Fucich Contracting, Inc. v. Shread-Kuyrkendall and Associates, Incorporated et al, No. 2:2018cv02885 - Document 61 (E.D. La. 2018)

Court Description: ORDER AND REASONS - IT IS ORDERED that Defendant St. Bernard Parish's 53 motion to continue and request for additional discovery be and hereby is GRANTED. Plaintiff Fucich Contracting, Inc.'s 51 motion for partial summary judgment shal l be submitted on Wednesday, October 31, 2018 to allow time for additional discovery. IT IS FURTHER ORDERED that Defendant St. Bernard Parish's opposition to Plaintiff FCI's motion for partial summary judgment be filed by no later than Tuesday, October 23, 2018. IT IS FURTHER ORDERED that Defendant St. Bernard Parish's 54 motion to expedite be and hereby is DENIED AS MOOT. Signed by Judge Susie Morgan. (bwn)

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Fucich Contracting, Inc. v. Shread-Kuyrkendall and Associates, Incorporated et al Doc. 61 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A FU CICH CON TRACTIN G, IN C., Plain tiff CIVIL ACTION VERSU S N O. 18 -2 8 8 5 SH READ -KU YRKEN D ALL AN D ASSOCIATES, IN CORPORATED , ET AL., D e fe n d an ts SECTION : “E”( 4 ) ORD ER AN D REAS ON S On August 14, 2018, Plaintiff Fucich Contracting Inc. (“FCI”) filed a motion for partial summary judgment seeking a declaration of rights and obligations and a judgment on Defendant St. Bernard Parish’s counterclaims against it. 1 On August 16, 20 18, Defendant St. Bernard Parish m oved to continue the subm ission date for Plaintiff’s m otion. 2 It also moved to expedite consideration of its motion to continue. 3 In its motion to continue, St. Bernard Parish requests the Court defer consideration of Defendants’ motion to allow time to conduct depositions. 4 The Court will construe St. Bernard Parish’s motion to continue as an opposition to Plaintiff FCI’s motion for partial summary judgment and a request for additional discovery under Rule 56(d) of the Federal Rules of Civil Procedure. On August 17, 2018, Plaintiffs filed a memorandum opposing St. Bernard Parish’s request. 5 For the reasons that follow, the Court GRAN TS St. Bernard Parish’s motion to continue and request for additional discovery, 6 DENIES AS MOOT St. Bernard Parish’s motion to expedite 1 R. Doc. 51. R. Doc. 53. 3 R. Doc. 54. On the same day, Defendants Shread-Kuyrkendall and Associates, Inc. (“SKA”) and XL Special Insurance Company (“XL”) also filed a motion to continue the submission date of Plaintiff’s motion and a motion to expedite consideration of their motion to continue. R. Doc. 56. The motion submitted by SKA and XL incorporates St. Bernard Parish’s arguments by reference. Id. This motion is DEN IED AS MOOT. 4 R. Doc. 53 at 4– 5. 5 R. Doc. 57. 6 R. Doc. 53. 2 1 Dockets.Justia.com consideration of its motion to continue, 7 and allows St. Bernard Parish to conduct additional discovery prior to the submission of Plaintiff’s motion for partial summary judgment. DISCUSSION Under Rule 56(d) of the Federal Rules of Civil Procedure, 8 if a party opposing a m otion for sum m ary judgm ent shows, by way of affidavit or declaration, that for som e specific reason it cannot present facts essential to justify its opposition, the Court m ay defer con sideration of the sum m ary judgm en t m otion, deny it, allow tim e for the nonm oving party to obtain affidavits or declarations or to take discovery, or issue any other appropriate order. 9 The Rule is “designed to safeguard against a prem ature or im provident grant of sum m ary judgm ent.”10 “[T]o justify a continuance, the [Rule 56(d)] motion m ust dem onstrate (1) why the m ovant needs additional discovery, and (2) how the additional discovery will likely create a genuine issue of m aterial fact.”11 In requesting a Rule 56(d) m otion, a plaintiff “m ay not sim ply rely on vague assertions that additional discovery will produce needed, but unspecified, facts.”12 Rather, the plaintiff “m ust set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable tim e fram e, probably exist and in dicate how the em ergent facts, if adduced, will influence the outcom e of the 7 R. Doc. 54. On Decem ber 1, 20 10 , the provisions of form er subdivision (f) of Rule 56 were carried forward, without substantial change, to subdivision (d). Accordingly, while case law prior to this chan ge references Rule 56(f) instead of Rule 56(d), those pre-20 10 cases still hold precedential and persuasive value and are fully applicable to this case. 9 F ED . R. CIV. P. 56(d). 10 W ashington v. Allstate Ins. Co., 90 1 F.2d 1281, 128 5 (5th Cir. 1990 ). 11 Stearns Airport Equip. Co. v. FM C Corp., 170 F.3d 518 , 534– 35 (5th Cir. 1999) (citing Krim v . BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993)). 12 Raby v . Livingston, 60 0 F.3d 552, 561 (5th Cir. 20 10 ) (internal quotation m arks and citation om itted). 8 2 pending sum m ary judgm ent m otion.”13 “Rule 56(d) m otions for additional discovery are broadly favored and should be liberally granted.”14 The Court finds Defendant St. Bernard Parish has justified its request for a continuance to allow additional tim e to conduct discovery. As it points out in its m otion, FCI filed this action on March 19, 20 18, 15 less than five m onths before it filed a partial sum m ary judgm ent m otion on August 14, 20 18. 16 The Court has not entered a scheduling order in this case, and a scheduling conferen ce is currently scheduled for Septem ber 6, 20 18 . 17 Moreover, St. Bernard Parish has set forth the specific reasons it cannot present at this tim e facts essential to justify its opposition. 18 The Court finds Defendant St. Bernard Parish has dem onstrated sufficiently: (1) that it needs additional discovery to oppose Plaintiff’s m otion for partial sum m ary judgm ent and (2) how the additional discovery will likely create a genuin e issue of m aterial fact. 19 Accordingly; CON CLU SION IT IS ORD ERED that Defendant St. Bernard Parish’s m otion to continue and request for additional discovery be and hereby is GRAN TED . 20 Plaintiff Fucich Contracting, Inc.’s m otion for partial sum m ary judgm ent shall be subm itted on W e d n e s d ay, Octo be r 3 1, 2 0 18 to allow tim e for additional discovery. 21 13 Id. (internal quotation m arks and citation om itted). Am . Fam ily Life Assur. Co. v. Biles, 714 F.3d 8 87, 894 (5th Cir. 20 13). 15 R. Doc. 1. 16 R. Doc. 51. 17 R. Doc. 41. 18 R. Doc. 53 at 3– 5. 19 See Stearns Airport Equip. Co., 170 F.3d at 534– 35. 20 R. Doc. 53. 21 R. Doc. 51. 14 3 IT IS FU RTH ER ORD ERED that Defendant St. Bernard Parish’s opposition to Plaintiff FCI’s m otion for partial summary judgment be filed by no later than Tu e s day, Octo be r 2 3, 2 0 18 . IT IS FURTH ER ORDERED that Defendant St. Bernard Parish’s motion to expedite be and hereby is DENIED AS MOOT. 22 N e w Orle a n s , Lo u is ian a, th is 2 1s t d ay o f Au gu s t, 2 0 18 . ___________ _______ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 22 R. Doc. 54. 4

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