Opinion
CASE NO. 3:19-cv-05619-BHS-JRC
07-06-2020
ASHTON W. THOMAS, Plaintiff, v. WASHINGTON CORRECTION CENTER, et al., Defendants.
ORDER RENOTING SUMMARY JUDGMENT MOTION
This matter is before the Court on plaintiff's summary judgment motion (Dkt. 22) and plaintiffs' response requesting a continuance under Federal Rule of Civil Procedure 56(d). Dkt. 23. For the reasons discussed below, the Court grants the request for a continuance and re-notes the summary judgment motion (Dkt. 22) to July 17, 2020.
DISCUSSION
Plaintiff filed a summary judgment motion on May 21, 2020. See Dkt. 22. The discovery deadline in this matter is August 12, 2020, and the dispositive motions deadline is September 11, 2020. Dkt. 20. Plaintiff's summary judgment motion was noted for June 12, 2020; however, defendants timely filed a request for a continuance of the summary judgment noting date. See Dkt. 23. Plaintiff has not responded to their request, and the matter is now ripe for the Court's review.
Defendants request a continuance of the summary judgment motion under Rule 56(d) on the basis that (1) plaintiff filed his summary judgment motion well before the discovery cutoff, (2) defendants intend to file a cross-motion for summary judgment in response but were unable to timely compile the necessary evidence, and (3) compiling the necessary evidence is delayed by factors including reduced Department of Corrections staff hours during the COVID-19 outbreak. See Dkt. 23, at 2-3. Defendants explain that they require affidavits from various Department of Corrections employees and officials to respond to plaintiff's claims (which pertain to alleged deliberate indifference). See Dkt. 24.
"If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may . . . defer considering the motion or deny it; . . . allow time to obtain affidavits or declarations or to take discovery; or . . . issue any other appropriate order." Fed. R. Civ. P. 56(d). A nonmovant generally must set forth the facts it hopes to elicit from further discovery, that these facts exist, and that the sought-after facts are essential to oppose summary judgment. See Family Home & Finance Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008) (discussing former Rule 56(f)). Rule 56(d) relief should generously be granted where a summary judgment motion is filed early in the litigation, "before a party has had any realistic opportunity to pursue discovery relating to its theory of the case." Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773-74 (9th Cir. 2003). Unless the non-moving party has failed to diligently pursue discovery, such relief should be granted "'almost as a matter of course.'" Id. (quoting Wichita Falls Office Ass'n v. Banc One Corp., 978 F.2d 915, 919 n.4 (5th Cir. 1992)).
The Court notes that plaintiff has filed no opposition to the Rule 56(d) request for a continuance—and a lack of opposition may be deemed as an admission that the motion has merit. See Local Civil Rule 7(b)(2). Moreover, defendants promptly moved for a continuance after plaintiff filed the summary judgment motion, and they have set forth the reasons they were unable to timely obtain the evidence essential to their opposition to plaintiff's motion and have explained why they require the evidence to oppose the summary judgment motion.
Therefore, the undersigned finds good cause to re-note the summary judgment motion to July 17, 2020. Deadlines for the opposition and reply briefs are those set forth by Local Civil Rule 7. See LCR 7(d)(3) ("Any opposition papers shall be filed and served not later than the Monday before the noting date. . . . Any reply papers shall be filed and served no later than the noting date.").
Dated this 6th day of July, 2020.
/s/_________
J. Richard Creatura
United States Magistrate Judge