Opinion
C.A. No. 00-136 (DRD).
February 15, 2001
James M. Curran, Esq., Heilman Curran, P.C., Milltown, N.J., for Plaintiff.
James B. Clark III, Assistant United States Attorney, Office of the United States Attorney, Newark, N.J., for Defendants, Pat Flood, Tom Cindric, Greg Hilton, James Capra, Tim McDermitt, Ron Delfidio, and Alex Koumanelis.
OPINION
This matter is before the court on the motion for summary judgment of defendants Pat Flood, Tom Cindric, Greg Hilton, James Capra, Tim McDermitt, Ron Delfidio, and Alex Koumanelis. For the reasons that follow, the motion is denied.
FACTUAL BACKGROUND
In this civil action, Plaintiff Jorge Pitalua ("Pitalua") alleges that on or about October 8, 1998, the movant defendants, all of whom were agents with the United States Drug Enforcement Agency (collectively, the "DEA defendants"), together with defendants who were police officers with the Police Departments of Edison and Plainfield Townships, New Jersey (the "nonmovant defendants"), executed a search warrant at 753 Carlton Avenue in Plainfield, New Jersey. Pitalua alleges that he was asleep in his basement room in the multi-family dwelling at that address at the time the warrant was executed; upon being awakened by the execution of the warrant, which called neither for a search of Pitalua's person nor his premises, Pitalua alleges he went upstairs to find out what was happening and was assaulted by the DEA defendants and/or the nonmovant defendants, causing him physical and emotional injury. Pitalua claims violations of his rights under New Jersey law, the New Jersey Constitution, and various amendments of the United States Constitution, for which he seeks redress under 42 U.S.C. § 1983 and supplemental state-law claims.
DISCUSSION
The DEA defendants have now moved for summary judgment on the ground that, under the direction of James Capra ("Capra"), they searched only the top floor of the dwelling at 753 Carlton Avenue on the night in question, whilst the nonmovant defendants searched the remainder of the dwelling, including the basement. Capra states as much in his unsworn declaration, Declaration of James Capra, 12/14/00, ¶¶ 3, 4, at 2-3; he further states that two of the nonmovant defendants caused Pitalua's injuries, id. ¶ 4, at 3, and that the DEA defendants had nothing to do with Pitalua's injuries, id. ¶ 5.
Pitalua responds that because he was shocked and surprised by the sudden execution of the search warrant on the night in question, he was unable to identify the DEA or nonmovant defendants who assaulted him. This response is borne out by the unsworn certification of plaintiff's attorney; Certification of James M. Curran, 1/19/01, ¶ 5, at 2. Pitalua further protests that he has attempted several times to depose members of the Edison and Plainfield Police Departments but has to date been unable to consummate these depositions. Id. ¶ 7. Based on his inability to depose such persons, the pendency of discovery, and the insufficiency of the evidentiary record, Pitalua argues it would be premature to grant summary judgment in the DEA defendants favor at this time.
The gravamen of Pitalua's opposition to the DEA defendants' motion is that his inability to demonstrate, through affidavits or other appropriate submissions, the existence of a genuine issue of material fact as required by Federal Rule of Civil Procedure 56(e) should be excused under Rule 56(f) for the reasons set forth in his attorney's certification submitted under the latter rule.
Rule 56(f) reads as follows:
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 make such other order as is just.
Fed.R.Civ.P. 56(f) (1937, as amended through 1987). Pitalua's attorney has stated by way of unsworn certification — which has the same force and effect as a sworn affidavit, 28 U.S.C. § 1746 (1976) — that he needs more time to take certain depositions and to conduct further discovery in an attempt to determine which of the DEA and/or nonmovant defendants assaulted Pitalua or contributed in some meaningful way to his injuries. This request comports with Magistrate Judge Wigenton's scheduling order filed on December 26, 2000, which establishes March 30, 2001 as the deadline for discovery, and does not appear to be borne out of dilatory or shiftless conduct.
Pitalua must have the opportunity to discover who allegedly assaulted and injured him; once discovery closes, whether or not Pitalua has been successful in this discovery quest, motions for summary judgment will be ripe for filing and determination. Magistrate Judge Wigenton's scheduling order establishes April 23, 2001 as the deadline for dispositive motions; there should be ample time for the preparation and filing of such motions between the close of discovery and the motion deadline.
CONCLUSION
The DEA defendants' motion for summary judgment shall be denied without prejudice to its timely renewal following the close of discovery. An appropriate order shall enter.