Jones et al v. Norton et al
Filing
207
ORDER AND MEMORANDUM DECISION granting 196 Motion for Discovery; granting 196 Motion for Extension of Time to File Response/Reply re 182 Defendant's MOTION for Summary Judgment; denying 196 Motion to Strike; denying 200 Motion to Strike. Signed by Judge Tena Campbell on 6/8/12 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DEBRA JONES, et al.,
Plaintiffs,
ORDER AND
MEMORANDUM DECISION
vs.
VANCE NORTON, et al.,
Case No. 2:09-cv-730-TC
Defendants.
Plaintiffs have filed a motion to continue discovery under Rule 56(d) of the Federal Rules
of Civil Procedure (Dkt. No. 196). They claim that they have not yet completed the depositions
of key witnesses that are necessary to their opposition. Plaintiffs also move to extend the
deadline by which they must respond to Defendant Blackburn Co.’s (Blackburn’s) motion for
summary judgment. Finally, Plaintiffs move to strike certain declarations that were submitted by
Blackburn in support of its summary judgment motion. Blackburn opposes these motions and
has filed its own motion to strike (Dkt. No. 200), claiming that certain portions of the
declarations submitted by Plaintiffs in support of their Rule 56(d) motion contain conclusory
allegations.
The court finds that Plaintiffs have not complied with the requirements of Rule 56(d), as
the Tenth Circuit has held that “a party seeking to defer a ruling on summary judgment under
Rule [56(d)] must provide an affidavit explaining why facts precluding summary judgment
cannot be presented.” Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086,
1096 (10th Cir. 2010). This affidavit should identify the probable facts that are not available and
what steps the moving party has taken to obtain those facts. See Trask v. Franco, 446 F.3d 1036,
1042 (10th Cir. 2006). In their Rule 56(d) motion, Plaintiffs do not explain why the discovery
has occurred so late in this lawsuit, besides stating that a telephone conference to schedule the
witness depositions occurred nearly three weeks after Blackburn filed its motion for summary
judgment. Plaintiffs’ motion also fails to explain what steps, if any, have already been taken to
obtain the evidence in question.
But while Plaintiffs have failed to file their response to Blackburn’s motion for summary
judgment in a timely manner, the court finds that the interests of justice weigh in favor of
granting Plaintiffs’ motion to extend the response deadline. This extension will allow the court
to hear the summary judgment motion on its merits. Plaintiffs have stated that the last deposition
needed to obtain evidence that is relevant to this matter is scheduled to occur on today’s date:
June 8, 2012. Because the necessary discovery should now be complete, the court allows
Plaintiffs ten days from the date of this order to file its response.
Both parties have submitted motions to strike various declarations that allegedly contain
hearsay, inappropriate expert opinions, or conclusory allegations. While the court notes the
concerns of both parties, the court finds it unnecessary to strike these declarations as the court is
well aware of its duty to base any summary judgment ruling on admissible testimony.
For the foregoing reasons, Plaintiffs’ motion (Dkt. No. 196) is GRANTED IN PART and
DENIED IN PART. Plaintiffs’ motion for additional discovery and to continue the response
deadline is GRANTED and the court allows Plaintiffs ten days from the date of this order to
submit its opposition to Blackburn’s motion for summary judgment. But Plaintiffs’ motion to
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strike is DENIED. Blackburn’s motion to strike (Dkt. No. 200) is also DENIED.
SO ORDERED this 8th day of June, 2012.
BY THE COURT:
______________________________
TENA CAMPBELL
United States District Judge
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