Opinion
ORDER
LAWRENCE K. KARLTON, District Judge.
Plaintiff Robert Dodson sues defendants The Munirs Company d/b/a IHOP # 6941 ("Munirs") and Anthony G. Poligono, Trustee of the Anthony G. Poligono Revocable Trust of 2004, alleging violations of the Americans with Disabilities Act and related California statutes.
Presently before the court is plaintiff's motion for summary judgment. (ECF No. 29.) In opposition, defendants request that the court defer or deny the motion pursuant to Federal Rule of Civil Procedure 56(d). (ECF No. 30.)
Plaintiff filed its motion for summary judgment on July 15, 2013; the motion was initially set for hearing on August 12, 2013, but was continued for administrative reasons by the court to September 9, 2013. (ECF No. 32.)
This matter may be resolved without oral argument. Having considered the parties' submissions, the court will grant defendants' Rule 56(d) motion and deny plaintiff's summary judgment motion, for the reasons set forth below.
I. STANDARD RE: RULE 56(d) MOTION
Rule 56(d) provides:
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.
As a result of revisions to Rule 56 under the 2010 Amendments to the Federal Rules of Civil Procedure, an equivalent provision to former subdivision (f) of Rule 56 is now set forth as subdivision (d). While the wording of the subdivision was revised significantly by the Amendments, none of these changes appear to invalidate existing jurisprudence regarding the subdivision. See 10B Charles Alan Wright & Arthur Miller, Federal Practice & Procedure: Civil § 2740 (3d ed. 2013) ("When Rule 56 was rewritten in 2010, the provisions in Rule 56(f) were moved to a new subdivision (d), without any substantial changes"). Accordingly, the court herein treats existing caselaw regarding former Rule 56(f) as equally-applicable to current subdivision 56(d).
While Rule 56(d) "facially gives judges the discretion to disallow discovery when the non-moving party cannot yet submit evidence supporting its opposition, the Supreme Court has restated the rule as requiring, rather than merely permitting, discovery where the nonmoving party has not had the opportunity to discover information that is essential to its opposition.'" Metabolife Intern., Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (citing and quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)); accord State of California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) ("[A] district court should continue a summary judgment motion upon a good faith showing by affidavit that the continuance is needed to obtain facts essential to preclude summary judgment"). A motion under Rule 56(d) must be brought before the summary judgment hearing, Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520 (9th Cir. 1990), and the movants must show "(1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are essential' to resist the summary judgment motion." Campbell, 138 F.3d at 779.
II. ANALYSIS
Defendants have satisfied Rule 56(d)'s requirements.
Discovery ordinarily cannot commence until the parties hold a Rule 26(f)-mandated conference to develop a discovery plan. Fed.R.Civ.P. 26(d)(1). Although the parties have not informed the court if and when they held this conference, it is reasonable to infer from the record that defendants would have had little or no time to conduct discovery before the plaintiff's summary judgment motion was filed. On June 18, 2013, the court granted plaintiff's motion to strike defendant Munirs' answer, and directed it to file an amended answer. Defendants jointly filed an amended answer on July 2, 2013. (ECF No. 27.) It is unlikely that productive discovery could have commenced before that date. Moreover, as Rule 26(f)(2) requires the parties to consider "the nature and basis of the[] claims and defenses..." when they confer, it is unlikely that the parties could have conferred about the defenses raised in the amended answer before it was filed. In other words, both as a practical matter and under the procedures dictated by Rule 26, defendants would have had little or no opportunity for meaningful discovery prior to July 15, 2013, when plaintiff filed its motion for summary judgment. Admittedly, Rule 56(b) allows a party to file for summary judgment at the commencement of an action. Nevertheless, the Ninth Circuit teaches that "[w]here... a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56[(d)] motion fairly freely." Burlington N. Santa Fe R.E. v. Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). In support of this proposition, the Burlington Northern panel approvingly cited a Fifth Circuit opinion to the effect that "continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course unless the non-moving party has not diligently pursued discovery of the evidence." Wichita Falls Office Assoc. v. Banc One Corp., 978 F.2d 915, 919 n.4 (5th Cir. 1992) (internal quotation and citation omitted). There is no evidence before the court to suggest that defendants did not pursue discovery diligently. It appears that they had very little time to act at all.
In support of their Rule 56(d) motion, defendants submit the declaration of counsel Duyen T. Nguyen, which provides in pertinent part:
I believe limited discovery, in the form of taking Plaintiff's deposition and propounding focused interrogatories relating to the representations contained in Plaintiff's declaration submitted in support of the summary judgment motion will elicit further factual detail, which Defendants are confident will reveal numerous triable issues of material fact defeating Plaintiff's summary judgment motion. * * *
I believe this discovery will reveal questions of fact concerning: (a) Plaintiff's disability; (b) Plaintiff's visit to the Munirs Company dba IHOP #694 facility; [ n.b., defendants did not include a part (c);] (d) how and to what extent the purported alleged barriers caused Plaintiff "discomfort, frustration, and embarrassment"; (e) how and to what extent the purported barriers caused Plaintiff "difficult[ies]." (Decl. Nguyen ¶¶ 11, 12, ECF No. 30-2.)
This entire action is premised on plaintiff's assertions that he has a disability, and that defendants' restaurant presented him with unlawful barriers to access. Defendants have as yet had no opportunity to test or explore the scope of these assertions. Accordingly, counsel's averments (reproduced above) provide a sufficient basis for granting the Rule 56(d) motion under the three-part test set forth in Campbell, 138 F.3d at 779. While not especially detailed, these averments are sufficient, as, "where... no discovery whatsoever has taken place, the party making a Rule 56[(d)] motion cannot be expected to frame its motion with great specificity as to the kind of discovery likely to turn up useful information, as the ground for such specificity has not yet been laid." Burlington Northern, 323 F.3d at 774.
Plaintiff counters that defendants' request for a continuance should be denied, for two reasons. First, "Defendants have access to their own facility, and can take measurements and assess the barriers to access at any time." (Reply 7.) As discussed above, defendants aver that they have had no opportunity to conduct discovery into plaintiff's disability and his particular experiences at their restaurant, and plaintiff's argument is unresponsive to this averment. Plaintiff's argument also carries little weight because defendants were provided scant notice of the date on which plaintiff allegedly encountered the barriers to access. As the court noted in its order granting plaintiff's motion to strike, plaintiff "failed to allege in his complaint the date(s) on which the alleged violations occurred[.]" (Order, Jun. 18, 2013, ECF No. 23.) Both of plaintiff's status reports, filed in April and June, also fail to reveal this information. (ECF Nos. 12, 22.) Defendants' Status Report, filed on June 20, 2013, proposes July 16, 2013 as the deadline for the parties to exchange initial Rule 26 disclosures; from this, the court infers that the date in question was not earlier forthcoming. (ECF No. 25.) In other words, it appears that defendants were not apprised of the date on which plaintiff visited the subject facility (February 12, 2013) until the instant motion was filed (July 15, 2013). Defendants' opposition was due two weeks later. In the court's view, at such an early stage of the litigation, this was insufficient time for defendants to obtain assessments of the state of their facility, on a specific date in the past, adequate to the task of addressing a summary judgment motion.
One point merits clarification. In its order granting plaintiff's motion to strike, this court directed defendant Munirs to set forth its affirmative defenses under the heightened pleading standards announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Dodson v. Munirs Co., No. CIV. S-13-0399, 2013 WL 3146818, 2013 U.S. Dist. LEXIS 85768 (E.D. Cal Jun. 18, 2013). In its order, the court justified requiring defendants to answer with specificity within the 21 days required by Rule 12(a)(1) because "the relevant facts supporting affirmative defenses are within the defendant's possession [and] if discovery reveals evidence supporting additional affirmative defenses, defendants may freely seek leave from the court to amend their answers." Id., 2013 WL 3146818 at *6, 2013 U.S. Dist. LEXIS 85768 at *19 (emphasis in original). While it may be true, as plaintiff contends, that "Defendants have access to their own facility, and can take measurements and assess the barriers to access at any time, " the pleading stage and the summary judgment stage are sufficiently different that, in the court's view, defendants' control of their facility is an insufficient basis on which to grant summary judgment so early in the litigation. Parties must have an adequate opportunity to develop a competent evidentiary basis for their oppositions to summary judgment, for they lack the ability to liberally amend their oppositions as they do their answers. The inability to present an adequate opposition to a summary judgment motion has a finality, and a fatality, that the inability to adequately plead an affirmative defense does not. Therefore, the parties must have an opportunity to develop a sufficient record to present at summary judgment.
Plaintiff also argues for denying the Rule 56(d) motion because "[he] has propounded written discovery (to which defendants have responded)" (Reply 7). To which the proper response is: so what? It is defendants who contend that they were unable to conduct adequate discovery, including deposing plaintiff, before the instant motion was filed. Standing alone, the assertion that plaintiff successfully propounded discovery has no bearing on whether defendants "had any realistic opportunity to pursue discovery relating to [their] theory of the case...." Burlington Northern, 323 F.3d at 773. Plaintiff's argument would carry more weight if he had propounded discovery, and received responses, well before the instant motion was filed; in that case, he might have a credible argument that defendants were dilatory in pursuing discovery. But plaintiff has not specified when the discovery in question was conducted. In sum, the fact that plaintiff obtained discovery at some unspecified time before filing his Reply is irrelevant to the court's consideration of defendants' Rule 56(d) motion.
The court is mindful that, assuming the subject restaurant presents unlawful barriers to disability access, not entering judgment in favor of plaintiff at this time may delay necessary remedial measures, and thereby cause future disabled patrons to suffer. Nevertheless, the litigation is still at an early stage. Discovery is to be completed by September 5, 2014; law and motion must be heard by November 5, 2014; trial is set to commence on May 5, 2015. (ECF No. 34.) A "major objective of subdivision [(d)] has been to ensure that a diligent party is given a reasonable opportunity to prepare the case." 10B Wright & Miller, Federal Practice & Procedure: Civil § 2741 (3d ed. 2013). Defendant will be given that opportunity.
III. CONCLUSION
In light of the foregoing, plaintiff's motion for summary judgment is DENIED WITHOUT PREJUDICE. Plaintiff may move for summary judgment again after defendants have had an adequate opportunity to conduct discovery herein. The hearing on the motion, currently set for September 9, 2013, is hereby VACATED.
IT IS SO ORDERED.