Opinion
No. CV-17-04540-PHX-DGC
05-17-2018
Leslie A. Merritt, Jr., Plaintiff, v. State of Arizona; Maricopa County; Bill Montgomery, Maricopa County Attorney; Heston Silbert; Christopher Kalkowski; Frank Milstead; Ken Hunter; Kelley Heape; Jennifer Pinnow; and Anthony Falcone, Defendants.
ORDER
This action arises out of Plaintiff's arrest, incarceration, and attempted prosecution for the much-publicized I-10 freeway shootings. Plaintiff asserts multiple claims for relief, including false arrest, false imprisonment, malicious prosecution, negligence, intentional infliction of emotional distress, and aiding and abetting. Doc. 8. Defendants have filed motions for summary judgment. Docs. 63, 65. Plaintiff has filed motions for additional time to conduct discovery pursuant to Federal Rule of Civil Procedure 56(d). Docs. 82, 83. The Court will grant Plaintiff's motions.
Plaintiff failed to comply with the requirement set forth in the Case Management Order that he place a joint conference call to the Court to discuss whether additional discovery is warranted. Doc. 45 ¶ 12. Because Plaintiff addressed the relevant issues in his written motions, however, the Court finds a conference call unnecessary. In the future, counsel should follow the Court's orders more carefully. --------
Rule 56(d) grants the Court discretion to deny a motion for summary judgment in order to allow more time for discovery where the opposing party "shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition[.]" When making a Rule 56(d) determination, the Court should consider "whether the parties have diligently conducted discovery prior to the Rule 56(d) motion, whether they complied with the procedural requirements of the Rule, and whether further discovery would aid the party opposing summary judgment or merely delay the proceedings." Roosevelt Irrigation Dist. v. Salt River Project, No. 2:10-CV-290-DAE (BGM), 2016 WL 3613278, at *2 (D. Ariz. Feb. 2, 2016).
In this case, there is no dispute that Plaintiff has diligently conducted discovery prior to filing the Rule 56(d) motion. See Doc. 88 at 3. Plaintiff has obtained nearly 500,000 pages of discovery from Defendants and has taken more than a dozen depositions.
Plaintiff also has complied with the procedural requirements of Rule 56(d) by submitting declarations of counsel specifically stating the need for further fact discovery to adequately respond to the summary judgment motions. Docs. 82-1, 83-1. With respect to the State Defendants' motion, Plaintiff seeks to conduct discovery regarding the DPS crime lab, DPS law enforcement personnel, and the Maricopa County Attorney's Office personnel. Doc. 82-1 ¶ 3. For the motion filed by the County Defendants, Plaintiff intends to depose Mr. Montgomery, Deputy County Attorneys, and other County employees with relevant knowledge. Doc. 83-1 ¶ 3. The depositions of former defendants Edward Leiter and Vanessa Lossico are noticed for June 26, 2018, and the deposition of County Attorney Keith Manning is noticed for the following day. Doc. 94 at 4. Counsel describes with sufficient particularity the facts he expects to learn from the anticipated discovery, and avows that those facts are essential to oppose summary judgment. Docs. 82-1 ¶¶ 4-12, 83-1 ¶¶ 4-8. Counsel further states that additional time is needed to prepare declarations from expert witnesses regarding firearms examinations, crime lab operations, and prosecutorial and police procedures. Id. ¶¶ 13, 9.
The State Defendants' motion seeks summary judgment for seven individuals on all ten claims asserted in the complaint. Doc. 63. The statement of facts includes more than 60 separate paragraphs and exhibits spanning some 700-plus pages. Doc. 64. The County Defendants have joined the State Defendants' motion, and separately seek summary judgment on similar grounds. Docs. 65, 71. The parties disagree on the scope of facts required to address the probable cause and immunity inquiries.
The Court cannot conclude that the additional discovery sought by Plaintiff will shed no light on those issues or other issues raised by the summary judgment motions. See Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (noting that "summary judgment in the face of requests for additional discovery is appropriate only where such discovery would be 'fruitless' with respect to the proof of a viable claim"); Nyland v. Rooke, LLC, No. 2:15-cv-01670 JWS, 2016 WL 649072, at *2 (D. Ariz. Feb. 18, 2016) ("While it is proper for a court to deny a Rule 56(d) application 'where it is clear that the evidence sought is almost certainly nonexistent or is the object of pure speculation,' here the court cannot conclude that such facts are clearly nonexistent[.]" (quoting Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991)). The Court will grant Plaintiff's Rule 56(d) motions and deny the summary judgment motions without prejudice to their refiling after discovery has been completed.
Defendants' various arguments do not require a different result. The County Defendants ask the Court to construe Plaintiff's Rule 56(d) motion as a response to Defendants' summary judgment motion because it includes arguments as to why summary judgment should be denied. Doc. 88 at 1-2. Defendants cite no legal authority in support of this request. The mere fact that Plaintiff addressed certain summary judgment issues in his motion is no basis for converting it into a response brief.
Defendants contend that the Rule 56(d) motion should be denied because Plaintiff lacks the evidence necessary to preclude summary judgment. Id. at 3. They assert that "Rule 56 requires what Plaintiff cannot show - genuine issues of material fact," and yet in the same breath assert that "Plaintiff does not need more time so that he can 'present all the facts essential to justify his opposition.'" Id. The very purpose of Rule 56(d) is to allow a party sufficient time to take discovery so that he may present facts essential to his opposition. Fed. R. Civ. P. 56(d)(2); see Choquette v. Warner, No. 3:15-CV-05838-BHS-JRC, 2017 WL 773670, at *3 (W.D. Wash. Feb. 27, 2017) (granting Rule 56(d) request without limiting the scope of discovery to ensure that the court was "provided with a complete and accurate record prior to ruling on a motion for summary judgment").
Defendants further contend that Plaintiff has had ample time to conduct discovery and did not object to the filing of an early summary judgment motion at the case management conference. Docs. 88 at 7-8, 90 at 8-9. But Defendants cite no authority suggesting that the lack of an objection constitutes a waiver of the right to seek Rule 56(d) relief once a summary judgment motion is filed. Moreover, the Case Management Order sets a September 7, 2018 discovery deadline, a date proposed by Defendants. Docs. 32 at 16, 45 at 2. The filing of an early summary judgment motion did not change this deadline or require Plaintiff to complete discovery in time to file a response.
Defendants claim that their right to immunity will be compromised if Plaintiff is permitted to conduct further discovery. Doc. 88 at 2-3. But the purpose of the immunity doctrine is to ensure that "'insubstantial claims' against government officials be resolved prior to discovery and on summary judgment if possible." Anderson v. Creighton, 483 U.S. 635, 640 n. 2 (1987); see Pearson v. Callahan, 555 U.S. 223, 232 (2009) (same). Where, as in this case, "there is a dispute as to both the reasonableness of the official's actions and the factual characterization of those actions, discovery as to the issue of qualified immunity [is] necessary." Choquette, 2017 WL 773670, at *2 (citing Anderson, 483 U.S. at 646 n.6); see Ngerntongdee v. Vaughn, No. C08-1070RSM, 2008 WL 5000244, at *3 (W.D. Wash. Nov. 21, 2008) (noting that qualified immunity principles "do not suggest that courts should make hasty determinations based on an incomplete record"); Hart v. Gaione, No. CV-02-013311-RMT-MANX, 2003 WL 22846344, at *1 (C.D. Cal. Nov. 17, 2003) (noting that the qualified immunity defense must be balanced against a plaintiff's right to discovery).
The State Defendants assert that the Rule 56(d) request is merely an attempt to postpone a ruling on their "straightforward" summary judgment motion. Doc. 90 at 2. As noted above, however, Defendants seek summary judgment on all ten claims, for a host of different reasons. Doc. 63 at 2-4. The motion is not limited solely to the issue of probable cause. See id. Moreover, the probable cause inquiry involves a consideration of the totality of the circumstances and "necessarily turns upon the particular facts of the individual case." Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009). Plaintiff should be permitted to conduct further discovery into the investigation and facts known to Defendants before his arrest. See Spencer v. Peters, No. C11-5424 BHS, 2012 WL 4514417, at *16-19 (W.D. Wash. Oct. 2, 2012) (granting Rule 56(d) request on the issue of probable cause where the plaintiff challenged the facts known to officials at the time of his arrest).
Plaintiff requests an additional six months to conduct the discovery he needs to respond to the summary judgment motions. Docs. 82 at 2, 83 at 2. As noted above, the Case Management Order set a September 7, 2018 deadline for the completion of fact discovery. Doc. 45 ¶ 4. The order made clear that the Court intends to enforce the deadlines and the parties should plan their litigation activities accordingly. Id. ¶ 9. The Court will not extend the fact discovery period beyond the September 7 deadline. The remaining four months provides ample time for Plaintiff to conduct the discovery needed to oppose summary judgment.
IT IS ORDERED:
1. Plaintiff's motions for additional time pursuant to Rule 56(d) (Docs. 82, 83) are granted.
2. Defendants' motions for summary judgment (Docs. 63, 65) are denied without prejudice to their refiling after the close of discovery.
3. The schedule set forth in the Case Management Order (Doc. 45) is affirmed.
Dated this 17th day of May, 2018.
/s/_________
David G. Campbell
United States District Judge