United States District Court, D. Colorado
WYATT T. HANDY, JR., ASHLEE M. HANDY, Plaintiffs,
v.
TERA L. FISHER, AND BRANDON H. JOHNSON Defendants.
ORDER DENYING MOTION FOR RULE 56(D) DISCOVERY
[#90]
S.
Kato Crews United States Magistrate Judge
This
order addresses Plaintiffs' Motion for Discovery under
Federal Rule of Civil Procedure 56(d) [#90]
(“Motion”).[1] The Court has reviewed the Motion,
Plaintiff Wyatt T. Handy Jr.'s Declaration [#91],
Defendants' Response [#104], Plaintiffs' Reply
[#105], and the applicable laws. No hearing is necessary to
resolve the Motion. For the following reasons, the Court
DENIES the Motion.
A.
DISCUSSION
Defendants
filed their Motion for Summary Judgment [#80] on October 28,
2019. Plaintiffs' filed their Response on December 20,
2019. [See #103][2] That same day, Plaintiffs filed the
Motion requesting the Court deny or defer consideration of
the Motion for Summary Judgment. [#90 at p.1.] As grounds for
this request, they claim that they “have not been
permitted to conduct discovery” and are “unable
to present facts essential to its opposition to the [Summary
Judgment Motion] because the facts are in the exclusive
custody and control of the Defendants.” [#90 at p.1.]
A
party's request under Rule 56(d) of the Federal Rules of
Civil Procedure is left to the discretion of the trial court.
See Patty Precision v. Brown & Sharpe Mfg. Co.,
742 F.2d 1260, 1264 (10th Cir. 1984). “The trial court
may deny the affiant's request for additional time, deny
the motion for summary judgment, order a continuance for
additional discovery or make such other order as is
just.” Jensen v. Redevelopment Agency of Sandy
City, 998 F.2d 1550, 1554 (10th Cir. 1993) (internal
quotation and citation omitted).
The
party seeking relief under Rule 56(d) must show with
specificity how the additional time will enable them to meet
their burden in opposing summary judgment. See Pasternak
v. Lear Petroleum Exploration, Inc. 790 F.2d 828, 833
(10th Cir. 1986) (quoting Weir v. Anaconda Co., 773
F.2d 1073, 1083 (10th Cir. 1985)). “[I]f the party
filing the Rule 56[(d)] affidavit has been dilatory, or the
information sought is either irrelevant to the summary
judgment motion or merely cumulative, no extension will be
granted.” Jensen, 998 F.2d at 1554 (citing
Patty Precision, 742 F.2d at 1264-65); see also
Campbell, 962 F.2d at 1522 (“Unless dilatory or
lacking in merit, the motion should be liberally
treated.”).
This
Court has already found that the IA Reports and CAD Notes
Plaintiffs' seek are “not relevant or proportional
to the needs of the case.” [#85 at p.13 (“Records
of all of Fisher's contacts with other people at the
subject location is not relevant or proportional to the
claims or defenses in this case regarding the lawfulness of
Defendants' detention and investigation of these
Plaintiffs”.] The Declaration does nothing beyond mere
conclusory statements to negate the Court's ruling on the
question of the requested IA Reports and CAD Notes'
relevance. [See #91;] see also Jensen, 998
F.2d at p.1554 (holding that conclusory affidavits are
insufficient to support a motion under Rule 56(d)). No amount
of additional time to obtain the IA Reports and CAD Notes
will alter their relevancy to the remaining claims. On this
basis alone, the Motion should be denied.[3]Patty
Precision, 742 F.2d at 1264-65 (“[I]f . . . the
information sought is . . . irrelevant to the summary
judgment motion . . .no extension will be granted.”).
Plaintiffs'
only other justification for their Rule 56(d) relief is
factually inaccurate and without merit. First, Plaintiffs
assert that they “have not been permitted to conduct
discovery.” [#90 at p.1.] This is untrue. The Court
afforded Plaintiffs the presumptive limit of written
interrogatories and requests for production and admissions
under the Federal Rules of Civil Procedure. [See #35
at pp. 5-6.] Additionally, the Court granted them an over
7-month extension of the original Discovery Deadline.
[Compare Id. at p.7 and #70.] Plaintiffs served
“their full allotment of interrogatories and document
requests” in this matter. [#85 at p. 12.] When
Plaintiffs' objected to Defendants' responses to
their written discovery, the Court compelled disclosure of
additional relevant documents. [See #65.] The Court
even entertained, and ultimately denied, Plaintiffs'
second motion to compel discovery. [See #85.] For
Plaintiffs' to now assert that they “have not been
permitted to conduct discovery” is patently untrue.
[#90 at p.1.]
Plaintiffs'
further assert that without the IA Reports and CAD Notes,
discovery is incomplete, and they are “unable to fully
present facts essential to its opposition to the [Motion for
Summary Judgment], because those facts are in the exclusive
custody and control of the Defendants.” [#90 at p.1.]
These assertions lack merit. In the Tenth Circuit,
“Rule 56[(d)] may not be invoked by the mere assertion
that discovery is incomplete or that specific facts necessary
to oppose summary judgment are unavailable . . . .”
Pasternak, 790 F.2d at 833 (quoting Patty
Precision, 742 F.2d at 1264). “Moreover, merely
asserting that the evidence supporting a party's
allegation is in the hands of the opposing party is
insufficient to justify a denial of a motion for summary
judgment under” the Rule. Jensen, 998 F.2d at
p. 1554 (internal quotation, citation, and alliteration
omitted).
B.
CONCLUSION
For the
foregoing reasons, the Motion [#90] is DENIED. DATED: January
6, 2020
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Notes:
[1] The Court uses “[# ]” to
refer to docket entries in ...