Norton v. American Home Mortgage Servicing Inc et al

Filing 36

ORDER denying 34 Motion for Order, signed by Chief Judge William C Griesbach on 12/17/2012. Plaintiff will have fourteen days to respond to Defendants motion for summary judgment. If Plaintiff fails to respond within the time allotted, I will decide Defendants motion for summary judgment on the record before the Court. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DON A. NORTON,
Plaintiff,
v.

Case No. 11-C-842

AMERICAN HOME MORTGAGE
SERVICING, INC.,
Defendant.

ORDER DENYING PLAINTIFF’S MOTION FOR ADDITIONAL DISCOVERY
UNDER RULE 56(d)

In lieu of responding to Defendant’s pending motion for summary judgment, Plaintiff filed
a motion (ECF No. 34) pursuant to Federal Rule of Civil Procedure 56(d)1 to allow time for
additional discovery. Plaintiff maintains that he cannot adequately respond to Defendant’s motion
for summary judgment because Defendant has failed to comply with his discovery requests.2 For
the following reasons, Plaintiff’s motion will be denied.
In order to satisfy the requirements of Rule 56(d) for a continuance, the movant must
identify “by affidavit the specific facts that further discovery would reveal, and explain why those

1

Plaintiff in his motion cites Rule 56(4)(d). There is no subsection under (4)(d) in the
rule, but given the context of his motion, I construe the motion to be made pursuant to Rule
56(d).
2

Plaintiff elected not to file a reply brief in response to Defendant’s brief in opposition
to Plaintiff’s current Rule 56 motion. Therefore, I will consider Plaintiff’s motion based on the
briefs submitted by the parties.

facts would preclude summary judgment.” Tatum v. City & Cnty of San Fransisco, 441 F.3d 1090,
1100 (9th Cir. 2006); see also Ezpeleta v. Sisters of Mercy Health Corp., 621 F. Supp. 1262, 1276
(N.D. Ind. 1985) (“Plaintiff has not met the burden of showing that matters she sought would
change the result of the case.”). Moreover, the justification for a Rule 56(d) motion “must be
genuine and convincing to the court rather than merely colorable.” Pfeil v. Rodgers, 757 F.2d 850,
856 (7th Cir. 1985); see also Lamb’s Patio Theatre v. Universal Film Exchs., Inc., 582 F.2d 1068,
1071 (7th Cir. 1978). Put simply, the benefit of the additional time for discovery to respond to
summary judgment is not available merely because it is requested. To warrant the grant of a
continuance, Plaintiff must show “(i) good cause for his inability to have discovered or marshalled
the necessary facts earlier in the proceedings; (ii) a plausible basis for believing that additional facts
probably exist and can be retrieved within a reasonable time; and (iii) an explanation of how those
facts, if collected, will suffice to defeat the pending summary judgment motion.” Rivera-Torres
v. Rey-Hernandez, 502 F.3d 7, 10 (1st Cir. 2007).
Plaintiff states that Defendant has set forth two primary arguments in support of its motion
for summary judgment: (1) Defendant is not a “debt collector” because at the time it began
servicing Plaintiff’s loan, his loan was not in default and (2) Plaintiff has no evidence that
Defendant intended to harass or annoy him with robocalls. (Pl. Mot. ¶ 2, ECF No. 34.) Plaintiff
lists seven different discovery document information that Defendants did not provide to him after
his requests for production. Plaintiff argues that because Defendant has failed to comply with his
discovery demands, he is entitled to an extension of time to respond to Defendant’s motion for
summary judgment.

2

Plaintiff’s argument fails because there is no evidence he was diligent in trying to obtain
the discovery he now claims he lacks. He never filed a motion to compel Defendants to comply
with his discovery demands, and the time to do so has expired. As an attorney himself, Plaintiff
would be well aware of the procedural rules that allow a party to obtain an order from the court
compelling a party to provide discovery that has been properly requested. A party cannot simply
ignore the deadlines set by the court and then demand an extension to seek such assistance after
the time to do so has expired. Defendants explain in their response that they have attempted to
cooperate with Plaintiff in providing him with the discovery he sought, but even if they did not, it
is too late in the day for Plaintiff to use that as an excuse for an extension of time to respond to
Defendant’s motion.
Plaintiff also fails to explain what facts or evidence he believes he could obtain from such
discovery that he needs in order to respond to Defendant’s motion. It is not enough to simply
complain that Defendant has not responded to his discovery demands. As noted above, in order
to satisfy the requirements of Rule 56(d) for a continuance, the movant must identify “by affidavit
the specific facts that further discovery would reveal, and explain why those facts would preclude
summary judgment.” Tatum v. City & Cnty of San Fransisco, 441 F.3d at 1100. Plaintiff has failed
to do so here.
Defendant offers additional argument as to why Plaintiff’s discovery requests have either
been complied with or are irrelevant to its motion for summary judgment. Sufficient reason to
deny Plaintiff’s motion has already been stated, however, and there is no need to go further.
Accordingly, for the reasons stated, Plaintiff’s motion for continuance (ECF No. 34) pursuant to
Rule 56(d) is DENIED. Plaintiff will have fourteen days to respond to Defendant’s motion for
3

summary judgment. If Plaintiff fails to respond within the time allotted, I will decide Defendant’s
motion for summary judgment on the record before the Court.
SO ORDERED this

17th

day of December, 2012.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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