Opinion
Case No. 00-2402-JAR
August 8, 2002
ORDER DENYING WITHOUT PREJUDICE MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter is before the Court on Plaintiff's First Motion for Partial Summary Judgment (Doc. 92). The following pleadings have been filed regarding this motion: Memorandum in Support of Plaintiff's First Motion for Partial Summary Judgment
This list does not include all of the motions for extensions of time, to extend discovery and to compel discovery, and all of the orders addressing these motions.
(Doc. 93)
Affidavit of Dale Lindberg (Doc. 94)
Affidavit of William W. Mullis (Doc. 95)
Defendant Foster Wheeler Energy Corporation's Memorandum In Opposition to Black
Veatch International Company's First Motion for Partial Summary Judgment (Doc. 114)
Attachments by Defendant Foster Wheeler in Support of Memorandum (Doc. 115)
Plaintiff's First Objections and Motion to Strike (Doc. 134)
Plaintiff's Memorandum of Law in Support of its First and Second Objections and Motions to Strike (Doc. 136)
Exhibits to Plaintiff's First and Second Objections and Motions to Strike (Doc. 137)
Plaintiff's Reply in Support of Its First Motion for Partial Summary Judgment (Doc. 139)
Black Veatch International Company's Motion for Leave to Substitute Corrected Pages (Doc. 142)
Defendant Foster Wheeler's Motion for Leave to File Newly Discovered Evidence
Relied on by Foster Wheeler in Opposing Plaintiff Black Veatch's Motion for Partial Summary Judgment, to Supplement Foster Wheeler's Initial Memorandum Opposing Black Veatch's Motion for Partial Summary Judgment, and to Correct Inadvertent Misstatements in Foster Wheeler's Initial Memorandum Opposing Such Motion of Black Veatch (Doc. 145)
Defendant Foster Wheeler's Memorandum in Support of Defendant Foster Wheeler's
Motion for Leave to File Newly Discovered Evidence Relied on by Foster
Wheeler in Opposing Plaintiff Black Veatch's Motion for Partial Summary Judgment, to Supplement Foster Wheeler's Initial Memorandum Opposing Black Veatch's Motion for Partial Summary Judgment, and to Correct Inadvertent
Misstatements in Foster Wheeler's Initial Memorandum Opposing Such Motion of Black Veatch (Doc. 146)
Defendant Foster Wheeler's Supplemental Memorandum in Opposition to Black Veatch's First Motion for Partial Summary Judgment Filed by Foster Wheeler for
the Purpose of Presenting Newly Discovered Evidence and to Correct Inadvertent Misstatements in Foster Wheeler's Initial Memorandum in Opposition to Such Motion of Black Veatch (Doc. 147)
Defendant Foster Wheeler Energy Corporation's First Objections and Motion to Strike (Doc. 149)
Defendant Foster Wheeler Energy Corporation's Memorandum of Law in Support of Defendant's First Objections and Motion to Strike (Doc. 150)
Defendant Foster Wheeler's Memorandum in Opposition to Black Veatch's First Objections and Motion to Strike (Doc. 151)
Plaintiff's Response to Defendant's Motion to File Supplemental Memorandum and to its Supplemental Memorandum (Doc. 164)
Notice of Reliance in Opposition (Doc. 167)
Defendant Foster Wheeler's (a) Motion for an Order Admitting into Evidence Certain
Documentary Evidence Relied on by Foster Wheeler in Opposition to that Portion of Plaintiff Black Veatch's First Motion for Partial Summary Judgment Which Concerns Defendant's Claim Against Black Veatch for Liquidated Damages Due to Late Steel Deliveries, and, Defendant Foster Wheeler's (b)
Alternative Motion for the Court to Withhold Making a Ruling on Such Portion of Plaintiff Black Veatch's First Motion for Partial Summary Judgment Until Foster Wheeler Has Been Allowed a Reasonable Time Within Which to Obtain Discovery of and Submit to the Court Additional Facts Concerning the Authenticity and Admissibility of Such Documents (Doc. 168)
Memorandum of Law in Support of Defendant Foster Wheeler's (a) Motion for an
Order Admitting into Evidence Certain Documentary Evidence Relied on by Foster Wheeler in Opposition to that Portion of Plaintiff Black Veatch's First Motion for Partial Summary Judgment Which Concerns Defendant's Claim Against Black Veatch for Liquidated Damages Due to Late Steel Deliveries, and, Defendant Foster Wheeler's (b) Alternative Motion for the Court to Withhold Making a Ruling on Such Portion of Plaintiff Black Veatch's First Motion for Partial Summary Judgment Until Foster Wheeler Has Been Allowed a Reasonable Time Within Which to Obtain Discovery of and Submit to the Court Additional Facts Concerning the Authenticity and Admissibility of Such Documents (Doc. 169)
Defendant Foster Wheeler Energy Corporation's Motion for Leave to Substitute Original Affidavit of David A. Handley for Copy of Same (Doc. 174)
Plaintiff Black Veatch International Company's Reply to Foster Wheeler's Response to Black Veatch's First Objections and Motion to Strike (Doc. 175)
Plaintiff Black Veatch International Company's Response to Defendant's First Objections and Motion to Strike (Doc. 176).
Reply Memorandum of Defendant Foster Wheeler in Support of its Motion for Leave to File Supplemental Memorandum Opposing Black Veatch's Motion for Partial Summary Judgment (Doc. 178)
Plaintiff's Response to Defendant's Motion to Admit Certain Evidence in Opposition to Plaintiff's Motion for Partial Summary Judgment or to Withhold Ruling on Plaintiff's Motion (Doc. 182)
Reply Brief in Support of Defendant Foster Wheeler's Motion to Admit Certain Evidence in Opposition to Plaintiff's Motion for Partial Summary Judgment or to Withhold Ruling on Plaintiff's Motion for Partial Summary Judgment (Doc. 184)
Plaintiff's Motion for Leave to File a Memorandum in Response to Defendant's Reply Brief in Support of Its Motion to Admit Evidence or to Withhold Ruling (Doc. 188)
Foster Wheeler Energy Corporation's Response to Plaintiff's Motion for Leave to File Surreply (Doc. 194)
There is also an outstanding motion for sanctions for failure to comply with discovery in this case. The discovery deadline is September 27, 2002, and the dispositive motion deadline is November 8, 2002. The pretrial conference is scheduled for October 15, 2002, and the trial is scheduled for April 8, 2003.
The circumstances of a particular case determine the appropriate time for filing a summary judgment motion. When the issue is purely one of law, little or no discovery is required and the motion should be filed early in the case. Although waiting to file motions for summary judgment until just before the final pretrial conference or the trial date obviously diminishes the value of such motions, a motion should not be filed prematurely before the requisite record has been developed. In this case, discovery disputes are ongoing and the discovery deadline has not expired.
Although some courts have suggested that summary judgment "should not . . . ordinarily be granted before discovery has been completed," Fed.R.Civ.P. 56 requires not that all discovery be completed but that the opponent have adequate time for discovery.
See, e.g., Alabama Farm Bureau Mut. Casualty Co. v. American Fidelity Life Ins. Co., 606 F.2d 602, 609 (5th Cir. 1979), cert. denied, 449 U.S. 820 (1980).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The Court finds that there has not been adequate time for discovery. Pending in this case is Defendant Foster Wheeler Energy Corporation's Motion for Sanctions Against Plaintiff And For An Award Of Costs And Attorney's Fees To Defendant (Doc. 204). The motion for sanctions seeks sanctions for Black Veatch's alleged bad faith failure to comply with the Order of U.S. Magistrate Judge Waxse entered May 2, 2002 and bad faith failure to comply with discovery obligations imposed by the Federal Rules of Civil Procedure.
For example, regarding Foster Wheeler's claim for late delivery of shipping documents, Foster Wheeler refers to its response to Interrogatory No. 10 of its Objections and Responses to Plaintiff's Second Set of Interrogatories, which provides that its spreadsheet:
represents an initial assessment by Foster Wheeler of the amounts due it for late delivery of critical shipping documents. Foster Wheeler, however, with the necessary aid of its experts, must conduct a detailed analysis and assessment before it can fully detail and document all its claims for "`late delivery of critical shipping documents,' including the specific documents that Foster Wheeler contends were delivered late, the amount sought for each such late delivery, the basis for calculating each such amount, the specific Contract provision or other standard on which [Foster Wheeler relies] in judging Black Veatch's performance, the length of each such delay, the date that each delay started and ended, the construction schedule activities that were delayed, if any, and the delay, if any, to the overall Project that resulted."
Foster Wheeler, with the necessary aid of its experts, will conduct such an analysis and assessment by review of the documents produced to and/or received from Black Veatch during discovery in this case. When Foster Wheeler, with the necessary aid of its experts, completes that review, it will supplement its answer to this interrogatory and hereby reserves the right to do so.
From the Court's review of Black Veatch's first motion for partial summary judgment, it appears that there are several factual issues that are in dispute and those issues are being developed in this case as discovery occurs. This has created practical problems in addressing Black Veatch's motion. The parties have been filing supplemental pleadings, seeking to submit newly discovered evidence, and attempting to revise previous pleadings as the record is being developed through discovery.
Foster Wheeler has also filed an affidavit pursuant to Fed.R.Civ.P. 56(f) asking the Court to withhold ruling on portions of Black Veatch's motion in order to allow a reasonable time to obtain discovery.
The Court finds that the parties and the Court would be better served if the motion were denied without prejudice to its refiling after the record is developed in this case. Although the Court recognizes that the parties and their counsel have put forth a great deal of effort in addressing the issues in this case, the problem is that they are working with a moving target. Although the Court recognizes the important function that summary judgment motions serve, in this case the motion should be refiled after the record is fully developed. The Court anticipates that the parties will review and update the facts and arguments presented. At that time, the motion and response thereto can be filed based on the current record, without the need for supplemental responses, admission of newly discovered evidence and motions to correct previous pleadings.
Therefore, the Court denies without prejudice, Plaintiff's First Motion For Partial Summary Judgment (Doc. 92). The Court also denies, as moot, the following motions relating to the motion for partial summary judgment: Plaintiff's First Objections and Motion to Strike (Doc. 134)
Defendant Foster Wheeler's Motion for Leave to File Newly Discovered Evidence
Relied on by Foster Wheeler in Opposing Plaintiff Black Veatch's Motion for Partial Summary Judgment, to Supplement Foster Wheeler's Initial
Memorandum Opposing Black Veatch's Motion for Partial Summary Judgment, and to Correct Inadvertent Misstatements in Foster Wheeler's Initial Memorandum Opposing Such Motion of Black Veatch (Doc. 145)
Defendant Foster Wheeler Energy Corporation's First Objections and Motion to Strike (Doc. 149)
Defendant Foster Wheeler's (a) Motion for an Order Admitting into Evidence Certain
Documentary Evidence Relied on by Foster Wheeler in Opposition to that Portion of Plaintiff Black Veatch's First Motion for Partial Summary Judgment Which Concerns Defendant's Claim Against Black Veatch for Liquidated Damages Due to Late Steel Deliveries, and, Defendant Foster Wheeler's (b) Alternative Motion for the Court to Withhold Making a Ruling on Such Portion of Plaintiff Black Veatch's First Motion for Partial Summary Judgment Until Foster Wheeler Has Been Allowed a Reasonable Time Within Which to Obtain Discovery of and Submit to the Court Additional Facts Concerning the Authenticity and Admissibility of Such Documents (Doc. 168)
IT IS SO ORDERED.