Haskett v. Percheron, LLC et al

Filing 84

OPINION AND ORDER - While the Court can understand Hasketts frustrations, it believes that an affidavit from him, as required by Fifth Circuit authority under Rule 56(d) (formerly 56(f)), should be submitted to the Court to aid in the proper resolut ion of the 80 Motion to Strike. It is, therefore, ORDERED that Haskett SHALL file his affidavit with the Court by 7/7/2017. It is further ORDERED that any response to the affidavit from Defendant SHALL be filed by 7/21/2017.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT

June 19, 2017
David J. Bradley, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
PHILLIP DAVID HASKETT
V.
PERCHERON, LLC, ET AL.

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CIVIL ACTION NO. G-14-257

OPINION AND ORDER
Following the filing of the Defendant’s Motion for Summary Judgment on January
27, 2017, the Parties, with the approval of the Court, agreed that Pro Se Plaintiff, Phillip
David Haskett, could conduct his intended discovery before the Court set a date for
Haskett to respond to the Motion. That discovery included taking the deposition of Justin
Connor, a former employee of the Defendant who was involved in the alleged adverse
hiring decision in this case. Haskett has been unable to depose Connor due to his alleged
evasion of service of a subpoena and Haskett has filed a Motion to Strike the Affidavit of
Connor (Instrument no. 80) submitted in support of the Defendant’s summary judgment
motion. Because of Haskett’s pro se status this Court permitted an open-ended discovery
period without any showing that the discovery was needed in order to respond to the
Motion for Summary Judgment. Therefore, in lieu of ruling on the Motion to Strike at this
time, the Court enters this Opinion and Order.
Rule 56(d) addresses Haskett’s predicament. In order for a non-movant to support
a continuance of a response date to a summary judgment motion, the non-movant typically

must file a non-evidentiary affidavit explaining why he cannot presently oppose the motion.
Xerox Corp. v. Gennmoora, Corp., 888 F.2d 345, 354 (5th Cir. 1989). In the affidavit
the non-movant must justify the continuance by setting out specific facts explaining his
inability to make the substantive response required by Rule 56. Union City Barge Line,
Inc. v. Union Carbide Corp., 823 F.2d 129, 137 (5th Cir. 1987). The affidavit must also
show how additional time to conduct the discovery will enable the non-movant to rebut the
motion’s assertion that no genuine issue of material fact exists. McCarty v. United States,
928 F.2d 1085, 1088 (5th Cir. 1991). The non-movant may not rely on vague assertions
that discovery will produce needed, but unspecified facts, Id., or that it might reveal
relevant facts of which the non-movant is not aware. Hartford Accident & Indemnity v.
Costa Lines Cargo Services, Inc., 903 F.2d 352, 361 (5th Cir. 1990). A continuance will
not be granted if the discovery involves factual matters that would not affect the legal basis
for summary judgment. Washington v. Allstate Insurance Co., 901 F.2d 1281, 1285 (5th
Cir. 1990).
While the Court can understand Haskett’s frustrations, it believes that an affidavit
from him, as required by Fifth Circuit authority under Rule 56(d) (formerly 56(f)), should
be submitted to the Court to aid in the proper resolution of the Motion to Strike.1

But see Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 604-5 (7th Cir. 2000) (The
unavailability of an affiant witness will not bar the court from considering his summary judgment
affidavit.) But compare Amnesty America v. Town of West Hartford, 361 F.3d 113, 131 (2d Cir.
2004) (In the absence of a showing the affiants are no longer available, willing or otherwise
competent to testify at trial the district court was correct to consider their affidavits.)
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It is, therefore, ORDERED that Haskett SHALL file his affidavit with the Court
on or before July 7, 2017.
It is further ORDERED that any response to the affidavit from Defendant SHALL
be filed on or before July 21, 2017.
DONE at Galveston, Texas, this

19th

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day of July, 2017.