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deferring ruling on the defendant's summary judgment motion as premature under Rule 56(d) even though the plaintiffs raised the need for further discovery in their opposition brief
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CASE NO. C14-1962JLR
04-21-2015
PAUL COLVIN & PATRICIA GUERTIN, Plaintiffs, v. JAMES YOUNG & CAROLYN TOOLEY-YOUNG, Defendants.
ORDER DEFERRING RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' SUPPLEMENTAL DECLARATION
I. INTRODUCTION
Before the court are Defendants James Young and Carolyn Tooley-Young's motion for summary judgment (Dkt. # 7) and motion to strike (Dkt. # 12) Plaintiff Paul Colvin's supplemental declaration (Dkt # 11). The court has reviewed Defendants' motions, all submissions filed in support of and in opposition thereto, the balance of the record, and the applicable law. Being fully advised, the court GRANTS Defendants' motion to strike and DEFERS RULING on Defendants' motion for summary judgment until after the parties conduct a limited amount of discovery pursuant to Federal Rule of Civil Procedure 56(d).
II. BACKGROUND
This action arises out of an alleged violation of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510-2522, which prohibits the interception of oral communications. (Compl. (Dkt. # 1) ¶¶ 3.1-3.2.) Plaintiffs and Defendants own and reside on adjoining properties and have been engaged in prior litigation in state court regarding the boundary line between their properties. (Young Decl. (Dkt. # 7) ¶¶ 3-19.) Between July 2011 and August 2012, Defendants operated a security camera on their property. (Id. at ¶¶ 13-16.) On June 16, 2012, Plaintiffs complained to local law enforcement that the Defendants' security camera was pointed at Plaintiffs' home. (Compl. Ex. B. ("Incident Report") at 20.) Defendants removed the security camera before June 21, 2012. (See id. at 24.)
The ECPA expressly provides a private cause of action. See 18 U.S.C. § 2520(a) ("[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.").
On December 24, 2014, Plaintiffs filed this action for damages and declaratory relief. (See Compl.) Pursuant to Federal Rule of Civil Procedure 26 and this court's scheduling order, the parties were not permitted to begin discovery until March 24, 2015. (Sched. Ord. (Dkt. # 6) at 1.) Defendants filed their motion for summary judgment on February 13, 2015, more than a month prior to that date. (See Mot. (Dkt. # 7).) Defendants' motion for summary judgment was noted for consideration on March 13, 2015. (See id. at 1.)
Mr. Colvin submitted a supplemental declaration in response to Defendants' motion for summary judgment on March 17, 2015. (Supp. Colvin Decl. (Dkt. # 11).) Defendants moved to strike this supplemental declaration. (Mot. to Strike (Dkt. # 12).) Plaintiffs filed no response to Defendants' motion to strike. (See generally Dkt.) Defendants' motion for summary judgment and motion to strike are now before the court.
III. DISCUSSION
A. Defendants' Motion to Strike
Defendants move to strike the supplemental declaration filed by Mr. Colvin on the grounds that (1) Plaintiffs filed the declaration after March 13, 2015, which was the noting date for Defendants' motion for summary judgment, and (2) Mr. Colvin failed to sign and date the declaration. (Mot. to Strike at 1-2.) The court need not consider the timeliness of Mr. Colvin's supplemental declaration because the lack of his signature is dispositive of Defendants' motion.
Declarations must be signed and certified as true under penalty of perjury. See 28 U.S.C. § 1746. Unsworn declarations must at least substantially comply with the requirements of 28 U.S.C. § 1746. See Commodity Futures Trading Comm'n v. Topworth Int'l, Ltd., 205 F.3d 1107, 1112 (9th Cir. 1999). Furthermore, pursuant to Federal Rule of Civil Procedure 11(a), "[t]he court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention." Fed. R. Civ. P. 11(a).
Mr. Colvin submitted his supplemental declaration on March 17, 2015. (See Supp. Colvin Decl.) Defendants filed their motion to strike on March 18, 2015, calling Mr. Colvin's attention the omission of his signature. (Mot. to Strike at 2.) Mr. Colvin failed to remedy this omission. To date, he has not filed a properly signed copy of his supplemental declaration. (See generally Dkt.) Indeed, as noted above, Plaintiffs did not respond at all to Defendants' motion to strike. The supplemental declaration does not comply with either 28 U.S.C. § 1746 or Rule 11(a). Accordingly, the court grants Defendants' motion to strike Mr. Colvin's supplemental declaration.
Local Rule 7(b)(2) provides that "[e]xcept for motions for summary judgment, if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the motion has merit." Local Rules W.D. Wash. LCR 7(b)(2).
B. Defendants' Motion for Summary Judgment
Defendants move for summary judgment with respect to Plaintiffs' claim under the ECPA. (Mot. at 1 (citing Fed. R. Civ. P. 56(a)).) Defendants further argue that if the court grants summary judgment over this claim, which is Plaintiffs' only federal claim, then the court should decline to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims. (Id. at 4-5); see also 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over [other claims] . . . if . . . the district court has dismissed all claims over which it has original jurisdiction.") For the reasons stated below, the court defers ruling on Defendants' motion for summary judgment until the parties have conducted a limited amount of discovery.
1. Standard for Summary Judgment
Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the nonmoving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). In this inquiry, courts are required to view the facts and to draw reasonable inferences "in the light most favorable" to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The court regards facts asserted by the nonmoving party as true, if supported by affidavits or other evidentiary material. See, e.g., Hunt v. Cromartie, 526 U.S. 541, 551 (1999).
Summary judgment is not appropriate, however, when the nonmoving party has not had a sufficient opportunity to discover relevant evidence. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 n.5, 257; Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004); Metabolife Int'l v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001). Federal Rule of Civil Procedure 56(d) provides that the court may deny or continue a motion for summary judgment and allow time for discovery if the opposing party shows that, for specified reasons, the party cannot demonstrate essential facts that would preclude summary judgment. Fed. R. Civ. P. 56(d); Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990); Garrett v. San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). Courts should freely grant requests for further discovery when a party files a summary judgment motion early in the litigation, before the opposing party has had a realistic opportunity to pursue discovery relating to its theory of the case. Burlington N. Santa Fe R.R. v. Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773-74 (9th Cir. 2003).
Effective December 1, 2010, Rule 56 was amended and the provisions of subdivision (f) were moved to subdivision (d), without substantial change. Fed. R. Civ. P. 56, Notes of Advisory Committee on 2010 amendments ("Subdivision (d) carries forward without substantial change the provisions of former subdivision (f)."). Practice under the rule remains essentially the same, and courts apply case law that interpreted prior Rule 56(f) to current Rule 56(d). See e.g., Madsen v. Risenhoover, Civil No. 09-5457 SBA PR., 2012 WL 2873836, at *1 n.1 (N.D. Cal. July 12, 2012); Norwood v. Hubbard, Civil No. 1:07-CV-00889-SMM, 2011 WL 836728, at *2 n.1 (E.D. Cal. Mar. 4, 2011).
Although a party's request for additional discovery need not be in the form of a formal motion, broad references to a need for additional discovery, or general statements that some discovery is not yet complete, are insufficient under Rule 56(d). See, e.g., Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir. 1986) (finding assertion that discovery would "unearth facts that would reveal that there exists a genuine dispute as to material facts" insufficient). Instead, a party must identify the specific facts that further discovery would reveal and explain why those facts would preclude summary judgment. See Fed. R. Civ. P. 56(d); Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1100 (9th Cir. 2006) ("A party requesting a continuance pursuant to Rule 56(f) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment."); Cal. ex rel. Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (noting that Rule 56(f) "requires litigants to submit affidavits setting forth the particular facts expected from further discovery"); Hall, 791 F.2d at 761 (requiring the nonmoving party to "make more clear what information he is seeking and how it would preclude summary judgment").
A memorandum opposing summary judgment is sufficient to raise the question of whether additional discovery is warranted under Rule 56(d). Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 n.1 (9th Cir. 1986) (opposition to motion for summary judgment sufficient to raise Rule 56(f) inquiry); see also Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1100-01 (9th Cir. 2006) (declaration supporting opposition to motion for summary judgment sufficient to raise Rule 56(f) inquiry).
2. Defendants' Motion
The ECPA prohibits the audio recording of third-party communications, but not video recording. See United States v. Koyomejian, 970 F.2d 536, 537 (9th Cir. 1992) ("Silent domestic video surveillance is neither prohibited nor regulated by Title I [of the ECPA]."). Defendants assert that the security camera in question does not have audio recording capabilities, that Plaintiffs have failed to provide first-hand knowledge of an interception of oral communications, and that Defendants are thus entitled to judgment as a matter of law on this claim. (Mot. at 2-4.) In support of their motion for summary judgment, Defendants submit the declaration of James Young. (See Young Decl.) Mr. Young testifies that the video camera he installed on his property "did not have audio capability." (Id. ¶ 14.) He further testifies that the camera "did not have a microphone" or any other means of recording sound. (Id.)
In response, Plaintiffs contend that they have reason to believe the camera can and did record audio. (Resp. (Dkt. # 8) at 3.) The evidence upon which Plaintiffs rely, however, is scant and speculative at best. Plaintiffs submit a declaration from Mr. Colvin relating incidents in which he believes Defendants were able to hear Plaintiffs' private conversations based on Defendants' subsequent actions, which Mr. Colvin viewed as suspicious. (See Colvin Decl. (Dkt. # 9).) In the first incident, Mr. Colvin said in a private conversation that he would call his attorney to see if he could legally stop the cutting of a tree outside his home. (Id. at 2.) Mr. Colvin testifies that an hour later, a neighbor, who is not a party to this suit, threatened him and told him not to try to stop the tree cutting. (Id.) In the second incident, Mr. Colvin testifies that he set up a camera to take pictures of Defendants' spotlight but the spotlight turned off just when he was about to take a picture. (Id. at 3.) Mr. Colvin later said in a private conversation that he wanted to take a picture of the light to use in a lawsuit. (Id.) He testifies that following this conversation the light has never been activated again. (Id.)
There are limits to the sufficiency of evidence offered to support or defeat a motion for summary judgment. Conclusory or speculative testimony is insufficient to raise a genuine issue of fact and defeat summary judgment. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979) (ruling that a conclusory and speculative affidavit did not defeat summary judgment because it "failed to set forth any specific facts within [the declarant's] personal knowledge"). An affidavit or declaration will not defeat summary judgment if it contains no more than conjecture or a scintilla of evidence insufficient to support a jury verdict. See Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) ("[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment."); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.").
Even viewing Mr. Colvin's declaration in the light most favorable to Plaintiffs, as the court is required to do, it is insufficient to raise a genuine issue of material fact concerning the audio capabilities of Defendants' video camera. A reasonable jury could not find for Plaintiffs based on the evidence presented in Mr. Colvin's declaration. Indeed, Plaintiffs appear to recognize the flimsy nature of the evidence they offer when they acknowledge in their responsive memorandum "that sometimes in life, such odd happenings do occur without wrongdoing." (Resp. at 4.)
Plaintiffs also argue, however, that summary judgment is inappropriate at this time because they have not yet had an opportunity to conduct discovery into the camera's audio recording capabilities. (See Resp. at 1-2, 5-6 (citing Fed. R. Civ. P. 56(d)).) Plaintiffs explain that they are unable to produce evidence necessary to raise a genuine dispute of material fact on this issue because the camera in question is in the custody of Defendants. (Id. at 1) Further, at the time of Defendants' motion, the discovery period had not yet begun. (See Sched. Ord. at 1.) In order to respond to Defendants' motion, Plaintiffs request a sales receipt showing the make and model number of the camera, a picture of the camera sufficient to identify it, and an inspection of the camera itself. (Resp. at 1-2.) The court finds that permitting a period of discovery would allow Plaintiffs or their expert to determine whether the camera in question had audio recording capabilities.
Plaintiffs have had no opportunity for discovery, so summary judgment is inappropriate at this stage of litigation. See Fed. R. Civ. P. 56(d) ("If a nonmovant shows . . . that, for specified reasons, it cannot present facts essential to justify its opposition, the court may . . . defer considering the motion or deny it[,] . . . allow time to obtain affidavits or declarations or to take discovery[,] or . . . issue any other appropriate order."). Plaintiffs demonstrate that they cannot present facts essential to opposing summary judgment because the discovery period had not begun at the time Defendants filed their motion. Based on the foregoing, the court will defer ruling on Defendants' motion until after the parties have had the opportunity to conduct the limited discovery requested by Plaintiffs.
The discovery the court permits at this time will be limited because Defendants' motion raises issues concerning the court's exercise of supplemental jurisdiction over Plaintiffs' remaining state law claims. Defendants argue that, if the court dismisses Plaintiffs' claim under ECPA, the court should decline to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims.
The supplemental jurisdiction statute, 28 U.S.C. § 1367, provides that when the district court has original jurisdiction over a civil action, it will have supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). A district court may, in its discretion, decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); Foster v. Wilson, 504 F.3d 1046, 1051 (9th Cir. 2007). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims." Acri v. Varian Assoc., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
The court expresses no opinion at this time as to whether the exercise of supplemental jurisdiction would be appropriate if summary judgment is granted with respect to Plaintiffs' claim under the ECPA. The court recognizes, however, that should Defendants' motion be granted, Plaintiffs' remaining state law claims may be heard in state court, not federal court. Thus, the court will limit the discovery the parties may conduct at this time to issues related to Plaintiffs' claim under the ECPA and Defendants' motion for summary judgment on that claim.
Specifically, Defendants shall produce to Plaintiffs all documents related to the purchase of the video camera or any other document showing the make and model number of the camera. Further, Defendants shall produce the video camera for inspection by Plaintiffs and their expert. Defendants or their representatives, of course, may be present during any such inspection. Defendants must produce these documents and the camera for inspection no later than 30 days from the date of this order. The court prohibits the parties from engaging in any other discovery at this time.
Following completion of the discovery delineated above, Plaintiffs may file a supplemental response to Defendants' motion for summary judgment within 60 days of the date of this order. Plaintiffs' supplemental response may include a responsive memorandum, along with any appropriate declarations or affidavits. Defendants may then file a supplemental reply no later than 5 days after the filing date of Plaintiffs' supplemental response. Following these submissions, the court will rule on Defendants' motion for summary judgment and, if necessary, address the court's exercise of supplemental jurisdiction over Plantiffs' state law claims.
The page limitations delineated in Local Rule 7(e)(3) shall apply to the parties' supplemental submissions. See Local Rules W.D. Wash. LCR 7(e)(3).
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IV. CONCLUSION
For the foregoing reasons, the court GRANTS Defendants' motion to strike Mr. Colvin's supplemental declaration (Dkt. # 12) and DEFERS RULING on Defendants' motion for summary judgment (Dkt. # 7). The court also ORDERS the parties to engage in limited discovery as delineated above in the court's order. Finally, the parties may file supplemental submissions with respect to Defendants' motion for summary judgment, as also delineated above. If no supplemental submissions are filed within the specified time frame, the court will grant Defendants' motion for summary judgment as to the ECPA claim, and will consider whether or not to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims at that time.
Dated this 21st day of April, 2015.
/s/_________
JAMES L. ROBART
United States District Judge