Wiese v. Becerra ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 WILLIAM WIESE, an individual; No. 2:17-cv-903 WBS KJN JEERMIAH MORRIS, an individual; 13 LANCE COWLEY, an individual; SHERMAN MACASTON, an individual; 14 CLIFFORD FLORES, individually ORDER and as trustee of the Flores 15 Family Trust; L.Q. DANG, an individual; FRANK FEDEREAU, an 16 individual; ALAN NORMANDY, an individual; TODD NIELSEN, an 17 individual; THE CALGUNS FOUNDATION; FIREARMS POLICY 18 COALITION; FIREARMS POLICY FOUNDATION; and SECOND AMENDMENT 19 FOUNDATION, 20 Plaintiffs, 21 v. 22 XAVIER BECERRA, in his official capacity as Attorney General of 23 California; and MARTHA SUPERNOR, in her official capacity as 24 Acting Chief of the Department of Justice Bureau of Firearms, 25 Defendants. 26 27 ----oo0oo---- 28 1 The court previously lifted the stay in this case after 2 the Supreme Court vacated the judgment in Duncan v. Bonta, Case 3 No. 3:17-cv-1017-BEN (JLB) (S.D. Cal.), and the Ninth Circuit 4 remanded Duncan for further proceedings consistent with New York 5 State Rifle & Pistol Ass’n, Inc. v Bruen, 142 S. Ct. 2111 (2022). 6 (Docket No. 116.) Having considered plaintiffs’ request to move 7 for summary judgment without any discovery and defendants’ 8 request for discovery, the court allowed plaintiffs to file their 9 motion for summary judgment forthwith, with the caveat that the 10 court would consider a request for discovery under Federal Rule 11 of Civil Procedure 56(d) after plaintiffs moved for summary 12 judgment, should defendants feel discovery was necessary to 13 respond to plaintiffs’ motion. 14 Plaintiffs have since moved for summary judgment and 15 defendants filed a counter-motion for summary judgment. (Docket 16 Nos. 123, 125.) Defendants contend that the evidence as 17 submitted by the parties shows their entitlement to summary 18 judgment, but they also request the opportunity to conduct 19 discovery in accordance with Rule 56(d) if the court is inclined 20 to grant judgment for plaintiffs. (Docket No. 125-1 at 52.) 21 Rule 56(d) states that: 22 If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts 23 essential to justify its opposition, the court may: 24 (1) defer considering the motion or deny it; 25 (2) allow time to obtain affidavits or declarations or to take discovery; or 26 (3) issue any other appropriate order. 27 28 1 (Fed. R. Civ. P. 56.) 2 The court declines to opine at this stage whether it is 3 likely to grant or deny summary judgment as to any party. 4 Nevertheless, courts generally employ a “generous approach toward 5 granting [Rule 56(d)] motions,” Berkeley v. Home Ins. Co., 68 6 F.3d 1409, 1414 (D.C. Cir. 1995), and “the Supreme Court has 7 restated the rule as requiring, rather than merely permitting, 8 discovery ‘where the nonmoving party has not had the opportunity 9 to discover information that is essential to its opposition,’” 10 Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 11 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 12 n. 5, (1986)). See also Burlington N. Santa Fe R.R. Co. v. 13 Assiniboine & Sioux Tribes of Fort Peck Rsrv., 323 F.3d 767, 773 14 (9th Cir. 2003) (Rule 56(d) requests should granted “fairly 15 freely” where a party has not had “a realistic opportunity to 16 pursue discovery relating to its theory of the case.”). 17 Here, however, defendants have not shown “by affidavit 18 or declaration” the specific reasons why they cannot present all 19 the facts necessary for their defense. Rather, they vaguely 20 state in their briefing that there are “numerous facts that 21 Plaintiffs identify as material but about which Defendants have 22 had no opportunity to take discovery” such as “the standing of 23 the individual and organizational plaintiffs” or “the methodology 24 and reliability” of a study cited by plaintiffs. (See Docket No. 25 125-1 at 53.) Defendants also do not estimate how long they need 26 for discovery, nor what specific discovery they request, such as 27 depositions, interrogatories, requests for production, requests 28 for admission, or otherwise. Accordingly, the court cannot nee enn eee □□□ nnn nn nn on on nn nnn ee EI I EO 1 determine what discovery may be appropriate or necessary at this 2 time. 3 In light of the foregoing, defendants are hereby 4 ORDERED to file the appropriate affidavit or declaration with the 5 court setting forth the information required under Rule 56(d), 6 and shall specifically state what discovery defendants request, 7 including the identity of all witnesses they wish to depose and a 8 description of the nature of the questions they wish to address 9 to those witnesses. Defendants’ proffer shall also include any 10 interrogatories and/or requests they intend to serve upon 11 plaintiffs and how long they need to conduct such discovery. The 12 declaration or affidavit shall be filed within seven days of the 13 date of this order. Plaintiffs may file any response to 14 defendants’ submission within seven days. The court will then 15 review the parties’ submissions and set a hearing on defendants’ 16 request for discovery if necessary. 17 IT IS SO ORDERED. 18 | Dated: June 9, 2023 he bloom HK Ad. KE 19 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28