Opinion
3-99-CV-2289-AH.
August 17, 2001.
MEMORANDUM OPINION AND ORDER
Pursuant to the written consents of the parties and the District Court's order of transfer filed on February 5, 2000, in accordance with 28 U.S.C. § 636(c), came on to be considered Defendant's motion for summary judgment, brief and appendix filed on June 18, 2001, and Plaintiff s response and motion for continuance filed on August 13, 2001, and the court finds and orders as follows:
Defendant's motion for summary judgment addresses both the federal claims and Plaintiff's state law promissory estoppel claim alleged in Plaintiff's original complaint filed in this action on October 7, 1999.
In response to Defendant's motion with respect to his federal claims, i.e. Temple's claims predicated on the provisions of The Family Medical Leave Act (FMLA) and on the provisions of The Americans With Disabilities Act of 1990 (ADA), Plaintiff concedes that he is unable to prevail on these claims. See response at page 3. Further, he does not present the court with anything to show the existence of any genuine issues of fact with respect to his federal claims.
At the hearing held on August 1, 2001, to consider Plaintiff's motion to dismiss without prejudice, Plaintiff's counsel offered to stipulate to a dismissal of his federal claims with prejudice.
Plaintiff's response to Defendant's motion as it relates to his federal claims is close to or the equivalent of no response at all. Even when no response is filed a court may not grant a motion for summary judgment by default. However, when no response is made, a court may grant summary judgment when the movant's summary judgment evidence establishes a prima facie showing of entitlement to judgment. See Eversley v. MBank Dallas, 843 F.2d 172 (5th Cir. 1988). The court, having reviewed Defendant's summary judgment evidence and its brief with respect to Plaintiff's federal claims, finds that Defendant has demonstrated that there are no genuine issues of fact and that Defendant is entitled to judgment in its favor on such federal claims. Therefore, Defendant's motion for summary judgment on Plaintiff's claims brought pursuant to the FMLA and the ADA will be granted.
In support of its motion for summary judgment with respect to Plaintiff s promissory estoppel claim Defendant relies in part on Plaintiff's deposition testimony that he had "no idea" if Defendant ever made a promise that he could take leave without any negative impact on his employment status. See Defendant's brief at page 24 and Defendant's Appendix at 143 (Plaintiff s deposition at page 133, lines 7-11).
Plaintiff himself has not filed an affidavit in response to Defendant's motion which either contradicts his prior deposition testimony or seeks to explain it. Rather his counsel has filed an affidavit in support of Plaintiff s request for additional discovery pursuant to Rule 56(f). Plaintiff correctly notes that Defendant filed a motion for protective order on November 3, 2000, in response to Plaintiff s attempt to obtain discovery beyond the discovery deadline of October 31, 2000, imposed in the court's order filed on March 23, 2000.
In addressing Plaintiff s Rule 56(f) request it is pertinent to recount additional relevant facts.
In his response to Defendant's motion for protective order filed on November 20, 2000, Plaintiff reiterated his efforts to obtain discovery by conferring with and in correspondence to Defendant's attorney of record commencing on October 3, 2000. Plaintiff's motion includes a letter from Defendant's former counsel of record dated October 6, 2000, specifically stating the Defendant would not agree to an extension of the discovery deadline. Defendant's motion for protective order pertained to Plaintiff's service of a Rule 30(b)(6) notice of depositionduces tecum on Defendant's counsel on October 25, 2000, for deposition(s) to commence on November 6, 2000. Although Rule 30 does not provide a time frame within which a party must designate a person or persons pursuant to Rule 30(b)(6), twelve days notice was an unreasonably short time, given the breadth of Plaintiff's notice. More to the point is the fact that in also calling for production of documents, Rule 30(b)(5) and Rule 34 require at least thirty days notice, i.e. no earlier than November 24, 2000. Both the deposition dated noticed by Plaintiff and the date on which a response to Plaintiff's Rule 30(b)(6) documents request would have been due were beyond the discovery deadline. Equally relevant is the fact that in neither Plaintiff's response to Defendant's motion for protective order nor in his response to Defendant's motion for summary judgment does he identify the discovery which he served on Defendant or which he obtained in this case between the date of this court's scheduling order filed on March 23, 2000, and October 3, 2000. In a word it appears that Plaintiff was merely dilatory in commencing any discovery in this case, which would not justify an extension of the discovery deadline particularly when such was opposed by Defendant.
On November 13, 2000, the court held a hearing on Defendant's motion for leave to amend. At the hearing Plaintiff argued that were Defendant's motion granted he would be prejudiced in his ability to respond to Defendant's newly asserted affirmative defenses because the discovery deadline had passed and Defendant was opposing his effort to take any further discovery. Plaintiff also stated that he wished to amend his complaint as well. The court granted Defendant's motion for leave to amend and assured Plaintiff's counsel that additional limited discovery would be permitted, if warranted in light of Defendant's newly asserted defenses. The court also directed Plaintiff to file any motion for leave to amend his complaint by November 20, 2000. Defendant also indicated its intent to file a motion for summary judgment by November 21, 2000, the date set in the court's March 23, 2000, scheduling order. The court advised Plaintiff that, if appropriate, he could file a motion under Rule 56(f) in response to Defendant's motion for summary judgment.
Defendant did not file a motion for summary judgment on November 21st, but instead on November 15, 2000, moved for an extension of the deadline to file dispositive motions. On November 20, 2000, Plaintiff filed his motion for leave to amend as well as his response to Defendant's motion for protective order. By letter dated November 21, 2000, the court informed counsel that the deadline for filing dispositive motions, previously set, would be vacated and that a new deadline would be set once Plaintiff's motion for leave to amend was ruled upon. Counsel was further informed that a ruling on Defendant's motion for protective order would be deferred and that in the interim the court "expected that no depositions [would] be noticed — absent agreement."
Plaintiff twice filed motions for leave to amend his original complaint, both of which were opposed by Defendant. Plaintiff's motions were denied by the court in orders filed on January 2, 2001, and April 16, 2001, respectively. To the court's knowledge no additional discovery has been taken by either side since prior to November 3, 2000. The court never formally ruled on Defendant's motion for protective order.
The motion for protective order aside, Plaintiff's motion for additional discovery pursuant to Rule 56(f) is without merit. "To obtain a continuance of a motion for summary judgment in order to obtain further discovery, a party must indicate to the court by some statement . . . why he needs additional discovery and how the additional discovery will create a genuine issue of material fact." Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999) (Emphasis in original) (citations omitted).
Plaintiff's counsel's affidavit fails under both criteria. Despite the fact that Defendant was permitted to add additional affirmative defenses in its first amended answer, it relies on none of them in support of its motion for summary judgment. Plaintiff s promissory estoppel claim has been in the case since the filing of his original complaint on October 7, 1999 (See complaint at pages 5-6, Count Three). Moreover, since Plaintiff was the promisee in his promissory estoppel clam, he himself should be able to articulate the alleged promise — if indeed one was made to him — without resort to any of Defendant's employees, in order to show the existence of genuine issues of fact. He has not done so. The only summary judgment evidence relating to the alleged promise is Plaintiff's deposition testimony, supra.
Under Texas law, promissory estoppel has four elements: (1) a promise; (2) foreseeability of reliance thereon by the promisor; (3) substantial reliance by the promisee to his detriment; and (4) a definite finding that injustice can be avoided only by the enforcement of the promise. E.g. see Zenor v. El Paso Healthcare Systems. Ltd., 176 F.3d 847, 864 (5th Cir. 1999).
Temple alleges that Defendant promised him no adverse employment action would be taken on account of his leaves of absence (Complaint at ¶¶ 24-26); see also Plaintiff's response to Defendant's motion for summary judgment at pages 7-9. However, pleadings and arguments alone are insufficient to demonstrate genuine issues of fact precluding summary judgment.E.g. see Hawkins v. Ford Motor Credit Co., 210 F.3d 540, 545 (5th Cir. 2000).
As the descriptive title of the cause of action itself connotes the existence of a promise is a sine qua non of a promissory estoppel claim. The mere fact that Tony Girtman granted Temple two leaves of absence — once to visit his ill brother-in-law and a second time to attend the brother-in-law's funeral — did not constitute any promise that such leaves would not have an adverse effect on his continued employment. Indeed, as Plaintiff himself testified under oath, he had no idea what effect his absences would have — it wasn't even a consideration (See Defendant's Appendix, supra, at 143). Under the summary judgment evidence before the court, no rational finder of fact could find that Defendant ever made a promise to Plaintiff that he could take leaves of absence without any risk to or adverse effect on his continued employment with Defendant. Therefore, summary judgment will be granted in Defendant's favor on Plaintiff s promissory estoppel claim (See Hawkins v. Ford Motor Credit Co., supra, 210 F.3d at 545 and n. 12).
Defendant also argues that as a matter of law Plaintiff as an "at-will" employee is precluded as a matter of law from maintaining an action based on promissory estoppel. Montgomery County Hospital District v. Brown, 965 S.W.2d 501 (Tex. 1998) is not directly on point since that case was brought as a breach of contract action. There is a conflict among the intermediate appellate courts of Texas as whether at-will employment permits a promissory estoppel action. See Zenor v. El Paso Healthcare System. Ltd., supra, 176 F.3d at 864-65. For the reasons noted above it is unnecessary to address this alternative basis for summary judgment.
For the foregoing reasons, it is ORDERED that Plaintiff's motion for continuance pursuant to Rule 56(f) is denied, and
IT IS FURTHER ORDERED that Defendant's motion for summary judgment is granted.
A copy of this order shall be transmitted to counsel for the parties.