Jefferson v. Gilbert

Opinion

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5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT TACOMA 7 MICHEAL JEFFERSON, 8 CASE NO. 3:19-CV-5121-RJB-DWC Plaintiff, 9 ORDER DENYING RULE 56(D) v. MOTION AND GRANTING 10 EXTENSION OF TIME MARGARET GILBERT, et al., 11 Defendant. 12

The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate 13 Judge David W. Christel. Presently before the Court is Plaintiff Micheal Jefferson’s Motions for 14 relief under Federal Rule of Civil Procedure 56(d) and Motion for Extension of Time. Dkt. 78, 15 82, 83. After consideration of the relevant record, the Court denies Plaintiff’s Motions (Dkt. 78, 16 83) for an extension to complete discovery under Rule 56(d) and grants Plaintiff’s Motion for 17 Extension of Time (Dkt. 82). 18 I. Background 19 On October 7, 2019, the Court entered a Pretrial Scheduling Order, which required all 20 discovery to be completed by February 7, 2020. Dkt. 29. Plaintiff requested an extension of time 21 to complete discovery on January 2, 2020. Dkt. 32. Defendants did not oppose the extension of 22 time and, on January 24, 2020, the Court entered an Amended Pretrial Scheduling Order 23 extending the discovery deadline to June 7, 2020. Dkt. 35. Plaintiff requested additional 24 1 extensions of time complete discovery, which were denied. See Dkt. 58, 63. On July 7, 2020, a 2 month after discovery closed, Defendants filed a timely Motion for Summary Judgment. Dkt. 66. 3 Plaintiff seeks an extension to time to complete additional discovery to respond to 4 Defendants’ Motion for Summary Judgment and an extension of time to respond to Defendants’

5 Motion for Summary Judgment because of restrictions due to the Covid-19 pandemic. Dkt. 78, 6 82, 83. Defendants filed a response to Plaintiff’s request for an extension under Rule 56(d), but 7 did not file a response to Plaintiff’s general request for an extension of time due to Covid-19. See 8 Dkt. 79. 9 II. Discussion 10 A. Rule 56(d) Extension (Dkt. 78, 83) 11 Plaintiff first requests an extension of time to complete additional discovery and obtain 12 additional documents under Rule 56(d). Dkt. 78, 83. Defendants assert Plaintiff has not shown 13 additional evidence exists and that he has diligently pursued the evidence in discovery. Dkt. 79. 14 The Court agrees with Defendants.

15 Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, “the court shall grant 16 summary judgment if the movant shows that there is no genuine dispute as to any material fact 17 and the movant is entitled to judgment as a matter of law.” However, Rule 56(d) “provides a 18 device for litigants to avoid summary judgment when they have not had sufficient time to 19 develop affirmative evidence.” United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th 20 Cir. 2002). Under Rule 56(d), if the nonmoving party “shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) 21 defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to 22 take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). In order to 23 prevail under Rule 56(d), the party opposing summary judgment must make “‘(a) a timely 24 1 application which (b) specifically identifies (c) relevant information, (d) where there is some 2 basis for believing that the information sought actually exists.’” Emp'rs Teamsters Local Nos. 3 175 & 505 Pension Trust Fund v. Clorox, 353 F.3d 1125, 1129 (9th Cir. 2004) (quoting VISA 4 Int'l Serv. Ass'n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986)). The Ninth

5 Circuit has held a Rule 56(d) continuance “should be granted almost as a matter of course unless 6 the non-moving party has not diligently pursued discovery of the evidence.” Burlington N. Santa 7 Fe R.R. Co. v. The Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773– 8 74 (9th Cir. 2003) (internal quotation marks and citations omitted). 9 Here, discovery began on October 7, 2019. Dkt. 29. The Court extended the discovery 10 deadline to June 7, 2020. Dkt. 35. Thus, Plaintiff had eight months to conduct discovery. 11 Plaintiff does not explain why he did not attempt to depose Defendants and witnesses during the 12 discovery period, serve relevant discovery requests, or attempt to confer with Defendants’ 13 counsel regarding discovery disputes. See Dkt. 78, 83. Further, it is not clear the alleged 14 discovery Plaintiff seeks to obtain exists or is relevant to the Court’s decision on Defendants’

15 Motion for Summary Judgment. Rather, Plaintiff appears to seek an extension of time to obtain 16 additional discovery now that he has been made aware of Defendants’ arguments in the Motion 17 for Summary Judgment. For these reasons, the Court declines to re-open the discovery period 18 and allow Plaintiff an additional period of time to conduct discovery in response to Defendants’ 19 Motion for Summary Judgment. Accordingly, Plaintiff’s requests (Dkt. 78, 83) for an extension 20 of time to complete discovery under Rule 56(d) are denied. 21 B. Motion for Extension of Time (Dkt. 82) 22 Plaintiff also filed a Motion for Extension of Time requesting an extension of time to 23 litigate this case because the Covid-19 pandemic has limited his ability to access the law library.

24 Dkt. 82. Defendants did not respond to Plaintiff’s Motion for Extension of Time. 1 In response to Defendants’ Motion for Summary Judgment, Plaintiff filed the request for 2 an extension under Rule 56(d). See Dkt. 78. It does not appear Plaintiff fully responded to 3 Defendants’ Motion for Summary Judgment. In light of the Covid-19 pandemic and the Court’s 4 decision denying Plaintiff’s request for an extension under Rule 56(d), the Court finds an

5 extension of time to respond to Defendants’ Motion for Summary Judgment is warranted. 6 Therefore, Plaintiff’s Motion for Extension of Time (Dkt. 82) is granted as follows: Plaintiff 7 shall have until September 21, 2020 to file a response to Defendants’ Motion for Summary 8 Judgment. 9 The Court, however, continues to find Plaintiff has a history of attempting to extend this 10 case, possibly attempting to delay resolution. As such, Plaintiff should refrain from filing any 11 additional requests for extension of time. 12 III. Conclusion 13 For the above stated reasons, Plaintiff’s requests (Dkt. 78, 83) for an extension of time to 14 complete additional discovery under Rule 56(d) is denied. Plaintiff’s Motion for Extension of

15 Time (Dkt. 82) is granted as follows: Plaintiff shall have until September 21, 2020 to file any 16 supplemental response to Defendants’ Motion for Summary Judgment. Defendants may file a 17 supplemental reply on or before September 25, 2020. 18 The Clerk is directed to re-note Defendants’ Motion for Summary Judgment (Dkt. 66) for 19 September 25, 2020. 20 Dated this 21st day of August, 2020. 21 A 22 David W. Christel United States Magistrate Judge 23 24