Kimbler v. Spear et al

Filing 23

OPINION AND ORDER deferring ruling on 7 Motion for Summary Judgment; plt's request for discovery under Rule 56(d)(2) is GRANTED only to the limited extent described in this opinion and order; discovery permitted must be completed within 30 da ys; plt. may file supplemental response to the motion for summary judgment within 14 days after completion of the permitted discovery; dft's may file a reply within 7 days thereafter; dft's are directed to file an answer to the complaint prior to the deposition of defendant Spears, and in no event later than 14 days from this date. Signed by Judge James P. Jones on 4/11/17. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
JENNIFER KIMBLER,
Plaintiff,
v.
KEVIN SPEAR, ET AL.,
Defendants.

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Case No. 1:16CV00047
OPINION AND ORDER
By: James P. Jones
United States District Judge

Steven R. Minor, Elliott Lawson & Minor, Bristol, Virginia, for Plaintiff;
Cameron S. Bell, Penn Stuart & Eskridge, Abingdon, Virginia, and Ronald W.
Cox, Jr., McCarthy Wilson LLP, Rockville, Maryland, for Defendants.
In this diversity action for damages, the plaintiff, Jennifer Kimbler, asserts a
claim for defamation per se against defendant Hannleb Physics, Inc. (“Hannleb”)
and its employee, defendant Kevin Spear.

The defendants have moved for

summary judgment pursuant to Federal Rule of Civil Procedure 56. In response,
Kimbler opposes the Motion for Summary Judgment and alternatively seeks leave
to conduct discovery before determination of the motion. See Fed. R. Civ. P.
56(d)(2). For the reasons that follow, I will partially grant Kimbler’s request for
discovery and defer decision on the defendants’ Motion for Summary Judgment.

I.
The undisputed facts, taken from the Complaint and summary judgment
record, are as follows.
Plaintiff Jennifer Kimbler is a dosimetrist who, at the time of the events
giving rise to this action, was employed by Mountain States Health Alliance
(“MSHA”) at its Johnston Memorial Hospital in Abingdon, Virginia.

A

dosimetrist is a member of a radiation oncology team. In her role, Kimbler worked
as part of a team with a physicist from Hannleb, Michelle Schwer, and an
oncologist, Dr. Tisdale. 1
This action centers on an external audit conducted by defendant Kevin Spear
in his capacity as an agent of defendant Hannleb. Hannleb is a medical physics
and dosimetry company that provides certain services, including review services,
to MSHA. The audit was conducted pursuant to a written Service Agreement
between Hannleb and MSHA. 2 In conducting the audit, Spear reviewed the charts
of patients, including patients treated by Kimbler.
In April 2016, Kimbler received a “Written Counselling/Correction Action
Notice” from MSHA that referenced the audit. Kimbler subsequently resigned

1

Neither party has provided Dr. Tisdale’s first name.

2

Hannleb and MSHA also executed a Business Associate Addendum, which
permitted MSHA to disclose protected health information to Hannleb in order for
Hannleb to perform the services contemplated by the Service Agreement.
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from her position with MSHA. Following Kimbler’s resignation, Hannleb was
asked to provide temporary dosimetry services for Johnston Memorial Hospital
until a permanent replacement could be hired.
In December 2016, Kimbler filed this lawsuit against Spear and Hannleb.
Specifically, Kimbler alleges that the external audit conducted by Spear on behalf
of Hannleb “contains false and defamatory statements about [her] professional
ability.” Compl. ¶ 11, ECF No. 1. She claims that the audit “falsely suggests that
[she] purposefully mistreated patients,” that its purpose was to “state or imply that
[she] was guilty of unethical and unprofessional conduct and that her employment
should be terminated,” that the defendants published the audit “with actual
knowledge that it was false or with reckless disregard of whether it was false or
not,” and that the audit was “willfully designed to discredit [her] in her
profession.” Id. at ¶¶ 12, 16-17.
The Motion for Summary Judgment has been briefed and orally argued. The
defendants rely on three grounds: that they are entitled to statutory immunity under
Virginia law; that they enjoy a qualified privilege in making the audit report; and
that the audit “is not defamatory because it does not contain actionable
statements.” Defs.’ Mem. Supp. Summ. J. 5, ECF No. 8. Kimbler argues in
response that the statements contained in the audit are actionable and that the
immunity and privilege claimed by the defendants “do not defeat claims based on
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bad faith and malicious intent,” which she asserts have been sufficiently alleged.
Pl.’s Mem. Opp’n Summ. J. 6, ECF No. 16. She also contends that summary
judgment is premature and requests that the court, prior to deciding whether to
grant summary judgment, permit her to conduct discovery of certain facts
regarding “the Defendants’ contract with MSHA,” the circumstances that resulted
in the audit, the “substance of the audit,” and an alleged conflict between her team
members, Dr. Tisdale and Michelle Schwer, which she “believe[s] was the cause of
the Defendants’ attacks on [her] reputation.” Kimbler Decl. ¶ 3, ECF No. 16-1.
II.
Federal Rule of Civil Procedure 56(a) requires a court to grant a motion for
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In ruling on a motion for summary judgment, the court must view
all facts in the light most favorable to the opposing party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).

A dispute about a material fact is

“genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. at 248. Although the party seeking summary judgment
bears “the burden of showing the absence of a genuine issue as to any material
fact,” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970), the party opposing

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summary judgment must nevertheless “properly address [the movant]’s assertion
of fact” in order to proceed to trial. Fed. R. Civ. P. 56(e).
Because the non-moving party must address the movant’s assertions as to
material facts, “[i]n general, summary judgment should only be granted ‘after
adequate time for discovery.’” McCray v. Md. Dep’t of Transp., 741 F.3d 480, 483
(4th Cir. 2014) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
Accordingly, where a nonmovant shows that she lacks “facts essential to justify
[her] opposition” to summary judgment, the court may defer judgment on the
motion and “allow time to . . . take discovery.” Fed. R. Civ. P. 56(d)(2). “A Rule
56(d) motion must be granted ‘where the nonmoving party has not had the
opportunity to discover information that is essential to [her] opposition.’” McCray,
741 F.3d at 483-84 (quoting Harrods Ltd. v. Sixty Internet Domain Names, 302
F.2d 214, 244 (4th Cir. 2002)); see also Anderson, 477 U.S. at 250 n.5. “[S]uch
motions are ‘broadly favored and should be liberally granted’ in order to protect
non-moving parties from premature summary judgment motions.”

Id. at 484

(quoting Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council
of Balt., 721 F.3d 264, 281 (4th Cir. 2013)).
III.
The plaintiff also raises the procedural issue of whether it is proper to file a
motion for summary judgment prior to filing an answer or a Rule 12 motion. The
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record shows that while service was duly executed on the defendants — Proof of
Service on Spear, ECF No. 19 and Proof of Service on Hannleb, ECF No. 20 —
neither have filed an answer to the Complaint nor filed a motion under Rule 12.
While Rule 56(b) says that a motion for summary judgment may be filed at
any time, the real issue is whether a defendant may be in default if he files only
such a motion. The Rules provide that “[a] defendant must serve an answer within
21 days after being served with the summons and complaint.” Fed. R. Civ. P.
12(a)(1)(A)(i). If a defendant timely files a motion under Rule 12, this deadline is
tolled pending the court’s disposition of the motion. Fed. R. Civ. P. 12(a)(4). The
question of whether service of a motion for summary judgment under Rule 56
similarly tolls this deadline has not often been addressed, but the plain language of
Rule 12(a)(4) indicates that it does not. See Fed. R. Civ. P. 12(a)(4) (specifically
noting that the deadline is tolled by the “serving of a motion under this rule”
(emphasis added)). See Modrowski v. Pigatto, 712 F.3d 1166, 1170 (7th Cir. 2013)
(holding that “[w]hile serving a Rule 12 motion tolls [this] deadline . . . filing a
Rule 56 motion has no such effect”); Fowler v. Fischer, No. 13-CV-6546-FPG,
2016 U.S. Dist. LEXIS 16278, at *4 n.2 (W.D.N.Y. Feb. 10, 2016) (noting that
“[a]lthough Defendants appear to believe that a motion for summary judgment
filed in lieu of an answer stays the deadline for filing a responsive pleading under
Rule 12(a), . . . it is far from clear that it does so”); Ricke v. Armco, Inc., 158
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F.R.D. 149, 149-150 (D. Minn. 1994) (finding that where the defendant’s “motion
to dismiss” was not expressly made under Rule 12 and was substantively a motion
for summary judgment, the deadline for filing an answer was not suspended). But
see Rashidi v. Albright, 818 F. Supp. 1354, 1356 (D. Nev. 1993) (suggesting that
“by analogy the language [of Rule 12(a)(4)] would seem to apply” to allow a
motion for summary judgment to toll the deadline, particularly given the fact that a
Rule 12(b)(6) motion can be transformed to a motion for summary judgment); 10A
Charles Allen Wright, et al., Federal Practice and Procedure § 2718 (4th ed.
2017) (noting that there is “no compelling reason for treating a motion originally
made under Rule 56 differently from one [made under Rule 12] that has been
transformed into a summary-judgment motion” and concluding that “a summaryjudgment motion made prior to an answer should have the benefit of the Rule 12(a)
language tolling the period of time in which an answer must be filed”).
While it is unclear whether a Rule 56 motion operates to toll the defendants’
response deadline, I need not decide the question, but I will require the defendants
to now file an answer.
IV.
As to the Rule 56(d)(2) request, I find that the plaintiff has been forced to
oppose the defendants’ Motion for Summary Judgment with limited information.
She lacks not only discovery but also — due to the defendants’ failure to file an
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answer — factual information regarding the defendants’ position.3 In order to
succeed on a Rule 56(d) motion, “[n]on-movants must generally file an affidavit or
declaration . . . or . . . put the district court on notice as to which specific facts are
yet to be discovered.” McCray, 741 F.3d at 484. Kimbler has done so. See
Kimbler Decl. ¶ 3, ECF No. 16-1. Moreover, as the defendants concede, see Defs.’
Reply Mem. Opp’n Summ. J. 6, ECF No. 17, Kimbler seeks discovery of evidence
that is within the control of others. “[S]ufficient time for discovery is considered
especially important when the relevant facts are exclusively in the control of the
opposing party.” Harrods Ltd., 302 F.3d at 246-47 (quoting 10B Charles Allen
Wright, et al., Federal Practice and Procedure § 2741 (3d ed. 1998)). In addition,
Kimbler seeks to demonstrate that the defendants acted maliciously in order to
overcome the immunity and qualified privilege defenses, and “summary judgment
prior to discovery can be particularly inappropriate when a case involves complex
factual questions about intent and motive.” Id. at 247.
Under the circumstances, I believe it is appropriate to grant the plaintiff
limited discovery before ruling on the defendants’ Motion for Summary Judgment.
I am required to consider limitations on discovery proportional to the needs of the
case, including the importance of discovery in resolving the issues and whether its
burden and expense outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). In light
3

There is no indication in the record that the parties have provided initial
disclosures as required by Federal Rule of Civil Procedure 26(a)(1).
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of the limited issues concerning immunity and qualified privilege presented by the
Motion for Summary Judgment and the limited benefit of discovery in resolving
those issues, I will permit discovery but limit the plaintiff to (1) conduct a
deposition by oral examination of defendant Spear solely as to matters relevant to
the defenses of immunity and qualified privilege and (2) require the defendants
prior to the deposition to provide to the plaintiff a full copy of the Service
Agreement and Business Associate Addendum between Hannleb and MSHA,
before ruling on the Motion for Summary Judgment.
V.
The plaintiff’s request for discovery under Rule 56(d)(2) is GRANTED only
to the limited extent described above. The discovery permitted must be completed
within 30 days of this date. The plaintiff may file a supplemental response to the
Motion for Summary Judgment within 14 days after completion of the permitted
discovery and the defendants may file a reply within 7 days thereafter. Decision
on the Motion for Summary Judgment (ECF No. 7) is DEFERRED pending the
foregoing. The defendants are directed to file an answer to the Complaint prior to
the deposition of defendant Spears, and in no event later than 14 days from this
date.
It is so ORDERED.

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ENTER: April 11, 2017
/s/ James P. Jones
United States District Judge

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