Zawacky v. County of Clark

• Court: District Court, W.D. Washington
• Decided: January 4, 2023
• Docket: 3:22-cv-05101
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 SUSAN ZAWACKY, individually and as CASE NO. 3:22-cv-05101-DGE 11 Personal Representative of the Estate of JENOAH DONALD, deceased, et al., ORDER GRANTING PLAINTIFFS’ 12 MOTION FOR AN EXTENSION Plaintiffs, PURSUANT TO RULE 6 (DKT. 13 v. NO. 36) 14 COUNTY OF CLARK, political subdivision of the State of Washington, et 15 al, 16 Defendants. 17

18 This matter comes before the Court on Plaintiffs’ motion (Dkt. No. 36) for an extension 19 of time to respond to Defendants’ summary judgment motion (Dkt. No. 30). 20 Plaintiff moves for an extension pursuant to Federal Rules of Civil Procedure 6(b)(1) and 21 56(d). (Dkt. No. 36 at 5.) 22 “[A] district court should continue a summary judgment motion upon a good faith 23 showing by affidavit that the continuance is needed to obtain facts essential to preclude summary 24 judgment.” State of Cal., on Behalf of California Dep’t of Toxic Substances Control v. 1 Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The party seeking to continue must establish via 2 affidavit that ‘“(1) it has set forth in affidavit form the specific facts it hopes to elicit from further 3 discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose 4 summary judgment.”’ Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (quoting

5 Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 6 2008)). Specificity is important—the Court must be able to ascertain from the affidavit why the 7 requisite discovery would defeat summary judgment. See Tatum v. City & Cnty. of San 8 Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (“Tatum's request for a continuance did not 9 identify the specific facts that further discovery would have revealed or explain why those facts 10 would have precluded summary judgment.”). 11 Plaintiffs argue that a continuance pursuant to Federal Rule of Civil Procedure 56(d) is 12 warranted because they have not been able to depose Defendant Sean Boyle. (Dkt. No. 36-1 at 13 2–3.) They assert Defendant Boyle’s testimony is “essential,” but do not specify why. (Id. at 3.) 14 Similarly, Plaintiffs argue their use of force expert is expected to offer an opinion “that Deputies

15 Troupe and/or Boyle acted negligently, assaulted Mr. Donald, violated his well-established 16 Constitutional rights, and statements Deputy Boyle made in an investigative interview are 17 inconsistent with the other evidence and accepted practices.” (Id.) Plaintiffs note this opinion is 18 also essential. (Id.) 19 Plaintiffs fail to properly articulate through affidavit why the Court should continue 20 Defendants’ motion for summary judgment. Plaintiffs do not detail how they expect the 21 testimony of Defendant Boyle or the opinion of their use of force expert would preclude 22 summary judgment. Plaintiffs merely put forward conclusory statements that this information is 23 essential to their case. While Plaintiffs detail in argument reasons why the expected testimony is

24 1 essential to defeating Defendants’ summary judgment motion (see Dkt. No. 39 at 2–5), this not 2 sufficient for the Court to continue consideration of Defendants’ summary judgment motion. 3 Federal Rule of Civil Procedure 56(d) is clear that Plaintiffs must establish that a continuance is 4 warranted through “affidavit or declaration.” Fed. R. Civ. P. 56(d).

5 Despite Plaintiffs’ failure to comply with the formalities of Rule 56(d), Rule 6(b)(1)1 6 provides the Court with discretion to grant Plaintiffs’ request. See Smith v. Baugh, No. 16-CV- 7 906-LJV-LGF, 2022 WL 16540356, at *3 (W.D.N.Y. Oct. 28, 2022) (“[T]he fact that Rule 8 6(b)(1)(B) might impact a summary judgment deadline does not mean that it is trumped by Rule 9 56(d).”). 10 Rule 6(b)(1) provides “[w]hen an act may or must be done within a specified time, the 11 court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, 12 or if a request is made, before the original time or its extension expires.” Fed. R. Civ. P. 6(b)(1). 13 ‘“Good cause’ is a non-rigorous standard that has been construed broadly across procedural and 14 statutory contexts.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010).

15 Requests for extensions of time made prior to the deadline at issue should typically be granted 16 absent bad faith by the moving party. Id. The Court finds Plaintiffs have presented good cause 17 as to why the deadline for Plaintiffs’ response should be extended. Specifically, the Court finds 18 that failure of the parties to schedule and undertake a deposition for named Defendant Sean 19 Boyle constitutes good cause and there is no evidence that Plaintiffs have engaged in bad faith 20 behavior. 21 22

1 The Court also notes Rule 56(e) would permit the Court to provide Plaintiffs with an opportunity 23 to address the procedural deficiencies of their Rule 56(d) affidavit. The Court need not reach the issue as Rule 6(b)(1) provides an independent basis to provide relief from deadline. 24 1 Accordingly, and having considered Plaintiffs’ motion (Dkt. No. 36), the briefing of the 2 parties, and the remainder of the record, the Court finds and ORDERS Plaintiffs’ motion for an 3 extension of the deadline is GRANTED. 4 1. Plaintiffs shall respond to Defendants’ motion for summary judgment by March

5 13, 2023, the discovery deadline. Plaintiffs, with Defendants’ cooperation, shall 6 immediately schedule and complete the discovery they believe necessary to 7 respond to the motion for summary judgment and should not expect additional 8 extensions. 9 Dated this 4th day of January, 2023. 10 A 11 David G. Estudillo 12 United States District Judge

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