.”
Parakkavetty v. Indus. Int’l, Inc., No. 3:02-CV-1461-D, 2004 WL 354317, at *1 (N.D. Tex. Feb.
12, 2004). “Rule 56(d) functions as a safe harbor that has been built into the rules so that
summary judgment is not granted prematurely.” State Farm Fire and Cas., Co. v. Whirlpool
Corp., No. 3:10-CV-1922-D (N.D. Tex. Aug. 15, 2011) (citing Union City Barge Line v. Union
Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987)). “It is usually invoked when a party claims
that it has had insufficient time for discovery or that the relevant facts are in the exclusive control
of the opposing party.” Id. “Rule 56(d) offers relief where the nonmovant has not had a full
opportunity to conduct – not to complete – discovery. The two concepts are distinct.” Id. (citing
McCarty v. United States, 929 F.2d 1085, 1088 (5th Cir. 1991)).
It is not sufficient for a summary judgment nonmovant to allege that discovery is
incomplete or that discovery will produce needed but unspecified facts. See Washington v.

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Allstate Ins. Co., 901 F.2d 1281, 1284-85 (5th Cir. 1981). The party must demonstrate “how the
additional time will enable [it] to rebut the movant’s allegations of no genuine issue of fact.” Id.
at 1286 (internal quotation marks omitted) (quoting Weir v. Anaconda Co., 773 F.2d 1073, 1083
(10th Cir. 1985)). A nonmovant is not entitled to a continuance if it “fail[s] to explain what
discovery [it] did have, why it was inadequate, and what [it] expected to learn from further
discovery” and gives only “vague assertions of the need for additional discovery.” Bauer v.
Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999) (internal quotations and citations omitted).
Rule 56 does not require that any discovery take place before summary judgment can be granted.
Washington, 901 F.2d at 1285.
As an initial matter, this case was pending for fourteen months prior to the appeal taken
in this case. No discovery was sought by Plaintiff during that time period. In addition, Plaintiff
received initial disclosures from Defendants on November 16, 2011, and a supplement on
February 22, 2012.
Plaintiff has not demonstrated its diligence in seeking to prepare for trial, blaming the
delay on both Defendants and the Court. Plaintiff contends that the Court’s delay in ruling on its
motion to compel prevented it from obtaining discovery; however, Plaintiff fails to note that it
also filed a Motion for Relief from Judgment (Dkt. #124), and a Motion to Stay Proceedings
After Ruling on Modification of the Judgment (Dkt. #125). The Court denied both of these
motions, and ordered the parties to prepare for trial. (Dkt. #129; #132). However, it was
Plaintiff who delayed seeking discovery on the qualified immunity issues related to the
procedural due process claims, and instead insisted on seeking discovery on all matters at issue
in the suit. In February and March of 2014, Defendants engaged in attempting to schedule
depositions, but Plaintiff did not respond to Defendants inquiries regarding whether both

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depositions could be conducted in one day, and to confirm deposition dates. As of April 28,
2014, the parties finally agreed on deposition dates of May 7 for Defendant Terrell and May 9
for Defendant McCullough. On May 6, 2014, at 4:30 p.m., Defendant’s counsel was notified
that Plaintiff’s counsel, Ms. Alexis Mosser, was ill and would be unavailable for the depositions.
Plaintiff’s counsel Mr. Nick Mosser “stated that…he would need more time to prepare in order
to conduct the deposition May 7 efficiently” (Dkt. #144 at 8). Defendant’s counsel stated he was
unwilling to reschedule, and Mr. Nick Mosser hung up the phone. Id. Defendant’s counsel was
unable to reach him by telephone following that conversation. After many letters back and forth,
Defendant’s counsel suggested a stipulation to the Court regarding deposition date and summary
judgment deadlines, which the Court ultimately struck (Dkt. #138). The parties later selected
June dates for the depositions, which were conducted by Ms. Alexis Mosser, despite the fact that
Plaintiff has three counsel listed on the docket. This does not demonstrate diligence on the part
of Plaintiff in obtaining discovery.
Further, although Plaintiff names the individuals he seeks to depose, he does not indicate
how their depositions will lead to any information that would be material to defeating the motion
for summary judgment.

Defendant McCullough’s deposition is in the record.

Defendant

Terrell’s deposition clearly did not yield relevant information, since Plaintiff did not request to
add that deposition in its motion to supplement. As for the policies and procedures of the City of
Allen, Defendants’ motion for summary judgment includes that information in great detail, and
is undisputed by Plaintiff.

The only questions before the Court is whether there was a

constitutional violation of Plaintiff’s due process rights, was the conduct of the Defendants
objectively reasonable under the circumstances, and whether Plaintiff mitigated his damages.
Plaintiff fails to demonstrate how the testimony of any of these individuals bears on those three

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questions. Plaintiff continues to claim that there was a widespread conspiracy among the City of
Allen officials to revoke Jabary’s certificate of occupancy, but Plaintiff’s conspiracy claims were
dismissed by this Court and that decision was affirmed by the Fifth Circuit. Thus, there is no
reason to depose these individuals about any plan to deprive Jabary of his certificate of
occupancy, because that is not at issue in the present litigation.
In short, Plaintiff has not met his burden to show that a Rule 56(d) continuance is
appropriate in this case. For this reason, the Court finds Plaintiff’s motion is denied.
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CONCLUSION
Based on the foregoing, the Court finds that Plaintiff’s Motion for Continuance (Dkt.
#141) is DENIED.
IT IS SO ORDERED.
SIGNED this 17th day of July, 2014.

___________________________________
AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE

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