Opinion
Case No. 00-1318-JAR
November 25, 2002.
MEMORANDUM ORDER GRANTING PLAINTIFFS' MOTION TO STAY RESPONSE TO STEMBRIDGE'S MOTION FOR SUMMARY JUDGMENT UNTIL DECEMBER 6, 2002
On October 22, 2002, defendant Travis W. Stembridge, M.D.(Stembridge) filed a motion for summary judgment. Rather than respond to Stembridge's summary judgment motion, on November 14, 2002, Plaintiffs filed a motion to stay their response (Doc. 256), on the basis that Defendants Stembridge and Wesley Medical Center have not yet responded to Plaintiffs' outstanding discovery requests.
Plaintiffs seek a stay pursuant to Fed.R.Civ.P. 56(f), which gives the court discretion to deny a motion for summary judgment, or allow a party to stay its response to a summary judgment motion, or have additional time for discovery, if the party files an affidavit that states with specificity how "the desired time would enable [the nonmoving party] to meet its burden in opposing summary judgment." But, "Rule 56(f) may not be invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable . . . ." Nor is an assertion "that the evidence supporting a [party's] allegation is in the hands of the [opposing party] . . ." a sufficient showing under Rule 56(f).
Rule 56(f) of the Federal Rules of Civil Procedure states: (f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir. 1993) (citations omitted).
Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986).
Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir. 1985) (quoting Patty Precision v. Brown Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984)).
Courts interpreting Rule 56(f) have held that the general principal is that "summary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Furthermore, "another party's exclusive control of necessary information is a factor weighing heavily in favor of relief under Rule 56(f)."
Price v. Western Resources, Inc., 232 F.3d 779, 783 (10th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5 (1986)); see also Hein v. Techamerica Group, Inc., 1991 WL 12865, *2 (D.Kan. 1991) (finding that "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery") (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (Emphasis as found in original).
American Maplan Corp. v. Heilmayr, 165 F. Supp.2d 1247, 1254 (D.Kan. 2001) (citation omitted).
Plaintiffs response to Stembridge's motion was due on November 14, 2002, the day Plaintiffs filed the instant motion to stay their response. No prior extensions have been requested or granted to Plaintiffs to respond to Stembridge's motion. The requested stay is necessary to allow Stembridge and Wesley Medical Center time to respond to Plaintiff's outstanding discovery requests which will not be due until November 27, 2002. The discovery requests include Plaintiff's Second Set of Requests for Production of Documents to Defendant Wesley Medical Center and Plaintiff's Second Set of Requests for Admission to Defendant Travis W. Stembridge, M.D. This discovery requests information that (a) is essential for the Plaintiff's response; (b) is in the exclusive control of Stembridge and Wesley Medical Center; and (c) will enable Plaintiffs to meet their burden in opposing Stembridge's motion. Plaintiffs allege that the information sought in Plaintiffs' discovery requests is essential for Plaintiffs' response because it will confirm the employment relationship of Wesley Medical Center with Stembridge, as Program Director of the OB/GYN Residency Program, which Plaintiffs allege will allow them to show that Stembridge is not entitled to Eleventh Amendment immunity.
The discovery deadline in this case is January 10, 2003, and the deadline for filing dispositive motions is February 17, 2003. Plaintiffs' proposed stay would have no effect on the current scheduling timetable.
IT IS THEREFORE ORDERED that Plaintiffs' Motion to Stay Response to Defendant Travis W. Stembridge, M.D.'s Motion for Summary Judgment (Doc. 256) IS GRANTED.
IT IS FURTHER ORDERED THAT PLAINTIFFS SHALL FILE THEIR RESPONSE TO STEMBRIDGE'S SUMMARY JUDGMENT MOTION ON OR BEFORE DECEMBER 6, 2002.
IT IS SO ORDERED.