Opinion
02:06-cv-0340-GEB-KJM.
August 21, 2006
ORDER
This motion was determined to be suitable for decision without oral argument. L.R. 78-230(h).
Plaintiff moves for partial summary judgment under Federal Rule of Civil Procedure 56(b). In response, Defendant requests a Rule 56(f) continuance. For the reasons discussed below, the request for a continuance is granted.
All subsequent references to "Rules" are to the Federal Rules of Civil Procedure.
"Federal Rule of Civil Procedure 56(f) provides a device for litigants to avoid summary judgment when they have not had sufficient time to develop affirmative evidence." United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). "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." Tatum v. City and County of S.F., 441 F.3d 1090, 1100 (9th Cir. 2006). If the affidavit reveals "a continuance is needed to obtain facts essential to preclude summary judgment," then "a district court should continue [the] summary judgment motion." State of Cal. v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998).
In his motion for summary judgment, Plaintiff argues he is entitled to judgment as a matter of law on his due process claim because "there is no genuine dispute regarding any fact material to that issue. . . ." (Pl.'s Not. of Mot. at 1-2.) Plaintiff asserts he "worked pursuant to a contract providing that he would not be fired without a valid reason," but Defendant fired him "without having engaged in any meaningful procedures designed to provide [him] with notice and a fair hearing on the subject of his dismissal." (Pl.'s Compl. ¶ 15; Pl.'s Mem. of P. A. at 2.)
Defendant argues it cannot adequately respond to these allegations without deposing Plaintiff, his physician, and certain members of the Yuba County Water District Board of Directors. (Def.'s Mot. for a Continuance at 2.) Plaintiff rejoins that Defendant "fails to specifically identify any relevant information [it] expects to elicit from any of the individuals it . . . desires to depose." (Pl.'s Opp'n to the Mot. to Continue at 3.) However, Defendant identified "an abundance of information that [could] show that the termination of Plaintiff was factually and procedurally handled correctly," including whether "Plaintiff . . . ha[d] a contract governing his employment[,]" whether Plaintiff was an "at-will employee[,]" and whether "Plaintiff abandoned his job." (Def.'s Mot. for a Continuance at 3-5.)
Therefore, since Defendant has demonstrated discovery is needed to obtain facts essential to preclude summary judgment, but no discovery beyond the initial disclosures has been conducted, the motion for a continuance is granted. Burlington N. Santa Fe R.R. Co. v. Assiniboine Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003) (stating a district court should grant a rule 56(f) motion "fairly freely" if a party has not "had any realistic opportunity to pursue discovery relating to its theory of the case"). Accordingly, the hearing on Plaintiff's motion for summary judgment is continued to February 5, 2007, at 9:00 a.m. Any opposition to the motion for summary judgment shall be filed no later than January 22, 2007; any reply shall be filed no later than January 29, 2007.
IT IS SO ORDERED.