Rutledge v. Elliot Health System, et al.

2018 DNH 062

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lonnie Rutledge

v. Civil No. 17-cv-110-JD Opinion No. 2018 DNH 062 Elliot Health System and Elliot Hospital

O R D E R

Lonnie Rutledge brings claims against her former employer,

Elliot Health System and Elliot Hospital, for age discrimination

and wrongful termination. The defendants moved for summary

judgment on the grounds that Rutledge cannot prove her claims.

Rutledge objected to summary judgment as to her claim of age

discrimination, Count I, but did not contest summary judgment as

to her wrongful termination claim, Count II.

As a fallback position, Rutledge also asked the court to

defer ruling on the motion, if her objection were deemed to be

insufficient to avoid summary judgment. She argues that the

parties’ discovery disputes have delayed production of some

material information and delayed the deposition of an important

nonparty witness. The defendants object to deferring the ruling

on summary judgment.

A. Relief under Rule 56(d)

Rule 56(d) provides a means for the nonmoving party to

avoid summary judgment when that party “cannot present facts essential to justify its opposition.” As such, Rule 56(d),

“protects a litigant who justifiably needs additional time to

respond in an effective manner to a summary judgment motion.”

In re PHC, Inc. S’holder Litig., 762 F.3d 138, 143 (1st Cir.

2014) (internal quotation marks omitted). A party requesting

relief under Rule 56(d) must show by affidavit or declaration

the reasons that she cannot present facts essential to summary

judgment. Fed. R. Civ. P. 56(d).

Rutledge argues both that the defendants are not entitled

to summary judgment, based on the existing facts, and that she

needs additional discovery to effectively oppose summary

judgment. Rutledge’s counsel provided his affidavit in which he

represents that the patient chart and information about the

Exceptional Beginnings Quality Review Committee investigation,

which were addressed in Rutledge’s motion to compel, are

necessary to oppose the motion. Counsel also states that the

patient chart is a necessary predicate for a deposition of a

nurse midwife who was involved in the patient’s care. Counsel

contends that the cited information is relevant to the issue of

whether the defendants’ reason for terminating Rutledge was

pretext for age discrimination.

In their reply, the defendants argue that Rule 56(d) does

not provide relief here because Rutledge caused the delay in

obtaining the patient chart and the deposition of the nurse

2 midwife, identified as Christine Isabella. The defendants note

that discovery closed on February 1 and that Rutledge has not

moved to extend the discovery deadline, which has now passed.

The defendants also argue that the deposition of Isabella would

not provide any material information.

Rutledge’s contradictory positions, objecting to summary

judgment based on disputed material facts and at the same time

seeking to defer a ruling, might be construed to undermine her

asserted grounds for deferral. See Morse v. TBC Retail Gr.,

Inc., 2013 WL 6730107, at *2 (D.N.H. Dec. 19, 2013) (citing C.B.

Trucking, Inc. v. Waste Mgmt., Inc., 137 F.3d 41, 44 (1st Cir.

1998), and noting that “absent unusual circumstances, a party

cannot object (on substantive grounds) to a pending motion for

summary judgment, while also seeking time for additional

discovery if that objection proves unavailing”). Nevertheless,

courts are expected to apply Rule 56(d) “generously, holding

parties to the rule’s spirit rather than its letter.” In re

PHC, Inc., 762 F.3d at 143 (internal quotation marks omitted).

Courts in this circuit are directed to “refrain from

entertaining summary judgment motions until after the parties

have had a sufficient opportunity to conduct necessary

discovery.” Velex v. Awning Windows, Inc., 375 F.3d 35, 39 (1st

Cir. 2009). That is because “when a party moves for summary

judgment, the opposing party must be afforded a fair chance to

3 obtain and synthesize available information before being

required to file an opposition.” Id.

The parties in this case have been embroiled in prolonged

discovery disputes that have generated three motions to compel.

On March 7, the same day that Rutledge filed her objection to

the motion for summary judgment, the court granted in part and

denied in part the third motion to compel. The parties were

ordered to file a motion for a protective order that would allow

the defendants to produce the requested patient chart. The

defendants were ordered to produce the Committee’s records of

its investigation into Rutledge’s actions and patient care on

May 22, 2014. Rutledge’s request to compel the defendants to

make and produce summaries of information from the Committee’s

records was denied.

Pursuant to the protective order and the court’s March 7

order, Rutledge has or will soon have the patient chart and the

Committee records, which counsel represents are necessary for

purposes of opposing summary judgment. For that reason,

Rutledge is granted relief under Rule 56(d).

B. Schedule

Under the current scheduling order, discovery closed on

February 1, 2018. The deadline for dispositive motions was

February 5, 2018. The trial is scheduled for the period

beginning on June 5, 2018.

4 Rutledge has not moved to modify the scheduling order to

extend any deadlines, although counsel acknowledges that the

delay he requests may cause the trial date to be continued. See

Fed. R. Civ. P. 16(b)(4). To allow time for Rutledge and the

defendants to address any issues raised by the additional

discovery that the court ordered the defendants to produce in

the order of March 7, the pending motion for summary judgment

will be granted in part, and denied in part without prejudice to

filing a second motion for summary judgment as provided below.

Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document no. 32) is granted as to Count II,

wrongful termination, and is otherwise denied without prejudice.

The defendants may file a second motion for summary

judgment on or before April 9, 2018.

If a second motion for summary judgment is filed, the trial

will be rescheduled for the trial period beginning on September

5, 2018, to allow sufficient time to address the motion and for

mediation if the motion is denied.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge March 20, 2018

5 cc: Debra Weiss Ford, Esq. Samuel V. Maxwell, Esq. Leslie C. Nixon, Esq. David P. Slawsky, Esq. Martha Van Oot, Esq.