Wilcox v. Career Step et al

Filing 220

MEMORANDUM DECISION and Order Denying Plaintiff's Motion for Continuance to Conduct Discovery Pursuant to Rule 56(d)-denying 204 Motion to Continue; terminating as moot 216 Motion for Extension of Time to File Response/Reply re 176 MOTION for Summary Judgment , 183 MOTION for Summary Judgment ; re 176 MOTION for Summary Judgment , 183 MOTION for Summary Judgment ; Set Deadlines as to 176 MOTION for Summary Judgment , 183 MOTION for Summary Judgment .( Motion Hearing set for 2/5/2013 03:00 PM in Room 102 before Judge Clark Waddoups.); See Order for details. Signed by Judge Clark Waddoups on 11/30/12. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

AIMEE L. WILCOX, individually,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION FOR CONTINUANCE TO
CONDUCT DISCOVERY PURSUANT
TO RULE 56(d)

Plaintiff,
v.
CAREER STEP, LLC, a Utah limited liability
company, et al.,

Case No. 2:08-cv-0998
Defendants.
Judge Clark Waddoups
Before the court is Plaintiff’s Motion for Continuance to Conduct Discovery Pursuant to
Rule 56(d) [Dkt. No. 204]. For the reasons discussed below, the court DENIES Plaintiff’s Rule
56(d) Motion, establishes a new schedule for briefing, and sets a hearing on the Defendants’
Motions for Summary Judgment [Dkt. No. 174, Dkt. No. 176, and Dkt. No. 183].
BACKGROUND
This case has been in process for nearly four years. Fact discovery was to be completed
by June 16, 2012, which was extended to August 17, 2012 by order of the Magistrate Judge on a
stipulated motion to extend the discovery deadline on June 27, 2012. [Dkt. No. 165.] Defendant
Career Step produced approximately 34,000 pages of email documents to Plaintiff on the last day
of the extended fact discovery period. (Pl.’s Mem. Supp. Rule 56(d) Mot., iii.) Defendant Career
Step had indicated as early as April 2, 2012 to Plaintiff that it would be willing to produce these
documents but the parties then negotiated for nearly three months about who would shoulder the
costs of the production of the emails. (Def.’s Opp. to Rule 56(d) Mot., 12-13.) On June 29, 2012,
Plaintiff agreed to contribute to the cost of gathering and producing the emails. (Id.)

On August 10, 2012, the parties submitted a further stipulated motion to extend the fact
discovery deadline to September 14, 2012. [Dkt. No. 168.] This motion was denied without
prejudice by the Magistrate Judge on August 21, 2012 in an order requiring the parties to show
good cause for the extension. [Dkt. No. 171.] The parties never reverted with a responsive
pleading; instead, Plaintiff’s counsel contacted Defendant Career Step’s counsel on September
14, 2012—the day before the deadline for submission of motions for summary judgment—to
request another extension of time to complete fact discovery. (Def.’s Opp. Rule 56(d) Mot., 5.)
Also on September 14, 2012, Plaintiff’s counsel learned from the parties’ mutual e-discovery
vendor that the vendor’s proprietary software had failed to populate some of the metadata fields
in the emails produced on August 17, 2012. (Pl.’s Mem. Supp. Rule 56(d) Mot., iii; Def.’s Opp.
Rule 56(d) Mot., 6.) Plaintiff did not, however, raise this issue with Defendant Career Step at
that time, first referring to it in her Rule 56(d) Motion. (Def.’s Opp. Rule 56(d) Mot., 6.) The
vendor remedied the mistake within days of bringing the issue to the parties’ attention. (Id.)
Defendant Career Step filed its Motion for Partial Summary Judgment on September 14,
2012 [Dkt. No. 175] and the College Defendants filed their Motion for Summary Judgment on
September 17, 2012 [Dkt. No. 184]. As the deadline for filing an Opposition to Defendants’
motions for summary judgment approached, Plaintiff requested from Career Step’ counsel an
extension of time to file her Opposition on October 12, 2012. (Def.’s Opp. Rule 56(d) Mot., at
5.) In this request, Plaintiff’s counsel explained that another matter in California was preventing
Plaintiff’s counsel from meeting the upcoming deadline for their Opposition. (Id.) Defendant
Career Step agreed to a one week extension on October 15, 2012 upon which Plaintiff’s counsel
renewed the request for a two-week extension, again citing the California matter and other
hearings preventing them from responding to the motions for summary judgment, not the

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analysis of the emails or the missing metadata. (Id.) Plaintiff then filed her Rule 56(d) Motion on
October 19, 2012 instead of an Opposition to the motions for summary judgment.
ANALYSIS
Under Rule 56(d) of the Federal Rules of Civil Procedure, a court may provide relief to
the non-moving party in a summary judgment motion who shows by affidavit or declaration that
“it cannot present facts essential to justify its opposition” to the motion. Fed. R. Civ. P. 56(d)
(2012). As Plaintiff notes in her supporting memorandum, “[t]he protection afforded by Rule
56(d) is designed to safeguard against a premature or improvident grant of summary judgment.”
(Pl.’s Mem. Supp. Rule 56(d) Mot., 1 (citing Pasternak v. Lear Petroleum Exploration, Inc., 790
F.2d 828, 832-833 (10th Cir. 1986).) On the other hand, “seeking to engage in a fishing
expedition with the hope of discovering some evidence to save” a case from summary judgment
is “wasteful of the court’s time and resources and is not the purpose of Rule 56(d).” Barker v.
Citigroup, Inc., No. 2:11-cv-51-CW, 2012 U.S. Dist. LEXIS 56726 at *5 (D. Utah Apr. 20,
2012). In the Tenth Circuit, Rule 56(d) “does not operate automatically”; rather, “its protections .
. . can be applied only if a party satisfies certain requirements.” Valley Forge Ins. Co. v. Health
Care Mgmt. Ptnrs., LTD, 616 F.3d 1086, 1096 (10th Cir. 2010) (quoting Price ex rel. Price v. W.
Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000) (ellipsis in original). Specifically, the party must
provide an affidavit or declaration that identifies the following information:
(1) “the probable facts not available,” (2) why those facts cannot be presented
currently, (3) “what steps have been taken to obtain these facts,” and (4) “how
additional time will enable [the party] to” obtain those facts and rebut the motion
for summary judgment.
Id. (quoting Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.
1992)). “Unless dilatory or lacking in merit, the motion should be liberally treated.” Comm. for
the First Amendment, 962 F.2d at 1522 (upholding district court’s denial of Rule 56(f) motion).
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In lieu of opposing Defendants’ three Motions for Summary Judgment, Plaintiff has
moved for relief under Rule 56(d) for more time to review a substantial last minute production of
documents and possibly request additional documents and/or re-depose certain Defendants or
their personnel. To be sure, the court is not pleased by the practice of such a voluminous
document production on the last day of fact discovery. But Plaintiff appears to be at least partly
responsible for these circumstances by how it handled the matter between April and June of
2012. Also, by the time she filed her Rule 56(d) Motion, Plaintiff had been in possession of the
produced emails for two months, and a month had also passed since the vendor had redressed its
error in populating certain metadata fields. And, in communications with Defendants’ counsel,
Plaintiff’s counsel cited a concurrently pending matter in California and other hearings as the
reason for a requested delay in filing an Opposition to the motions for summary judgment. The
court is therefore concerned that the present Rule 56(d) motion is indeed dilatory.
The court also finds the Rule 56(d) motion without merit based on a deficient affidavit
supporting the motion. The affidavit does not lay out which probable facts are not available to
the Plaintiff and why they cannot be presented currently (e.g. based Defendant Career Step’s
February and March 2012 production of documents as summarized in the chart produced by
Defendant Career Step on June 26, 2012) (see Def.’s Opp. Rule 56(d) Mot., 11-12), what steps it
intends to take in obtaining those facts and how the additional time will allow Plaintiff to rebut
the motion for summary judgment. Instead, Plaintiff’s counsel speculated in its affidavit that “it
is probable that Wilcox will discover evidence that will enable it to oppose Career Step’s and the
College Defendants’ motions for summary judgment.” (Pl.’s Mem. Supp. Rule 56(d) Mot., vi.)
This does not correctly reflect the showing required in such affidavits, which must aver “the
probable facts not available”, Valley Forge, 616 F.3d at 1096, and not that it is probable that

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further review of produced documents will enable Plaintiff to discover evidence that may enable
it to oppose the motions for summary judgment. The latter strongly hints at the type of fishing
expedition that is “wasteful of the court’s time and resources.” Barker, 2012 U.S. Dist. LEXIS
56726 at *5. In short, though the court can infer from Plaintiff’s position that Plaintiff believes it
is unable to oppose the motions for summary judgment, the supporting affidavit Plaintiff does
not state which facts are not available that would allow it to do so.
It is also unclear from Plaintiff’s supporting affidavit, and even from Plaintiff’s Reply
brief, which gives more detail about what Plaintiff is looking for, why such facts are not
currently available to Plaintiff in the production of documents from February and March of 2012
as summarized by Defendant Career Step in its Opposition to the Rule 56(d) Motion. (see Def.’s
Opp. Rule 56(d) Mot., 11-12.) In the affidavit and in her supporting Memorandum, rather than
identifying facts with any degree of specificity that are necessary to oppose the motions for
summary judgment, Plaintiff lists broad categories of information allegedly contained in the
produced emails, categories that seem to track the documents produced in February and March
2012. Also, based on Plaintiff’s more detailed discussion in her Reply brief about these
categories of information, it seems to the court that such evidence relates more to Plaintiff’s trial
preparation than to gathering information that would be necessary (and previously unavailable)
for opposing the currently pending motions for summary judgment. In any event, the Reply brief
is not the appropriate place for detail about the probable facts that are not currently available to
appear for the first time. “Advocacy by counsel does not suffice for evidence or fact in the Rule
56[d] context.” Comm. for the First Amendment, 962 F.2d at 1522. This information should be
set out in the affidavit or declaration as required by Rule 56(d) and guiding Tenth Circuit
caselaw. “The purpose of the affidavit is to ensure that the nonmoving party is invoking the

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protections of Rule 56[d] in good faith and to afford the trial court the showing necessary to
assess the merit of a party's opposition.” Id. (internal quotation and citation omitted). Moreover,
Plaintiff’s citations to the affidavit in her Reply brief somewhat egregiously do not support the
propositions or information for which they are used; nor could they as the affidavit is wholly
lacking as to the information required in such affidavits as discussed above. The court notes that
there is no reason it can discern why Plaintiff’s counsel could not have submitted an affidavit or
declaration from their client with factual statements relevant to her claims and the position
Defendants’ are taking in their motions for summary judgment on those claims.
The Tenth Circuit has, however, allowed that “[e]ven in the absence of a properly
supported request under Rule 56[d], a district court may, in the interest of justice, allow a party
additional time to marshal what evidence he does have in opposition to a summary judgment
motion.” Id. at 1523. The court finds Plaintiff’s Rule 56(d) motion both dilatory and lacking in
merit. In the interest of justice, however, and in light of the fact that Plaintiff has been in
possession of the further produced emails for more than two months now, the court allows
Plaintiff extra time to file her Opposition to the pending motions for summary judgment.
CONCLUSION
The court DENIES Plaintiff’s Motion for Continuance to Conduct Discovery Pursuant to
Rule 56(d) [Dkt. No. 204] as dilatory and lacking in merit, based, as it is, on a deficient
supporting affidavit.
In the interest of justice, however, the court ALLOWS Plaintiff extra time to file her
Opposition(s) to Defendants’ motions for summary judgment and ORDERS Plaintiff to file her
Opposition(s) no later than December 21, 2012, after which Reply briefs may be filed by January

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18, 2012. The trial date of February 19, 2013 is VACATED as a result and a hearing on the
motions for summary judgment is hereby ORDERED for February 5, 2013 at 3:00 p.m.
Plaintiff’s Ex Parte Motion for Extension of Time to File Response to Defendants’
Motions for Summary Judgment filed on November 29, 2012 [Dkt. No. 216] is also therefore
TERMINATED hereby as moot.
SO ORDERED this 30th day of November, 2012.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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