United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's Rule 56(d)
Motion [Doc. No. 28]. Defendant has filed its response in
opposition [Doc. No. 29]. The matter is fully briefed and at
was insured under an automobile policy issued by Defendant.
He was involved in an accident wherein another individual,
Jesse Atkins, was severely injured while crossing the road.
At the time of the accident, Atkins' employer had
workers' compensation insurance that was issued by the
Kansas Building Industry Worker's Compensation Fund,
whereby New York Marine and General Insurance (NYM) acted as
insurer and held subrogation rights. Plaintiff alleges
Defendant knew or should have known of NYM's involvement
and its attendant rights; however, it settled with Atkins
while failing to resolve NYM's rights of subrogation,
thereby exposing Plaintiff to hundreds of thousands of
dollars of liability in excess of his policy
limits. Plaintiff filed the present suit against
Defendant, asserting claims for breach of contract and breach
of the duty of good faith and fair dealing.
January 24, 2018, Defendant filed its Motion for Summary
Judgment [Doc. No. 20]. It contends that (1) Plaintiff's
breach of contract claim is barred by the applicable statute
of limitations, (2) there is no genuine dispute of material
fact regarding Plaintiff's breach of contract and bad
faith claims, and (3) there is insufficient evidence from
which to submit the question of punitive damages to a jury.
regard, Rule 56(d), Federal Rules of Civil Procedure,
provides that if a non-movant shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition to a pending motion
for summary judgment, the Court may: (1) defer considering
the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
appropriate order. Fed.R.Civ.P. 56(d). Pursuant to the
rule, Plaintiff has filed the present motion seeking to
depose the four individuals who he believes were involved in
the handling of the claims against him. Plaintiff
contends that the conduct of these individuals “forms
the basis for Plaintiff's claims, ” and
“their depositions are necessary to develop the facts
which will support the opposition to Defendant's
purported ‘undisputed facts' and show additional
facts which preclude [s]ummary [j]udgment.” Pl. Resp.
at 3. Defendant objects to the motion. It contends that the
factual basis for its motion was fully developed in the
Garfield County litigation, and thus, there are no material
facts that are unavailable to Plaintiff.
general principle of Rule 56(d) is that summary judgment
should be refused when the nonmoving party has not had the
opportunity to discover information that is essential to his
opposition. Price ex rel. Price v. Western Resources,
Inc., 232 F.3d 779, 783 (10th Cir. 2000) (citation
omitted). To make the showing necessary to obtain relief
pursuant to Rule 56(d), a party must do more than assert
“that the evidence supporting [the party's]
allegation is in the hands of the [opposing party].”
Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir.
1985) (quoting Patty Precision v. Brown & Sharpe Mfg.
Co., 742 F.2d 1260, 1264 (10th Cir. 1984) (paraphrasing
in original)). Instead, the party invoking Rule 56(d)
“must show how additional time will enable him to rebut
[the] movant's allegations of no genuine issue of
fact.” See id.; Jensen v. Redevelopment
Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir.
1993). The court in Price summarized the requisite
showing as follows:
A prerequisite to granting relief [pursuant to Rule 56(d)]
... is an affidavit furnished by the nonmovant. Although the
affidavit need not contain evidentiary facts, it must explain
why facts precluding summary judgment cannot be presented.
This includes identifying the probable facts not available
and what steps have been taken to obtain these facts. In this
circuit, the nonmovant also must explain how additional time
will enable him to rebut movant's allegations of no
genuine issue of fact.
Price, 232 F.3d at 783 (quoting Committee for
the First Amendment v. Campbell, 962 F.2d 1517, 1522
(10th Cir. 1992)); see also Burke v. Utah Transit Auth.
and Local 382, 462 F.3d 1253, 1264 (10th Cir.
2006) (“Additionally, [an affidavit] must ‘state
with specificity how the additional material will rebut the
summary judgment motion.'”) (citation omitted).
Rule 56(d) may not be invoked based solely upon the assertion
that discovery is incomplete or that the specific facts
necessary to oppose summary judgment are unavailable.
Jensen, 998 F.2d at 1553. It is not a license for a
fishing expedition. Lewis v. City of Ft. Collins,
903 F.2d 752, 759 (10th Cir. 1990). Thus, although a
party's motion under Rule 56(d) should be liberally
treated, the decision to grant additional discovery is within
the Court's discretion. Leyba v. City of
Santa Fe, 198 F.Supp.3d 1254, 1257 (D.N.M. 2016).
light of the foregoing standard, the Court finds
Plaintiff's motion should be granted in part. Pivotal to
a Court's analysis under Rule 56(d) is whether the
subject information is essential to the
non-movant's defense to summary judgment. Here, despite
pressing the urgency of the depositions at issue, Plaintiff
was nonetheless able to formulate and submit a fully briefed
(albeit “preliminary”) response to
Defendant's motion. This undercuts his argument that such
evidence was vital to his response. As noted, the Tenth
Circuit specifically states district courts should disallow
relief under Rule 56(d) where the argument is simply that
discovery is incomplete. Jensen, 998 F.2d at 1553.
As evidenced in Plaintiff's response, the failure to
depose the subject witnesses did not fully preclude him from
providing a comprehensive response to Defendant's motion.
the Court does find that the testimony of Michael Feldman is
relevant to Defendant's motion and Plaintiff should be
allowed to fully develop his testimony in this regard.
Plaintiff has made a specific showing that Feldman's
testimony is necessary to refute Defendant's assertion
that it had no knowledge of a workers' compensation claim
prior to settling with Atkins. Compare Def.
Statement of Undisputed Facts, ¶¶ 24-25
with Pl. Prelim. Resp. Br. at 12. Thus, the Court
finds Plaintiff should be permitted to depose Feldman on the
circumstances surrounding this issue. Plaintiff's request
to depose the remaining individuals, ...