Douglass v. Mesa, City of ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Steele Douglass, No. CV-17-04686-PHX-SMB 10 Plaintiff, ORDER 11 v. 12 City of Mesa, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff David Steele Douglass’ Declaration Regarding 16 Deferment of Consideration of Defendants’ Motion for Summary Judgment and Allowing 17 Time to Obtain Affidavits or Declarations or to Take Discovery. (Doc. 36, “Req.”) 18 Defendants1 oppose the request, (Doc. 39, “Opp.”), and Plaintiff replied, (Doc. 41, 19 “Repl.”). Plaintiff requests oral argument, but the Court elects to resolve the request 20 without it. LRCiv 7.2(f). Plaintiff appears to request the Court defer considering 21 Defendants’ summary judgment motion under Rule 56(d)(2).2 Having considered the 22 pleadings and relevant law, the Court denies Plaintiff’s request as explained below. 23 I. LEGAL STANDARD 24 Federal Rule of Civil Procedure 56(d) provides that “[i]f a nonmovant shows by 25 affidavit or declaration that, for specified reasons, it cannot present facts essential to justify 26 its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to 27 1 Defendants include the City of Mesa, Clyde Spillers, Steven Hether, Jose Rodriguez, 28 Brett Metcalf, and Thomas McKnight. 2 Plaintiff moves under Rule 56(d), but identifies no specific subsection. 1 obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate 2 order.” Fed. R. Civ. P. 56(d).3 Rule 56(d) creates “a device for litigants to avoid summary 3 judgment when they have not had sufficient time to develop affirmative evidence.” United 4 States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). “The burden is on 5 the party seeking additional discovery to proffer sufficient facts to show that the evidence 6 sought exists and that it would prevent summary judgment.” Okabayashi v. Travelers 7 Home & Marine Ins. Co., No. CV-17-03612-PHX-DJH, 2019 WL 1059982, at *3 (D. Ariz. 8 Mar. 6, 2019) (citing Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 9 2001)). 10 To prevail under Rule 56(d), the moving party must show: “(1) that they have set 11 forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) 12 that the facts sought exist, and (3) that these sought-after facts are ‘essential’ to resist the 13 summary judgment motion.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. 14 Corp., 525 F.3d 822, 827 (9th Cir. 2008); see California v. Campbell, 138 F.3d 772, 779 15 (9th Cir. 1998) (noting same three elements). Thus, a party requesting relief under Rule 16 56(d) must “make clear what information is sought and how it would preclude summary 17 judgment.” Nicholas v. Wallenstein, 266 F.3d 1083, 1088-89 (9th Cir. 2001). “Failure to 18 comply with these requirements ‘is a proper ground for denying discovery and proceeding 19 to summary judgment.’” Family Home & Fin. Ctr., 525 F.3d at 827 (quoting Campbell, 20 138 F.3d at 779). 21 II. DISCUSSION 22 Plaintiff requests the Court defer considering Defendants’ summary judgment 23 motion so that he may “obtain affidavits or declarations or take discovery.” (Req. at 1.) In 24 support, Plaintiff declares he cannot oppose Defendants’ summary judgment motion 25 exhibits because they “set[] forth facts that are not fully disclosed in the police reports or 26 other papers that [they] provided in discovery.” (Id.) More specifically, Plaintiff claims 27 3 According to the Ninth Circuit in Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 n. 8 (9th Cir. 2011), cases interpreting Rule 56(f) apply to Rule 56(d). See Slama v. City of Madera, 28 No. 1:08-cv-810 AWI GSA, 2012 WL 1067198, at *2 n.4 (E.D. Cal. Mar. 28, 2012) (acknowledging Rule 56(f)’s “relocation” to Rule 56(d)). 1 “[t]he allegations in the [summary judgment exhibit] affidavits . . . will need to be 2 investigated through depositions or other discovery to respond adequately to the motion 3 for summary judgment.” (Id. at 2.) Plaintiff further claims he “[o]nly recently . . . had the 4 opportunity to complete review of these disclosures.” (Id. at 3.) He also claims his witness, 5 Lance White, “has become an uncooperative witness.” (Id. at 4.) For these main reasons, 6 Plaintiff requests the Court defer consideration on the summary judgment motion. 7 In response, Defendants argue Plaintiff’s request should be denied because he does 8 not satisfy Rule 56(d)’s substantive or procedural requirements. (Opp. at 2.) They argue 9 the substantive requirements are unsatisfied because Plaintiff fails to “identify any facts 10 that he expects to obtain with additional discovery, and that, even if obtained, would 11 preclude summary judgment.” (Id.) Defendants further argue the procedural requirements 12 are not satisfied because “[d]iscovery has closed, Plaintiff had adequate time to conduct 13 discovery, Plaintiff failed to take any depositions or to obtain any affidavits, and Plaintiff 14 provides no basis for modifying the existing Scheduling Order.” (Id.) The Court finds 15 Defendants’ arguments persuasive. 16 Plaintiff’s request falls short of meeting Rule 56(d)’s threshold requirements. See 17 Family Home & Fin. Ctr., 525 F.3d at 827. Plaintiff identifies no specific facts that he 18 hopes to obtain through additional discovery, let alone how such facts would be essential 19 to oppose Defendants’ summary judgment motion. Id. Rather, he appears to simply be 20 requesting more time to investigate discovery already provided to him. (See Req. at 2 (“The 21 allegations . . . will need to be investigated.”)). This is inadequate for Rule 56(d) relief. See 22 Mackey v. Pioneer Nat’l Bank, 867 F.2d 520, 524 (9th Cir. 1989) (“A movant cannot 23 complain if [he] fails diligently to pursue discovery before summary judgment.”). Granting 24 Rule 56 relief under these circumstances, where Plaintiff identifies no specific information 25 that would be obtained or how such information could be used to oppose summary 26 judgment would cause unnecessary delay for both parties. See Nicholas, 266 F.3d at 1088- 27 89. In other words, and contrary to Rule 56(d)’s requirements, Plaintiff does not “make 28 clear what information is sought and how it would preclude summary judgment.” Cf. id. 1|| (quoting Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998)). As a consequence, the Court 2|| finds Plaintiff's requested relief unwarranted. Family Home & Fin. Ctr., 525 F.3d at 827. 3 Accordingly, 4 IT IS ORDERED DENYING Plaintiff's Request, (Doc. 36). 5 Dated this 28th day of January, 2020. 6 7 8 C > +S ° Gated States District ludge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-