Opinion
Case No. 2:99-CV-503TC
September 8, 2003
ORDER
In this products liability case, Plaintiffs Timothy Tabor and Debra Tabor and Farmers Insurance seek damages stemming from a fire that destroyed the Tabors' home on November 19, 1998. The Tabors and Farmers (collectively, the "Plaintiffs") allege that a food dehydrator, a "Snackmaster" that the Tabors allegedly bought from Defendant UVAL Shopko Stores, Inc. ("Shopko"), caused the fire.
In April 1997, Defendants The Metal Ware Corporation ("Metal Ware") and Newco of Two Rivers, Inc. ("Newco") purchased the assets of Nesco/American Harvest Corporation ("American Harvest"), the company that the Plaintiffs claim manufactured the defective food dehydrator. Metal Ware and Newco contend that both a "No Assumption of Liabilities" clause in their asset purchase agreement and the law governing successor companies' legal obligations preclude any liability on their part.
This matter is before the court on Metal Ware and Newco's motion for summary judgment. Additionally, the Tabors, Fanners, and Shopko move for an extended discovery period pursuant to Federal Rule of Civil Procedure 56(f). For the reasons set forth below, Metal Ware and Newco's motion for summary judgment is GRANTED IN PART and DENIED IN PART. Additionally, the Tabors, Farmers, and Shopko's motion under Rule 56(f) is DENIED.
BACKGROUND
I. Factual Background
Recently, in their deposition testimony, the Tabors have admitted that they bought the allegedly defective food dehydrator in the spring of 1996. (See Timothy Tabor Dep., attached as Ex. A to Metal Ware's Supplemental Mem., at 39-40; Debra Tabor Dep., attached as Ex. B to Metal Ware's Supplemental Mem., at 12.) The food dehydrator had been the subject of a manufacturer's recall in August 1995 because of a heating element that "present[ed] a fire hazard." (Third Amended Compl. ¶ 16.)
The Third Amended Complaint alleges that the Tabors bought their dehydrator from Shopko in July 1997.
The Plaintiffs allege that American Harvest manufactured the Tabors' food dehydrator. Newco, a subsidiary of Metal Ware, purchased the assets of American Harvest on April 2, 1997.
Metal Ware formed Newco for the purpose of purchasing the assets in question. After the transaction, "Newco merged with its parent corporation Metal Ware, and ceased to exist." (Metal Ware's Supp. Mem. at 2 n. 1.)
The Asset Purchase Agreement contained a "No Assumption of Liabilities" clause, which provided in part that Newco "shall not assume or become liable for any contracts, obligations or liabilities of Seller (including, but not limited to, . . . product liability . . .) and Seller shall indemnify and hold Purchaser harmless from any liability arising out of any such contracts, obligations, or liabilities." (Agreement, attached as Ex. A to Metal Ware's Supp. Mem., at 7.)
Shopko claims that "Newco and then Metal Ware have continued to manufacture dehydrators under the American Harvest trade name." (Shopko's Opp'n Mem. at 5.) The Third Amended Complaint alleges that "[Defendant] Englewood [Appliance Company, Inc.] was at all relevant times a distributor for American Harvest, Newco and Metal Ware, and was the distributor of the dehydrator." (Third Amended Compl. ¶ 13.)
II. Procedural Background
On June 29, 1999, the Tabors filed their original Complaint in Case No. 2:99-CV-503TC. Farmers filed its subrogation Complaint in Case No. 2:00-CV-898TC on November 16, 2000. Metal Ware and Newco filed a motion for summary judgment in Case No. 2:00-CV-898TC on March 8, 2002.
The court granted a motion to consolidate the cases on October 15, 2002. Also on October 15, 2002, the court granted a motion to continue discovery under Federal Rule of Civil Procedure 56(f), denied Metal Ware and Newco's first motion for summary judgment without prejudice, set anew motion cut-off date for January 15, 2003, and granted a motion to join Englewood Electric as a party defendant. (See Order of 10/15/02 in Case No. 2:00-CV-898TC.)
On October 10, 2002, Farmers filed a Second Amended Complaint, which named Englewood Electric Supply Company, Inc. as a Defendant. On October 29, 2002, Farmers filed a Third Amended Complaint, which named Englewood Appliance Company, Inc. ("Englewood") as a Defendant. Englewood Electric Supply Company, Inc., was voluntarily dismissed without prejudice on November 20, 2002.
Shopko filed a cross-claim against Metal Ware and Newco on November 7, 2002. On June 20, 2003, Shopko filed a cross-claim against American Harvest and Englewood. Englewood has not filed a cross-claim in this case. Metal Ware and Newco filed a second motion for summary judgment on January 15, 2003.
ANALYSIS
I. Legal Standard
Under Federal Rule of Civil Procedure 56, a court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The party moving for summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 323; Adler, 144 F.3d at 670-71. A movant "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler, 144 F.3d at 671. In applying this standard, the court views the factual record and must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997).
Once the moving party has carried its initial burden, Rule 56(e) requires the nonmovant to "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."Adler, 144 F.3d at 671 (quoting Fed.R.Civ.P. 56(e)). The specific and pertinent facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and references to the pleadings will not suffice. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Rule 56 contemplates the entry of summary judgment in cases where the non-movant has had "adequate time for discovery." Celotex, 477 U.S. at 322; see Vaughn v. U.S. Small Business Admin., 65 F.3d 1322, 1325 n. 1 (6th Cir. 1995). Under Federal Rule of Civil Procedure 56(f), a court may delay ruling on a motion for summary judgment or refuse summary judgment outright "where the non-moving party has not had the opportunity to discover information that is essential to his opposition." Int'l Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc., 52 F.3d 901, 905 (10th Cir. 1995); see Fed.R.Civ.P. 56(f). The party seeking an extension under Rule 56(f) must provide affidavits indicating why that party cannot "present by affidavit facts essential to justify the party's opposition." Fed.R.Civ.P. 56(f); Int'l Surplus Lines Ins. Co., 52 F.3d at 905.
Rule 56(f) provides as follows:
Should it appear from the affidavits of a party opposing [a motion for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Fed.R.Civ.P. 56(f).
Whether to grant a Rule 56(f) motion is a matter within a court's discretion. See. e.g., Int'l Surplus Lines Ins. Co., 52 F.3d at 904 (stating that an appellate court "review[s] a district court's refusal to grant a Rule 56(f) motion for abuse of discretion"). Courts, however, should treat Rule 56(f) affidavits "liberally unless dilatory or lacking in merit." Lewis v. City of Fort Collins, 903 F.2d 752, 758 (10th Cir. 1990) (quoting Patty Precision v. Brown Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984)).
Lewis v. City of Fort Collins, 903 F.2d at 760, was recognized as abrogated on other grounds in Redpath v. City of Overland Park, 857 F. Supp. 1448, 1456 n. 11 (D. Kan. 1994).
II. Metal Ware and Newco's Motion for Summary Judgment
Metal Ware and Newco make the following arguments in their motion for summary judgment: (1) under Utah law, a successor corporation generally does not assume responsibility for a predecessor company's liabilities, and no exception to this rule applies in the present case; (2) the Plaintiffs have not demonstrated that Metal Ware and Newco distributed the Tabors' dehydrator, and in fact, undisputed evidence demonstrates that Metal Ware and Newco did not distribute the Tabors' dehydrator; and (3) the Asset Purchase Agreement expressly precluded Metal Ware and Newco's liability for American Harvest's obligations and liabilities, including products liability. The Tabors, Farmers, and Shopko (collectively, the "nonmovants") argue that Metal Ware and Newco have not complied with discovery requests and consequently that further discovery is needed on the issue of distribution. The Tabors, Farmers, Shopko, and Englewood (collectively, the "nonmovants"), argue (1) that Englewood, which was joined as a party on October 29, 2002, should be given a reasonable opportunity to conduct discovery, and (2) that Metal Ware and Newco could be liable under the "product line" and "continuity of enterprise" theories. Additionally, Farmers contends that Metal Ware and Newco can be liable under a failure to warn theory.
A. Are Metal Ware and Newco Liable as Distributors?
"[U]nder Utah strict products liability law, a plaintiff may sue the distributor of an unreasonably dangerous product so long as the distributor is sufficiently placed within the chain of distribution of the product from the manufacturer to the ultimate consumer." Jackson v. Phillip Morris, Inc., 46 F. Supp.2d 1217, 1229 (D. Utah 1998); see also Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 156-58 (Utah 1979) (adopting section 402A of the Restatement (Second) of Torts (1965) as the law of Utah). As explained below, no evidence shows that Metal Ware and Newco distributed the Dehydrator. And in view of the record in this case, no grounds exist to grant the Tabors, Farmers, and Shopko's Rule 56(f) motion.
1. The Rule 56(f) Motion
The Tabors, Farmers, and Shopko contend that Metal Ware and Newco's alleged failure to comply with discovery requests warrants an extended discovery and a denial of the motion for summary judgment. See Fed.R.Civ.P. 56(f); Int'l Surplus Lines Ins. Co., 52 F.3d at 905 (stating that under Federal Rule of Civil Procedure Rule 56(f), a court may delay ruling on a motion for summary judgment or refuse summary judgment outright "where the non-moving party has not had the opportunity to discover information that is essential to his opposition").
A review of the case docket reveals that no party has filed any motions to compel or other discovery motions. Additionally, the Tabors, Farmers, and Shopko have not explained why the information they requested — namely, information concerning the manufacture and wiring of the Tabors' dehydrator — is relevant to the issue of Metal Ware and Newco's alleged distribution of the Tabors' dehydrator. Further, given the court's previous extension of the discovery period, these nonmovants' requests for additional discovery are not persuasive. For these reasons, another extension of the discovery period is not appropriate as to the Tabors, Fanners, and Shopko, and the court denies their requests for a denial of summary judgment pursuant to Federal Rule of Civil Procedure 56(f).
The court on October 15, 2002 granted Farmers's Federal Rule of Civil Procedure 56(f) motion and set a new motion filing date for January 15, 2003. (See Order of 10/15/02 in Case No. 2:00-CV-898TC.)
2. Does the Recent Addition of Englewood to the Case Warrant Denial of the Motion for Summary Judgment?
As discussed above, a court under Federal Rule of Civil Procedure 56(f) may delay ruling on a motion for summary judgment or refuse summary judgment outright "where the non-moving party has not had the opportunity to discover information that is essential to his opposition." Int'l Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc., 52 F.3d 901, 905 (10th Cir. 1995); see Fed.R.Civ.P. 56(f). Metal Ware and Newco "do not disagree that a newly added party should be allowed sufficient time to conduct relevant discovery and otherwise get up to speed on a case." (Metal Ware's Reply Mem. re Mot. Summ. J. at 7.) Englewood, however — which became a party on October 29, 2002 — has not filed a cross-claim against Metal Ware and Newco, and consequently is not a party to Metal Ware and Newco's motion for summary judgment. See Nat'l Serv. Indus., Inc. v. B.W. Norton Mfg. Co., 937 P.2d 551, 556 n. 2 (Utah Ct.App. 1997) (stating that "where one co-defendant moves for summary judgment against the plaintiff on the basis that it bears no liability — any other defendant must file an apportionment cross-claim in order to have standing to oppose the other co-defendant's motion"). Consequently, the court does not consider Englewood's Rule 56(f) motion. The case will proceed as against Englewood, and the parties are directed to make requests concerning the scheduling of discovery with the United States Magistrate Judge assigned to this case.
Additionally, because the other parties have had ample time to pursue discovery, have received a previous continuance under Rule 56(f), and failed to file motions to compel discovery, an extension of discovery due to Englewood's relatively recent entry in this case is not warranted for the Tabors, Farmers, or Shopko.
3. Does a Genuine Issue of Fact Exist on the Issue of Distribution?
The nonmovants do not identify any specific facts suggesting that Metal Ware and Newco distributed the Tabors' dehydrator. Instead, the undisputed evidence establishes that the Tabors bought their dehydrator in the spring of 1996 — more than one year before Metal Ware and Newco purchased American Harvest's assets. No genuine issue of fact therefore exists as to whether Metal Ware and Newco had possession of or distributed the Tabors' dehydrator, and Metal Ware and Newco's motion for summary judgment is granted on the issue of distributor liability.
Metal Ware and Newco request an award of attorney fees because "the misinformation given by the plaintiffs [in their recent depositions] . . . has forced Metal Ware to incur significant fees and costs." (Metal Ware's Supplemental Mem. at 11.) The court declines to award attorney fees to Metal Ware and Newco.
B. Metal Ware and Newco's Liability Under the Product Line, Continuity of Enterprise, and Duty to Warn Theories
The Tabors, Farmers, and Shopko next urge the court to recognize the "product line" and "continuity of enterprise" exceptions to the general rule providing for a successor company's non-liability. Further, Farmers contends that a genuine issue of material fact exists concerning Metal Ware and Newco's liability under a failure to warn theory.
1. The Product Line and Continuity of Enterprise Theories
As a general rule of corporate law, a company that purchases another company's assets does not acquire the debts or liabilities of the seller. See Marcis Assocs., Inc. v. Neways, Inc., ("Macris I") 986 P.2d 748, 752 (Utah Ct.App. 1999), aff'd 16 P.3d 1214 (Utah 2000). Utah courts have recognized four exceptions to this general rule. See id. A successor company will not incur liability when: "(1) the purchaser expressly or impliedly agrees to assume such debts; (2) the transaction amounts to a consolidation or merger of the seller and purchaser; (3) the purchasing corporation is merely a continuation of the selling corporation; or (4) the transaction is entered into fraudulently in order to escape liability for such debts." Id. (citing Florum v. Elliot, 867 F.2d 570, 575 n. 2 (10th Cir. 1989)).
In the context of products liability law, some courts have recognized an additional, "product line" exception to the general rule of successor company non-liability. See Nieves v. Bruno Sherman Corp., 431 A.2d 826, 830-31 (N.J. 1981); (see also Tabors' Opp'n Mem. at 7 (listing cases)). The product line exception "provides that `when a corporation buys substantially all of the assets of a corporate manufacturer and thereafter continues essentially the same manufacturing operation it may be strictly liable for defects in products in the same line even though they were in fact made by the predecessor.'" Case v. Paul Troester Maschinenfabrik, 139 F. Supp.2d 428, 434 (W.D.N.Y. 2001) (quoting LaFountain v. Webb Indus. Corp., 951 F.2d 544, 547 (3rd Cir. 1991)): see also Ramirez v. Amsted Indus., Inc., 431 A.2d 811. 825 (N.J. 1981); Ray v. Alad Corp., 560 P.2d 3, 11 (Cal. 1977). Other courts have also recognized a similar, "continuity of enterprise" exception to the general rule of corporate successor non-liability. See Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 175 (5th Cir. 1985) (recognizing the "less radical" "continuity of enterprise" exception to the general rule of corporate successor non-liability); see also Garcia v. Coe Mfg. Co., 933 P.2d 243, 247 (N.M. 1997) (discussing separately the "continuing enterprise" and product line exceptions).
Utah courts have not yet defined the scope of a successor company's liability in the strict products liability law context. The nonmovants, however, emphasize the common public policy considerations underlying the product line exception and products liability law and contend that the Utah Supreme Court would impose strict products liability on a successor company under the product line and continuing enterprise theories.Compare Hanover Ltd, v. Cessna Aircraft Co., 758 P.2d 443, 446 (Utah Ct.App. 1988) (stating that "[t]he major purpose of strict liability is to place the loss caused by a defective product on those who create the risk and reap the profit by placing a defective product in the stream of commerce") (internal quotation omitted), with Nieves, 431 A.2d at 830-31 (listing considerations for holding a successor company liable for injuries caused by a predecessor company's products).
As Metal Ware and Newco explain, several courts have refused to recognize the product line exception in the absence of legislation. See Flaugher v. Cone Automatic Mach. Co., 507 N.E.2d 331, 337 (Ohio 1987) (stating "that the `product line' exception to corporate successor non-liability is a far-reaching and radical departure from traditional principles, such that its adoption is a matter for the legislature rather than the courts"); Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 175 (5th Cir. 1985) (noting reluctance of federal courts to adopt the products line theory "in Erie situations in the absence of clear authority from the highest court of a state"); Leannais v. Cincinnati, Inc., 565 F.2d 437, 441 (7th Cir. 1977) (refusing to adopt the product line exception and stating that "such broad public policy issues are best handled by legislatures with their comprehensive machinery for public input and debate"). Additionally, the Tenth Circuit, applying Colorado law, has "declin[ed] to adopt the product line theory and the expanded continuity of enterprise theory." Florom v. Elliott Mfg., 867 F.2d 570, 580 (10th Cir. 1989). In declining to recognize the product line and continuity of enterprise exceptions, the court in Florom emphasized (1) that a Colorado appellate court's statement of the "general rule of nonliability of successor corporations" had contained only four exceptions, and (2) that neither Colorado courts nor the General Assembly had indicated that expanded exceptions to the general non-liability rule existed under Colorado law. Id. at 580, 581. And in a non-product liability context, the Utah Court of Appeals in 1999 relied upon Florom, 867 F.2d at 575 n. 2, to set forth "[t]he rule for a claim based on successor liability."Macris I, 986 P.2d at 752; see also Macris Assocs., Inc. v. Newavs, Inc., 60 P.3d 1176, 1180 (Utah Ct.App. 2002) (citing Macris I, 986 P.2d at 752).
No party has argued that any of the of the four recognized exceptions to the general rule of successor corporation non-liability applies in the present case. See Marcis I, 986 P.2d at 752 (listing requirements). Additionally, no published Utah decision has hinted at adopting the two additional exceptions, much less done so. Further, as discussed above, recent Utah case law discussing successor company non-liability has relied onFlorum, 867 F.2d at 575 n. 2, where the Tenth Circuit analyzed and declined to extend the general exceptions under Colorado law. See Macris I, 986 P.2d at 752. Finally, neither the product line nor continuity of enterprise theories has been universally recognized in other states.See. e.g., Mozingo 752 F.2d at 175. The court therefore declines to recognize these theories under Utah law.
2. Metal Ware and Newco's Liability for Failure to Warn
Farmers contends that a genuine issue of material fact exists as to whether Metal Ware and Newco had a duty to warn of the alleged defects in the Tabors' dehydrator. The Tenth Circuit has stated that a successor company may have a duty to warn customers of a product's defects if the company establishes a special or continuing relationship with the customers of the predecessor company. See Florom, 867 F.2d at 577 (applying Colorado law). "The court must look at factors such as the succession to service contracts, coverage of the particular machine by a contract, service of that machine by the successor, and the successor's knowledge of the defect and of the machine owner's location." Id. The Supreme Court of New Mexico has stated that "[t]he key inquiry is whether there are sufficient facts to warrant an inference that the successor corporation had actual or constructive notice of the alleged defect."Garcia v. Coe Mfg. Co., 933 P.2d 243, 250 (N.M. 1997).
The Utah Supreme Court has recognized a manufacturer's "duty to warn against a product's latent hazards that are known to the manufacturer." See Slisze v. Stanlev-Bostitch, 979 P.2d 317, 321 (Utah 1999). No Utah court, however, appears to have acknowledged such a duty in a successor company. But see Florom, 867 F.2d at 577 (recognizing a successor company's duty to warn in some situations despite an apparent lack of on-point Colorado law).
Farmers contends that "based on the deposition testimony of Erickson and Dornbush, there is ample evidence to support the inference that the defendants had either actual or constructive knowledge of the heating coil defect which was the issue of the recall notice." (Farmers's Opp'n Mem. at 13.) Metal Ware and Newco have not addressed the failure to warn argument. Because genuine issues of material fact exist under the failure to warn theory, Metal Ware and Newco's motion for summary judgment is denied as regards this theory.
C. The General Effect of the No Assumption of Liabilities Clause
Metal Ware and Newco also argue that the terms of the Asset Purchase Agreement bar any finding of products liability on their part. The No Assumption of Liabilities Clause provides in part as follows:
Purchaser shall not assume or become liable for any contracts, obligations or liabilities of Seller (including, but not limited to, . . . products liability . . .) and Seller shall indemnify and hold Purchaser harmless from any liability arising out of any such contracts obligations, or liabilities.
(Agreement, attached as Ex. A of Metal Ware's Supp. Mem., at 7.)
The case law on which Metal Ware and Newco rely stands for the proposition that when a contract contains unambiguous language, the contract's plain meaning governs. See Central Florida Invs., Inc. v. Parkwest Assocs., 40 P.3d 599, 605 (Utah 2002); Manning v. Wiscombe, 498F.2d 1311, 1313 (10th Cir. 1974). However, whether an umambiguous no liability provision in an asset purchase agreement in fact precludes a third party from recovering from a contracting party is not so clear, In short, Metal Ware and Newco have not demonstrated that the No Assumption of Liabilities Clause, as opposed to the general rule of non-liability for successor companies, should apply in the present case. Consequently, to the extent Metal Ware and Newco's motion for summary judgment is based on the mere language of the No Assumption of Liabilities Clause, the motion is denied.
III. Metal Ware and Newco's Motion to Strike Englewood's Response to the Motion for Summary Judgment
Metal Ware and Newco have moved to strike Englewood's response to the motion for summary judgment because Englewood has not filed a cross-claim or any other claim for relief against Metal Ware and Newco. They cite toPacker v. National Service Industries, Inc., where the Utah Court of Appeals "[held] that in a civil action involving multiple defendants, when no cross-claim is brought between the defendants, and when one of the defendants files a motion for summary judgment, a co-defendant does not have a right to respond to the motion." Packer v. Nat'l Serv. Indus., Inc., 909 P.2d 1277, 1278 (Utah Ct.App. 1996); see also Nat'l Serv. Indus., Inc. v. B.W. Norton Mfg. Co., 937 P.2d 551, 556 n. 2 (Utah Ct.App. 1997) (stating that "where one co-defendant moves for summary judgment against the plaintiff on the basis that it bears no liability — any other defendant must file an apportionment cross-claim in order to have standing to oppose the other co-defendant's motion"). Given the undisputed Utah case law discussed above and Englewood's failure to file a cross-claim, the court grants Metal Ware and Newco's motion to strike.
ORDER
For the foregoing reasons, the court ORDERS:1. Metal Ware and Newco's motion for summary judgment is GRANTED as against the Tabors, Farmers, and Shopko as to any claim of liability under a distribution theory.
2. Metal Ware and Newco's motion for summary judgment is GRANTED as against the Tabors, Farmers, and Shopko as to any claimed exceptions to the general rule of nonliability for a successor company. However, the motion for summary judgment is DENIED as to any claim for liability under a duty to warn theory.
3. The court DENIES Metal Ware and Newco's motion for summary judgment to the extent it relies on the No Assumption of Liabilities Clause in the Asset Purchase Agreement.
4. The court GRANTS Metal Ware and Newco's motion to strike Englewood's response to the motion for summary judgment.
5. The court DENIES the Tabors, Farmers, and Shopko's Federal Rule of Civil Procedure 56(f) motion.
IT IS SO ORDERED.