Merritt v. Arizona, State of et al, No. 2:2017cv04540 - Document 98 (D. Ariz. 2018)
Court Description: ORDER denying 63 Motion for Summary Judgment; denying 65 Motion for Summary Judgment; granting 82 Motion for Extension of Time to File Response/Reply ; granting 83 Motion for Extension of Time Deadline. Signed by Judge David G Campbell on 5/17/2018.(DGC, nvo)
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Merritt v. Arizona, State of et al Doc. 98 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Leslie A. Merritt, Jr., 10 Plaintiff, 11 ORDER v. 12 No. CV-17-04540-PHX-DGC 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, 13 14 15 Defendants. 16 17 18 This action arises out of Plaintiff’s arrest, incarceration, and attempted prosecution 19 for the much-publicized I-10 freeway shootings. Plaintiff asserts multiple claims for 20 relief, including false arrest, false imprisonment, malicious prosecution, negligence, 21 intentional infliction of emotional distress, and aiding and abetting. Doc. 8. Defendants 22 have filed motions for summary judgment. Docs. 63, 65. Plaintiff has filed motions for 23 additional time to conduct discovery pursuant to Federal Rule of Civil Procedure 56(d). 24 Docs. 82, 83. The Court will grant Plaintiff’s motions.1 25 26 27 28 1 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. Dockets.Justia.com 1 Rule 56(d) grants the Court discretion to deny a motion for summary judgment in 2 order to allow more time for discovery where the opposing party “shows by affidavit or 3 declaration that, for specified reasons, it cannot present facts essential to justify its 4 opposition[.]” When making a Rule 56(d) determination, the Court should consider 5 “whether the parties have diligently conducted discovery prior to the Rule 56(d) motion, 6 whether they complied with the procedural requirements of the Rule, and whether 7 further discovery would aid the party opposing summary judgment or merely delay the 8 proceedings.” Roosevelt Irrigation Dist. v. Salt River Project, No. 2:10-CV-290-DAE 9 (BGM), 2016 WL 3613278, at *2 (D. Ariz. Feb. 2, 2016). 10 In this case, there is no dispute that Plaintiff has diligently conducted discovery 11 prior to filing the Rule 56(d) motion. See Doc. 88 at 3. Plaintiff has obtained nearly 12 500,000 pages of discovery from Defendants and has taken more than a dozen 13 depositions. 14 Plaintiff also has complied with the procedural requirements of Rule 56(d) by 15 submitting declarations of counsel specifically stating the need for further fact discovery 16 to adequately respond to the summary judgment motions. Docs. 82-1, 83-1. With 17 respect to the State Defendants’ motion, Plaintiff seeks to conduct discovery regarding 18 the DPS crime lab, DPS law enforcement personnel, and the Maricopa County Attorney’s 19 Office personnel. Doc. 82-1 ¶ 3. For the motion filed by the County Defendants, 20 Plaintiff intends to depose Mr. Montgomery, Deputy County Attorneys, and other County 21 employees with relevant knowledge. 22 defendants Edward Leiter and Vanessa Lossico are noticed for June 26, 2018, and the 23 deposition of County Attorney Keith Manning is noticed for the following day. Doc. 94 24 at 4. Counsel describes with sufficient particularity the facts he expects to learn from the 25 anticipated discovery, and avows that those facts are essential to oppose summary 26 judgment. Docs. 82-1 ¶¶ 4-12, 83-1 ¶¶ 4-8. Counsel further states that additional time is 27 needed to prepare declarations from expert witnesses regarding firearms examinations, 28 crime lab operations, and prosecutorial and police procedures. Id. ¶¶ 13, 9. Doc. 83-1 ¶ 3. -2- The depositions of former 1 The State Defendants’ motion seeks summary judgment for seven individuals on 2 all ten claims asserted in the complaint. Doc. 63. The statement of facts includes more 3 than 60 separate paragraphs and exhibits spanning some 700-plus pages. Doc. 64. The 4 County Defendants have joined the State Defendants’ motion, and separately seek 5 summary judgment on similar grounds. Docs. 65, 71. The parties disagree on the scope 6 of facts required to address the probable cause and immunity inquiries. 7 The Court cannot conclude that the additional discovery sought by Plaintiff will 8 shed no light on those issues or other issues raised by the summary judgment motions. 9 See Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (noting that “summary judgment 10 in the face of requests for additional discovery is appropriate only where such discovery 11 would be ‘fruitless’ with respect to the proof of a viable claim”); Nyland v. Rooke, LLC, 12 No. 2:15-cv-01670 JWS, 2016 WL 649072, at *2 (D. Ariz. Feb. 18, 2016) (“While it is 13 proper for a court to deny a Rule 56(d) application ‘where it is clear that the evidence 14 sought is almost certainly nonexistent or is the object of pure speculation,’ here the court 15 cannot conclude that such facts are clearly nonexistent[.]” (quoting Terrell v. Brewer, 935 16 F.2d 1015, 1018 (9th Cir. 1991)). The Court will grant Plaintiff’s Rule 56(d) motions 17 and deny the summary judgment motions without prejudice to their refiling 18 after discovery has been completed. 19 Defendants’ various arguments do not require a different result. The County 20 Defendants ask the Court to construe Plaintiff’s Rule 56(d) motion as a response to 21 Defendants’ summary judgment motion because it includes arguments as to why 22 summary judgment should be denied. Doc. 88 at 1-2. Defendants cite no legal authority 23 in support of this request. 24 judgment issues in his motion is no basis for converting it into a response brief. The mere fact that Plaintiff addressed certain summary 25 Defendants contend that the Rule 56(d) motion should be denied because Plaintiff 26 lacks the evidence necessary to preclude summary judgment. Id. at 3. They assert that 27 “Rule 56 requires what Plaintiff cannot show – genuine issues of material fact,” and yet 28 in the same breath assert that “Plaintiff does not need more time so that he can ‘present -3- 1 all the facts essential to justify his opposition.’” Id. The very purpose of Rule 56(d) is to 2 allow a party sufficient time to take discovery so that he may present facts essential to his 3 opposition. Fed. R. Civ. P. 56(d)(2); see Choquette v. Warner, No. 3:15-CV-05838- 4 BHS-JRC, 2017 WL 773670, at *3 (W.D. Wash. Feb. 27, 2017) (granting Rule 56(d) 5 request without limiting the scope of discovery to ensure that the court was “provided 6 with a complete and accurate record prior to ruling on a motion for summary judgment”). 7 Defendants further contend that Plaintiff has had ample time to conduct discovery 8 and did not object to the filing of an early summary judgment motion at the case 9 management conference. Docs. 88 at 7-8, 90 at 8-9. But Defendants cite no authority 10 suggesting that the lack of an objection constitutes a waiver of the right to seek 11 Rule 56(d) relief once a summary judgment motion is filed. 12 Management Order sets a September 7, 2018 discovery deadline, a date proposed by 13 Defendants. Docs. 32 at 16, 45 at 2. The filing of an early summary judgment motion 14 did not change this deadline or require Plaintiff to complete discovery in time to file a 15 response. Moreover, the Case 16 Defendants claim that their right to immunity will be compromised if Plaintiff is 17 permitted to conduct further discovery. Doc. 88 at 2-3. But the purpose of the immunity 18 doctrine is to ensure that “‘insubstantial claims’ against government officials be resolved 19 prior to discovery and on summary judgment if possible.” Anderson v. Creighton, 483 20 U.S. 635, 640 n. 2 (1987); see Pearson v. Callahan, 555 U.S. 223, 232 (2009) (same). 21 Where, as in this case, “there is a dispute as to both the reasonableness of the official’s 22 actions and the factual characterization of those actions, discovery as to the issue of 23 qualified immunity [is] necessary.” Choquette, 2017 WL 773670, at *2 (citing Anderson, 24 483 U.S. at 646 n.6); see Ngerntongdee v. Vaughn, No. C08-1070RSM, 2008 WL 25 5000244, at *3 (W.D. Wash. Nov. 21, 2008) (noting that qualified immunity principles 26 “do not suggest that courts should make hasty determinations based on an incomplete 27 record”); Hart v. Gaione, No. CV-02-013311-RMT-MANX, 2003 WL 22846344, at *1 28 (C.D. Cal. Nov. 17, 2003) (noting that the qualified immunity defense must be balanced -4- 1 against a plaintiff’s right to discovery). 2 The State Defendants assert that the Rule 56(d) request is merely an attempt to 3 postpone a ruling on their “straightforward” summary judgment motion. Doc. 90 at 2. 4 As noted above, however, Defendants seek summary judgment on all ten claims, for a 5 host of different reasons. Doc. 63 at 2-4. The motion is not limited solely to the issue of 6 probable cause. See id. Moreover, the probable cause inquiry involves a consideration of 7 the totality of the circumstances and “necessarily turns upon the particular facts of the 8 individual case.” Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009). 9 Plaintiff should be permitted to conduct further discovery into the investigation and facts 10 known to Defendants before his arrest. See Spencer v. Peters, No. C11-5424 BHS, 2012 11 WL 4514417, at *16-19 (W.D. Wash. Oct. 2, 2012) (granting Rule 56(d) request on the 12 issue of probable cause where the plaintiff challenged the facts known to officials at the 13 time of his arrest). 14 Plaintiff requests an additional six months to conduct the discovery he needs to 15 respond to the summary judgment motions. Docs. 82 at 2, 83 at 2. As noted above, the 16 Case Management Order set a September 7, 2018 deadline for the completion of fact 17 discovery. Doc. 45 ¶ 4. The order made clear that the Court intends to enforce the 18 deadlines and the parties should plan their litigation activities accordingly. Id. ¶ 9. The 19 Court will not extend the fact discovery period beyond the September 7 deadline. The 20 remaining four months provides ample time for Plaintiff to conduct the discovery needed 21 to oppose summary judgment. 22 IT IS ORDERED: 23 1. 24 25 26 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. 27 28 -5- 1 2 3 3. The schedule set forth in the Case Management Order (Doc. 45) is affirmed. Dated this 17th day of May, 2018. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-
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