Willis v. Kiser et al

Filing 79

ORDER Denying Plaintiff's 66 Motion for Extension of Time to Complete Discovery, signed by Magistrate Judge J Richard Creatura. (GMR- cc: pltf)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 DARREL PATRICK WILLIS, 11 Plaintiff, 13 ORDER ON MOTION FOR EXTENSION v. 12 CASE NO. 3:17-cv-05373-BHS-JRC NICK KISER, et al., Defendants. 14 15 16 The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate 17 Judge J. Richard Creatura. Currently pending before the Court is Plaintiff’s “Letter/Request for 18 Extension of Time to Complete Discovery,” which the Court interprets as a motion for extension. 19 Dkt. 66. 20 The Court notes that plaintiff filed his motion for extension before the Court entered its 21 report and recommendation addressing defendants’ motion for summary judgment. See Dkts. 66, 22 76. The Court should have addressed this motion before entering its report and recommendation, 23 but failed to do so because of an administrative error. 24 ORDER ON MOTION FOR EXTENSION - 1 1 Therefore, the Court has evaluated the motion in retrospect to determine if it would have 2 changed this Court’s recommendations in any way. After completing that analysis, this Court 3 concludes that it would have denied the motion even if it had made a ruling before entering its 4 report and recommendation, and, therefore, the Court is not extending the deadlines, or changing 5 its Report and Recommendation. Thus, plaintiff’s case was not prejudiced by the Court’s 6 oversight. 7 Plaintiff’s motion for extension appears to make two similar, but distinguishable, 8 requests. First, plaintiff appears to request additional time to respond to defendants pending 9 motion for summary judgment. Dkt. 66. However, plaintiff has now filed a response to the 10 motion for summary judgment, Dkt. 69, and the Court has already considered the response 11 before it entered a report and recommendation addressing the motion for summary judgment. 12 Dkt. 76. Therefore, insofar as plaintiff requested an extension to respond to the motion for 13 summary judgment, plaintiff’s motion is denied as moot. 14 Second, plaintiff asked that the Court stay defendants’ motion for summary judgment and 15 allow additional time for discovery. Dkt. 66. Federal Rule of Civil Procedure 56(d) provides that 16 a non-moving party may seek a continuance of a summary judgment motion if the party shows 17 that, for specified reasons, it cannot present facts essential to justify opposition to the pending 18 summary judgment motion. The party requesting a continuance must show that: “(1) it has set 19 forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts 20 sought exist; and (3) the sought after facts are essential to oppose summary judgment.” Family 21 Home and Finance Center, Inc. v. Federal Home Loan Morg. Corp., 525 F.3d 822, 823 (9th Cir. 22 2008). Failure to comply with these requirements is a proper ground to deny discovery and 23 24 ORDER ON MOTION FOR EXTENSION - 2 1 proceed on summary judgment. See Weinberg v. Whatcom County, 241 F.3d 746, 751 (9th Cir. 2 2001). 3 Here, plaintiff failed to adhere to the requirements of Rule 56(d). He did not submit an 4 affidavit or declaration indicating what specific facts he hopes to elicit through additional 5 discovery, he did not explain why additional discovery was necessary to properly prepare an 6 opposition to summary judgment. See Dkt. 66. Rather, he has summarily requested that the Court 7 stay a decision as to defendants’ summary judgment motion until additional discovery can be 8 pursued. Thus, plaintiff failed to adhere to the requirements of Rule 56(d). Therefore, plaintiff’s 9 motion for extension is denied. 10 In light of this Court’s evaluation of plaintiff’s motion for extension, it is not inclined to 11 change any portion of the Report and Recommendation previously filed on December 28, 2019. 12 Dkt. 76. 13 Dated this 10th day of January, 2019. 14 15 16 A 17 J. Richard Creatura United States Magistrate Judge 18 19 20 21 22 23 24 ORDER ON MOTION FOR EXTENSION - 3

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