United States District Court, E.D. Washington
ORDER GRANTING PLAINTIFF'S REQUEST FOR ADDITIONAL
DISCOVERY AND DENYING DEFENDANT'S SUMMARY JUDGMENT MOTION
WITH LEAVE TO RENEW
SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE
the Court, without oral argument, is Plaintiff Anthony
Vela's Federal Rule of Civil Procedure 56(d) request for
additional discovery, ECF No. 9 at 1-8, pertaining to
Defendant Wal-Mart Stores Inc.'s summary judgment motion,
ECF No. 6. Defendant opposes Plaintiff's request. ECF No.
15. Having reviewed the briefing and the file in this matter,
the Court is fully informed and grants the request.
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, 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.
prevail on a request for additional discovery under Rule
56(d), a party must show that ‘(1) it has set forth in
affidavit form the specific facts it hopes to elicit from
further discovery; (2) the facts sought exist; and (3) the
sought-after facts are essential to oppose summary
judgment.'” Midbrook Flowerbulbs Holland B.V.
v. Holland Am. Bulb Farms, Inc., 874 F.3d 604, 619-20
(9th Cir. 2017) (quoting Family Home & Fin. Ctr.,
Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827
(9th Cir. 2008)). A party “is not entitled to
additional discovery under [Rule] 56([d]) ‘if it fails
diligently to pursue discovery before summary
judgment.'” Family Home & Fin. Ctr.,
525 F.3d at 827-28 (quoting Mackey v. Pioneer Nat'l
Bank, 867 F.2d 520, 524 (9th Cir. 1989)); see Big
Lagoon Rancheria v. California, 789 F.3d 947, 955 (9th
Cir. 2015) (en banc).
in certain categories of cases not applicable here,
“the Court will issue a scheduling order to govern all
procedures conducive to the just, speedy, and inexpensive
resolution of the action” LCivR 16(b)(1). A delay in
issuing a scheduling order also delays “starting the
discovery and pretrial processes.” LCivR 16(b)(2).
Thus, as the Local Civil Rules provide, “[t]he Court
will issue a scheduling order in accordance with Federal Rule
of Civil Procedure 16(b)(2).” Id. Under that
provision, “[t]he judge must issue the scheduling order
as soon as practicable, but unless the judge finds good cause
for delay, the judge must issue it within the earlier of 90
days after any defendant has been served with the complaint
or 60 days after any defendant has appeared.”
Fed.R.Civ.P. 16(b)(2). However, one of two triggering events
must occur before the Court may issue a scheduling order:
either (1) the parties must provide the Court with a report
following their Federal Rule of Civil Procedure 26(f)
conference, or (2) the Court must consult with the parties at
a scheduling conference. Fed.R.Civ.P. 16(b)(1).
date, neither triggering event has occurred in this case. The
Local Civil Rules anticipate that, ordinarily, the Court will
set a scheduling conference. See LCivR 16(a)(5)(B).
However, the Court has neglected to do so here. And while the
parties here have not yet completed their Rule 26(f)
conference or submitted a report, their attorneys are
“jointly responsible” for this omission.
Fed.R.Civ.P. 26(f)(2). Plaintiff, Defendant, and the Court
all share some blame for the delay in beginning discovery.
has not failed to diligently pursue discovery. Rather,
Plaintiff has shown by declaration that, despite reasonable
diligence, he needs additional discovery to oppose summary
judgment. See Fed. R. Civ. P. 56(d). Plaintiff has
shown that Defendant had a policy or practice of allowing its
employees to apply accrued sick, vacation, or personal leave
time to cover tardiness. See ECF No. 11. Plaintiff
hopes to elicit facts about how Defendant implemented or
tolerated its policy or practice, and how Plaintiff's
behavior conformed to prevailing norms among Defendant's
employees. See Id. Discovery on Defendant's
policy or practice could raise a genuine dispute of material
fact regarding whether Plaintiff improperly falsified his
time records. See Id. Thus, Plaintiff cannot
currently present facts essential to justify his opposition
to summary judgment. In these circumstances, the Court may
deny a summary judgment motion with leave to renew it after
additional discovery. See Fed. R. Civ. P.
56(d)(1)-(2). The Court exercises that option here.
IT IS HEREBY ORDERED:
1. Plaintiffs Rule 56(d) request for
additional discovery, ECF No. 9 at 1-8, is
2. Defendant's summary judgment motion,
ECF No. 6, is DENIED WITH LEAVE TO
RENEW, as ...