Barton v. Delfgauw et al

Filing 152

ORDER striking 109 Motion to Compel; striking 115 Second Motion Judicial Notice Delfgauw Fraud Conviction; striking 117 Second Motion Judicial Notice Validiform; striking 119 Second Motion Judicial Notice IP Geolocation Inaccuracy; striking 121 Second Motion Judicial Notice of IP Address 8.8.8.8; striking 122 Motion for Summary Judgment; granting 139 Motion to Continue or Strike Motion for Summary Judgment, signed by Judge J Richard Creatura. (KAM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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NATHEN BARTON,

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CASE NO. 3:21-cv-05610-JRC

Plaintiff,

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ORDER GRANTING
DEFENDANTS’ MOTION

v.
JOE DELFGAUW, et al.,
Defendants.

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This matter is before the Court on the parties’ consent. Pending before the Court is

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plaintiff’s motion for summary judgment (Dkt. 122) and defendants’ “motion to continue or

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strike motion for summary judgment.” Dkt. 139.

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BACKGROUND

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Plaintiff, proceeding pro se, brought this action based on alleged violations of the

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Telephone Consumer Protection Act and state law. See Dkt. 83. Defendants filed a counterclaim

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alleging that plaintiff consented to be contacted using a different name so that he may bring a

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federal lawsuit. See Dkt. 39 at 10–13. On March 14, 2022, plaintiff filed a motion for summary

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ORDER GRANTING DEFENDANTS’ MOTION - 1

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judgment in which he appears to be challenging defendants’ ability to prove plaintiff consented

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to be contacted. Dkt. 122. On April 1, 2022, defendants filed a “motion to continue or strike

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motion for summary judgment,” which appears to be a motion for relief under Federal Rule of

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Civil Procedure 56(d), because of outstanding discovery responses. See Dkt. 139 at 2. Plaintiff

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opposes the motion and argues that he responded to defendants’ discovery requests on the same

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day defendants filed their motion. Dkt. 141 at 3–5. There are currently three discovery-related

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motions pending before the Court. See Dkts. 109, 136, 149. The deadline to complete discovery

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is set for June 22, 2022, and the dispositive motion deadline is set for July 22, 2022. Dkt. 124.

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DISCUSSION

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I.

Legal Standard

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Under Federal Rule of Civil Procedure 56(d), a nonmovant may avoid summary

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judgment “when they have not had sufficient time to develop affirmative evidence.” United

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States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). To do so, the party must

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set forth in an affidavit or declaration: (1) “specific facts it hopes to elicit from further

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discovery,” (2) that “the facts sought exist,” and (3) that “the sought-after facts are essential to

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oppose summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp.,

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525 F.3d 822, 827 (9th Cir. 2008). “Failure to comply with these requirements is a proper ground

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for denying discovery and proceeding to summary judgment.” Id. (internal quotation marks

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omitted). However, Rule 56(d) relief is generously granted where a summary judgment motion is

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filed “before a party has had any realistic opportunity to pursue discovery relating to its theory of

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the case.” Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes of the Fort Peck Rsrv.,

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323 F.3d 767, 773–74 (9th Cir. 2003). Unless the nonmovant has failed to diligently pursue

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ORDER GRANTING DEFENDANTS’ MOTION - 2

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discovery, such relief “should be granted ‘almost as a matter of course.’” Id. (quoting Wichita

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Falls Office Ass’n v. Banc One Corp., 978 F.2d 915, 919 n.4 (5th Cir. 1992)).

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Here, defendants appear to be diligently pursuing discovery. Defendants’ attorney

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submitted a declaration indicating that summary judgment “is not yet ripe as there are

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outstanding discovery responses from both sides.” Dkt. 140 at 2. Indeed, it appears that the

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parties are in the middle of exchanging discovery and there are currently three discovery-related

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motions pending before the Court. See Dkts. 109, 136, 149. Further, the deadline for discovery in

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this action is set for June 22, 2022, which is based on the parties’ joint status report from

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November 4, 2021. See Dkts. 37 at 5, 124 at 2. These circumstances call for Rule 56(d) relief.

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In his opposition, plaintiff claims he responded to defendants’ discovery requests on

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March 30, 2022. See Dkt. 141 at 3. It is unclear if defendants received these responses before

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they filed their motion. However, even if they did, plaintiff provided those responses two weeks

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after he filed his motion for summary judgment and two days before defendants’ opposition brief

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was due. It is also not evident whether defendants were satisfied with plaintiff’s responses or

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whether they intended to meet and confer.

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The Court notes that defendants’ motion does specify which facts they seek to oppose

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plaintiff’s motion for summary judgment. However, the Ninth Circuit has held that when a party

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is seeking discovery, they “cannot be expected to frame [their] motion with great specificity as to

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the kind of discovery likely to turn up useful information, as the ground for such specificity has

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not yet been laid.” Burlington N., 323 F.3d at 774. At this point in the litigation, it is reasonable

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that defendants are seeking discovery regarding plaintiff’s consent to be contacted, which is at

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the core of plaintiff’s motion for summary judgment.

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ORDER GRANTING DEFENDANTS’ MOTION - 3

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Finally, although the Court is liberally construing defendants’ motion this time, going
forward, defendants must cite proper authority for their motions. They did not do so here.

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CONCLUSION

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The Court grants defendants’ motion, which is construed as a motion for Rule 56(d)

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relief. Dkt. 139. Accordingly, the Court will strike plaintiff’s motion for summary judgment and

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the corresponding motions for judicial notice with leave to re-file after the close of discovery.

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Dkts. 109, 115, 117, 119, 121, 122. Defendants must also file any motions for summary

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judgment after the close of discovery.

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Dated this 12th day of April, 2022.

A

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J. Richard Creatura
Chief United States Magistrate Judge

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ORDER GRANTING DEFENDANTS’ MOTION - 4