Dennis v. ESS Support Services Worldwide et al, No. 2:2015cv00690 - Document 53 (E.D. La. 2016)

Court Description: ORDER AND REASONS denying without prejudice 40 Motion for Summary Judgment. IT IS FURTHER ORDERED that counsel for the parties work in good faith to schedule a deposition of Dr. Bostick, to take place no later than Wednesday, June 1, 2016. The d eadline for plaintiff to depose Dr. Bostick will not be extended, except for good cause shown. As soon as the deposition of Dr. Bostick has been taken and before the deadline for pretrial motions has passed, ESS may re-urge its motion for summary ju dgment by filing a supplemental memorandum in support of its motion 40 . Upon the filing of such a supplemental memorandum by ESS, the Clerk of Court shall mark R. Doc. 40 as awaiting disposition. Plaintiff shall have ten calendar days to reply to such a supplemental memorandum by ESS, at which point the re-urged motion for summary judgment will go under submission on the briefs and without oral argument.. Signed by Judge Susie Morgan. (bwn)

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Dennis v. ESS Support Services Worldwide et al Doc. 53 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A GEORD ON D EN N IS, Pla in tiff CIVIL ACTION VERSU S N o . 15-6 9 0 ESS SU PPORT SERVICES W ORLD W ID E, ET AL D e fe n d an ts SECTION "E"( 4 ) ORD ER AN D REAS ON S Before the Court is the “Motion for Sum m ary J udgm ent on Plaintiff’s Maintenance and Cure Claim s” filed by Defendant, S.H.R.M. Catering Services, Inc. d/ b/ a Eurest Support Services (“ESS”). 1 ESS seeks sum m ary judgm ent on Plaintiff’s m aintenance-and-cure claim under the Fifth Circuit’s decision in McCorpen v. Central Gulf Steam ship Corp., 396 F.2d 547 (5th Cir. 1968), as well as a num ber of other asserted defenses. 2 Plaintiff tim ely opposed the m otion and the Court later granted plaintiff leave to file a supplem ental m em orandum in opposition. 3 The Court also granted ESS leave to file a reply in support of its m otion. 4 In both of its filed oppositions, plaintiff requests additional tim e to obtain deposition testim ony of plaintiff’s currently treating physician, Dr. Bostick, as to whether plaintiff’s current ankle injury is related to a previous ankle injury that ESS asserts plaintiff intentionally concealed. 5 1 R. Doc. 40 . See R. Doc. 40 -1. 3 See R. Docs. 42 & 48 . 4 R. Docs. 50 & 51. 5 See R. Docs. 42 at 3 & 48 at 2 (plaintiff’s request for additional tim e for discovery); see also R. Doc. 40 -1 at 13 (defendant’s argum en t regardin g intentional concealm ent). 2 1 Dockets.Justia.com In the present case, the deadlin e for discovery is Septem ber 13, 20 16, and the deadline for pretrial m otions is on e week later. 6 Rule 56(d) perm its a Court to order further discovery upon a showing by the nonm oving party that, “for specified reason s, it cannot present facts essential to justify its opposition.”7 The Fifth Circuit has stated that a district court has broad discretion over discovery m atters; however, should liberally grant requests for additional discovery where the nonm ovant has shown “(1) why additional discovery is necessary and (2) how the additional discovery will likely create a genuine issue of m aterial fact.”8 Plaintiff contends that a deposition of Dr. Bostick “is necessary to the issue of whether or not there is a causal link between the prior and current injury.”9 Plaintiff contends Dr. Bostick can com pare pre- and post-incident radiographic im ages and give an opin ion as to whether plaintiff’s two ankle injuries are related. 10 Plaintiff represents that he is trying to schedule a deposition of Dr. Bostick. 11 ESS’ reply does not address plaintiff’s contentions regarding the need to depose Dr. Bostick. 12 Given the liberal policy favoring discovery in instances such as this, the am ple am ount of tim e rem aining before the passin g of the discovery deadline, and plaintiff’s specified argum ent as to the exact discovery n eeded for plaintiff to present its argum ents against ESS’ m otion for sum m ary judgm ent, the Court finds it appropriate to defer its 6 R. Doc. 41. F ED. R. CIV. P. 56(d). 8 Danos v. Union Carbide Corp., 541 Fed. Appx. 464, 467 (5th Cir. 20 13) (citin g Stearns Airport Equip. Co. v. FM C Corp., 170 F.3d 518, 534 (5th Cir. 1999)) (in ternal quotation om itted). 9 R. Doc. 42 at 3. 10 Id. at 6. 11 Id. at 3. 12 R. Doc. 51. 7 2 consideration of ESS’ m otion. However, the Court will not perm it plaintiff to delay in scheduling the deposition of Dr. Bostick. Accordingly, IT IS ORD ERED that ESS’ m otion for sum m ary judgm ent is D EN IED W ITH OU T PREJU D ICE. The Clerk of Court m ay m ark R. Doc. 40 as no longer pending; IT IS FU RTH ER ORD ERED that counsel for the parties work in good faith to schedule a deposition of Dr. Bostick, to take place no later than W e d n e s d a y, Ju n e 1, 2 0 16 . The deadline for plaintiff to depose Dr. Bostick will not be extended, except for good cause shown. As soon as the deposition of Dr. Bostick has been taken and before the deadline for pretrial m otions has passed, ESS m ay re-urge its m otion for sum m ary judgm ent by filing a supplem ental m em orandum in support of its m otion (R. Doc. 40 ). Upon the filing of such a supplem ental m em orandum by ESS, the Clerk of Court shall m ark R. Doc. 40 as awaiting disposition. Plaintiff shall have ten calendar days to reply to such a supplem ental m em orandum by ESS, at which point the re-urged m otion for sum m ary judgm ent will go under subm ission on the briefs and without oral argum ent. N e w Orle an s , Lo u is ian a, th is 2 8 th d ay o f Ap ril, 2 0 16 . __________ __________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 3

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