M.S. v. Utah School for the Deaf and the Blind

Filing 114

MEMORANDUM DECISION AND ORDER granting 92 Motion for Additional Time to Respond to Summary Judgment; denying 107 Defendant's Objection to Reply Memorandum in Support of Plaintiff's Rule 56(d) Motion and in Response to Defendant's Reply to Plaintiff's Response for Summary Judgment. Plaintiff will be allowed to file a response to Defendant's 79 MOTION for Summary Judgment within 28 days after the completion of discovery. Defendant may then file a reply memorandum within 14 days pursuant to DUCivR7-1(b)(3). When the Motion for Summary Judgment is fully briefed, the Court will set a hearing on the matter. Signed by Judge Ted Stewart on 3/9/2017. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
M.S., a minor, by and through her parent,
J.S.,

MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFF’S RULE
56(d) MOTION AND DENYING
DEFENDANT’S MOTION TO STRIKE

Plaintiff,
v.
UTAH SCHOOL FOR THE DEAF AND
THE BLIND,

Case No. 2:13-CV-420-TS

Defendant.

District Judge Ted Stewart

This matter is before the Court on Defendant’s Motion for Summary Judgment,
Plaintiff’s Motion for Additional Time to Respond to Summary Judgment or in the Alternative to
Strike Defendant’s Summary Judgment Motion and Supporting Memorandum (“Rule 56(d)
Motion”), and Defendant’s Objection to Reply Memorandum in Support of Plaintiff’s Rule 56(d)
Motion and in Response to Defendant’s Reply to Plaintiff’s Response for Summary Judgment
(“Motion to Strike”). For the reasons set forth below, the Court will grant Plaintiff’s Rule 56(d)
Motion to allow additional time for Plaintiff to respond to Defendant’s Motion for Summary
Judgment, and deny Defendant’s Motion to Strike.
I. BACKGROUND
In August of 2016, the Court held a scheduling conference to resolve the pending issues
in this case. At the scheduling conference, the parties agreed it was necessary to conduct further
discovery. The Court set a two-day evidentiary hearing to begin on December 7, 2016. On
October 7, 2016, Defendant filed a Motion for Summary Judgment. Subsequently, the Court

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struck the scheduled two-day evidentiary hearing upon granting Defendant’s Expedited Motion
to Continue Discovery and Evidentiary Hearing. 1
On November 11, 2016, Plaintiff filed a Rule 56(d) Motion alleging she had not yet
obtained the necessary discovery to adequately respond to Defendant’s Motion for Summary
Judgment and requesting additional time to respond or, in the alternative, requesting that the
Court strike Defendant’s Motion. Defendant filed two memoranda in response to Plaintiff’s Rule
56(d) Motion: A reply memorandum addressing Plaintiff’s Motion as though it were a response
memorandum to Defendant’s Motion for Summary Judgment, and a response memorandum
addressing Plaintiff’s same Motion as a Rule 56(d) motion. On December 19, 2016, Plaintiff
filed a reply memorandum in support of the Rule 56(d) Motion and, on December 22, 2016,
Plaintiff filed an additional reply memorandum in response to Defendant’s Reply memorandum
(“Plaintiff’s Second Reply”). A request to submit for decision on both Defendant’s Motion for
Summary Judgment and Plaintiff’s Rule 56(d) Motion was filed on January 31, 2017.
II. DISCUSSION
A. RULE 56(d) MOTION AND MOTION FOR SUMMARY JUDGMENT
Defendant argues that Plaintiff’s Rule 56(d) Motion is improper under DUCivR 71(b)(1)(A), which states that motions may not be included in response or reply memorandum, but
instead “must be made in a separate document.” 2 Plaintiff properly filed its Rule 56(d) Motion as
a separate document as required by the Rule. The Court therefore rejects Defendant’s argument
and will consider the merits of Plaintiff’s Motion.

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See Docket No. 83.

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DUCivR 7-1(b)(1)(A).

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The Tenth Circuit has enumerated four threshold requirements the party opposing
summary judgment must identify by declaration or affidavit to succeed on a Rule 56(d) motion:
“(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.” 3 If the nonmovant meets this
standard, Rule 56(d) allows the court to “defer considering the motion . . . or issue any other
appropriate order.” 4
The Court finds the declarations included in Plaintiff’s Motion meet the above-stated
standard. The Court will therefore grant Plaintiff’s Rule 56(d) Motion and defer considering
Defendant’s Motion for Summary Judgment until the matter has been fully briefed. 5
B. MOTION TO STRIKE PLAINTIFF’S SECOND REPLY
Defendant requests that the Court strike Plaintiff’s Second Reply Memorandum, arguing
it is additional memoranda which may not be filed without the Court’s leave under DUCivR 71(b)(2)(A). The Court declines to strike Plaintiff’s Second Memorandum given the excess
briefing filed by both parties on this matter.

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Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th
Cir. 2010) (quoting Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th
Cir.1992)) (internal quotation marks omitted).
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Fed. R. Civ. P. 56(d).

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The Court denies Plaintiff’s alternative request to strike Defendant’s Motion for
Summary Judgment.

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III. CONCLUSION
It is therefore
ORDERED that Plaintiff’s Motion for Additional Time to Respond to Summary
Judgment or in the Alternative to Strike Defendant’s Summary Judgment Motion and Supporting
Memorandum (Docket No. 92) is GRANTED. Plaintiff will be allowed to file a response to
Defendant’s Motion for Summary Judgment within twenty-eight (28) days after the completion
of discovery. Defendant may then file a reply memorandum within fourteen (14) days pursuant
to DUCivR7-1(b)(3). When the Motion for Summary Judgment is fully briefed, the Court will
set a hearing on the matter.
It is further ORDERED that Defendant’s Objection to Reply Memorandum in Support of
Plaintiff’s Rule 56(d) Motion and in Response to Defendant’s Reply to Plaintiff’s Response for
Summary Judgment (Docket No. 107) is DENIED.
DATED this 9th day of March, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

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