Opinion
CV-21-00455-TUC-JCH
11-08-2022
Bradley L Nelson, Plaintiff, v. County of Pima, et al., Defendant.
ORDER
JOHN C. HINDERAKER UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Bradley L. Nelson's "Motion to Amend Scheduling and Case Management Order and Plaintiff's Memorandum of Points and Authorities in Support of [his] Motion for Leave to Extend the Deadlines on the Scheduling Order (Second Request)" ("Motion"). (Doc. 25.) For the following reasons, the Court denies the Motion.
Although labeled a "second request," there is no indication that Plaintiff has previously requested an amendment or extension to the Case Management Order. Attached to his Motion, is a duplicate copy of the Motion and labeled as a "first request." (See Exh. H, Doc. 25-2 at 1.)
Pima County did not have an opportunity to respond.
I. Background
Plaintiff, proceeding pro se, brought this employment action against Defendant Pima County ("Pima County") alleging a failure to hire in 2019 and 2020. (See First Amended Complaint ("FAC"), Doc. 6.) Specifically, Plaintiff alleges violations of the Americans with Disabilities Act ("ADA"); age discrimination based on the Age Discrimination in Employment Act ("ADEA"); and retaliation under Title VII of the ADA. (Id. at 16-17.) Plaintiff requests damages and injunctive relief. (Id.) On March 29, 2022, Pima County filed their Answer. (Doc. 13.) On June 1, 2022, the Court issued a Case Management Order and ordered inter alia: (1) the completion of fact discovery, including discovery by subpoena, completed due on or before November 18, 2022; and (2) dispositive motions due on or before March 17, 2023. (Doc. 21 at 3-4.)
On October 6, 2022, Pima County filed its Motion for Summary Judgment and accompanying Statement of Facts. (Docs. 22, 23.) The Court issued an Order with Notice as required under Randv. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc), informing Plaintiff of his requirements under Fed.R.Civ.P. 56 and affirming the briefing schedule. (Doc. 24.) Plaintiff's response deadline is November 10, 2022. (Id.)
On November 7, 2022, Plaintiff filed the instant Motion under Federal Rules of Civil Procedure 9, 26, 33, 34, and 56(d)(1)-(2). (Doc. 25 at 2.) The Motion includes nearly 68 pages of exhibits. (Id.) The Court understands Plaintiff's position as follows: because of unrelated and "extraordinary" circumstances, Plaintiff was unable to complete fact discovery, therefore, he cannot present essential facts to adequately oppose Pima County's summary judgment motion. (Id. at 2-7.) Plaintiff asserts that Pima County prematurely filed its summary judgment motion before the end of discovery, and that it should be dismissed on this basis. (Id. at 5.) In the alternative, Plaintiff requests this Court defer ruling on Pima County's Motion for Summary Judgment and amend its Case Management Order to permit Plaintiff to complete discovery. (Id. at 7.)
The exhibits contain sensitive personal information and mortgage information. (See Docs. 25-1, 25-3, 25-4.) The Court finds good cause exists to seal those documents and will do so sua sponte. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006); see also Am. Automobile Ass'n of N. Cai., Nev., & Utah, 2019 WL 1206748, at *2 (N.D. Cal. Mar. 14, 2019) (finding compelling reasons to seal personally identifiable information including names, addresses, phone numbers, and email addresses).
II. Rule 56(d) Motion
A. Standard of Review
Rule 56(d) permits a court to defer ruling on a motion for summary judgment, and allow time for discovery, when a party demonstrates that it is unable to present facts essential to justify its opposition. See Emp'rs Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1130 (9th Cir. 2004) (citation omitted) (discussing Rule 56(f), the predecessor to Rule 56(d)); see also Fed.R.Civ.P. 56(d) (requiring a party show "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition"). The movant must demonstrate he has diligently pursued discovery and he cannot respond without a delay. See Pfingston v. Ronan Engineering Co., 284 F.3d 999, 1005 (9th Cir. 2002). His affidavit or declaration must state "the specific facts [he] hopes to elicit from further discovery," and that "the sought-after facts are essential to oppose summary judgment." Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir.2008). The Court has discretion to deny a Rule 56(d) request for failure to comply with these requirements. Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir.2006).
B. Analysis
Plaintiff has failed to show that he has diligently pursued discovery and he has not proffered sufficient facts to show that evidence which he seeks exists or would prevent summary judgment.
First, it is unclear if Plaintiff has propounded any requests nearly five months into discovery. His Motion, filed 11 days before the discovery cutoff, does not detail any previous efforts to obtain discovery. There is no evidence that any interrogatories, requests for production of documents, or requests for admissions were served on Pima County on or before October 4, 2022. (See Doc. 21 at ¶ 4.b (written discovery "shall be served at least 45 days before the discovery deadline.")). Moreover, Plaintiff has not previously requested an amendment to the Case Management Order or contacted this Court regarding the existence of any discovery dispute. (See Doc. 21 at ¶ 6.a ("If a discovery dispute arises, the parties promptly shall contact the Court to request a telephone conference concerning the dispute.")). The Motion details financial difficulties and extraneous legal issues and seemingly suggest that these circumstances prevented his efforts in this case. (Doc. 25 at 6) ("Plaintiff can be stressed by environmental conditions and/or circumstances beyond their control to the point it adversely impacts abilities, and skills and may impair their state of mind.") Although his Motion refers to "discovery disputes" and the "need for additional discovery," an email dated October 26, 2022, from Plaintiff to opposing counsel, requests a deadline extension so that Plaintiff can obtain basic discovery including, "1. Depositions[;] 2. Subpoenaing information[;] 3. Asking that a document be submitted[;] 4. Request for Production (RFP)[;] 5. Interrogatories[; and] 6. Non-party Interrogatories. (Ex. F, Doc. 25-3 at 27.) Plaintiff's failure to diligently conduct discovery is proper grounds for the denial of a Rule 56(d) motion.
Second, Plaintiff fails to proffer sufficient facts to show that any evidence which he seeks exists or would prevent summary judgment. Pima County's Motion for Summary Judgment argues: (1) Plaintiff failed to exhaust his administrative remedies therefore his claims are limited to the 2020 Property Appraiser position; and (2) no discriminatory intent exists because the 2020 Property Appraiser position was terminated due to the COVID-19 pandemic, and nobody was interviewed or hired for the position. (Doc. 22 at 2-8.) Pima County attached the Arizona Attorney's Office Civil Rights Division's charge documents, relevant to their motion, in their Statement of Facts. (See Doc. 23.) Pima County's motion makes no reference to Raymond Cruz or his investigation. (Id.) Plaintiff indicates:
Discovery needs to be completed before Plaintiff can respond and defend his complaint. In particular, the Plaintiff has to subpoena the investigation records from the Arizona Attorney's Office Civil Rights Division. In addition to this is the need to get the personal record of the investigator Raymond Cruz. Raymond Cruz was terminated shortly after giving his results on the investigation. This is important because Defendant relies on the results of Raymond Cruz. The investigator was negligent in his investigation of Plaintiff's charge. Raymond Cruz was given a list of names and/or people that has information relevant to the Plaintiff's charge. None of those named witnesses were ever contacted in relation to Plaintiff's charge which may have an impact on Plaintiff's response to Defendant's motion for Summary Judgement [sic].(Doc. 25 at 6.) Plaintiff neither proffers the "specific facts [he] hopes to elicit from further discovery," or how "the sought-after facts are essential to oppose summary judgment." Fed. Home Loan Mortg. Corp., 525 F.3d at 827. He simply states that he must complete additional discovery without explaining how such evidence is relevant to his claims.
Accordingly, his Motion is denied.
To the extent Plaintiff requests additional time, the Court will provide Plaintiff an additional seven (7) days to file his response to the summary judgment motion.
III. Order
Accordingly, IT IS ORDERED DENYING Plaintiff's "Motion to Amend Scheduling and Case Management Order and Plaintiff's Memorandum of Points and Authorities in Support of [his] Motion for Leave to Extend the Deadlines on the Scheduling Order (Second Request)" (Doc. 25).
IT IS FURTHER ORDERED that Plaintiff must file his response to Defendant's Motion for Summary Judgment (Doc. 22), together with a separate Statement of Facts and supporting affidavits or other appropriate exhibits, no later than November 17, 2022. Defendant may file a reply within 15 days after service of Plaintiff's response. The Motion for Summary Judgment will be deemed ready for decision without oral argument on the day following the date set for filing a reply unless otherwise ordered by the Court.
IT IS FURTHER ORDERED DIRECTING the Clerk to separate and file under seal Plaintiff's exhibits, attached to his Motion (Doc. 25), at Dockets 25-1, 25-3, and 25-4. These items contain sensitive personal information and mortgage information.