United States District Court, D. Nebraska
DAVID T. RUSSELL, Plaintiff,
EDWARD R. ANDERSON, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
a diversity negligence action arising from a collision
between Defendant's car and Plaintiff's motorcycle
after Defendant's car crossed the center line of the
highway on which both vehicles were traveling from opposite
directions. Plaintiff moves for partial summary judgment on
three issues: “(1) defendant was negligent in crossing
the centerline and causing the collision, (2) Plaintiff did
not fail to mitigate his damages, and (3) Plaintiff was not
negligent in contributing to cause the collision.”
(Filing No. 31.) Plaintiff requests that
“[t]he issue of damages, including causation of
damages, will remain for jury trial . . . .”
RULE 56(d) REQUEST
opposes Plaintiff's Motion under Fed. R. Civ. P.
56(d) because “Defendant has not had time for
adequate discovery, and Plaintiff has been noncompliant with
Defendant's multiple requests for discovery responses.
Defendant needs time to gather facts essential to justify
opposition to this Motion.” (Filing No. 37 at
CM/ECF p. 1.) Defendant states that “Plaintiff
served discovery requests as recently as March 23, 2018, and
Defendant has not yet received complete full and complete
responses from Plaintiff, despite repeated attempts to
resolve differences.” (Id.) These discovery
disputes are apparently ongoing, as Defendant filed a Motion
to Compel (Filing No. 70) just last week.
Alternatively, Defendant argues that there are questions of
material fact as to Defendant's negligence,
Plaintiff's failure to mitigate damages, and
Plaintiff's contributory negligence. (Filing No. 37
at CM/ECF p. 2.)
Fed.R.Civ.P. 56(d), a party opposing summary judgment may
“show by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition.” Fed.R.Civ.P. 56(d). If this showing is
made, “the court may: (1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
appropriate order.” Id. In order to obtain
additional discovery under Rule 56(d), the nonmovant must
file an affidavit explaining “(1) what facts are sought
and how they are to be obtained; (2) how these facts are
reasonably expected to raise a genuine issue of material
fact; (3) what efforts the affiant has made to obtain them;
and (4) why the affiant's efforts were
unsuccessful.” Davis v. Anthony, Inc., 886
F.3d 674, 679 (8th Cir. 2018) (quoting Johnson v. United
States, 534 F.3d 958, 965 (8th Cir. 2008)); see also
Jackson v. Riebold, 815 F.3d 1114, 1121 (8th Cir. 2016)
(nonmovant “must file an affidavit affirmatively
demonstrating . . . how postponement of a ruling on the
motion [for summary judgment] will enable him, by discovery
or other means, to rebut the movant's showing of the
absence of a genuine issue of fact”) (internal
quotations and citations omitted).
Specific facts sought must be identified. Mere speculation
that there is some relevant evidence not yet discovered will
never suffice. The movant must identify documents or specific
facts that he believes would contradict the opposing
side's evidence. Thus, the movant must show what
additional evidence would prove his claim meritorious.
Jackson, 815 F.3d at 1121 (internal quotations,
citations, and bracketing omitted).
support of Defendant's opposition to Plaintiff's
Motion for Partial Summary Judgment, Defendant's counsel
has filed an affidavit listing the dates on which
Defendant's counsel asked Plaintiff's counsel to
remedy his “insufficient” and
“outstanding” discovery responses and
Plaintiff's counsel's failure to do so. (Filing No.
37-2 at CM/ECF p. 2.) Defendant's affidavit
fails to specify the nature of the missing discovery, other
than it “includ[es] Plaintiff's medical history
prior to the accident.” (Id.) The affidavit
does not describe what specific facts are sought, how those
facts would be relevant, and how the sought-after facts would
reasonably raise a genuine issue of material fact regarding
the issues upon which Plaintiff moves for partial summary
judgment-Defendant's negligence, Plaintiff's failure
to mitigate damages, and Plaintiff's contributory
negligence. In short, Defendant has not specified how the
desired evidence is “essential to justify [his]
opposition” to Plaintiff's Motion, and has
therefore failed to fulfill the requirements of Fed.R.Civ.P.
party fails to carry its burden under Rule 56(d),
“postponement of a ruling on a motion for summary
judgment is unjustified.” Humphreys v. Roche
Biomed. Labs., Inc., 990 F.2d 1078, 1081 (8th Cir.
1993); see also Stanback v. Best Diversified Prods.,
Inc., 180 F.3d 903, 912 (8th Cir. 1999).
Therefore, Defendant's request that the court delay its
decision on Plaintiff's Motion for Partial Summary
Judgment under Fed.R.Civ.P. 56(d) will be denied, and I will
turn to the merits of Plaintiff's Motion. Chambers v.
Travelers Companies, Inc., 668 F.3d 559, 568 (8th Cir.
2012) (district court did not abuse its discretion in denying
motion to continue summary judgment proceedings under
Fed.R.Civ.P. 56(f) when motion to continue was filed five
months after discovery expired, affidavit broadly requested
“all relevant information and documents not timely
produced and/or improperly withheld, ” and movant
failed to “identify specific facts that further
discovery might uncover and show how those facts would rebut
[the opposing party's] showing of the absence of genuine
issues of material fact”); Marksmeier v.
Davie, 622 F.3d 896, 903 (8th Cir. 2010) (district court
did not abuse its discretion in denying Rule 56(f) motion to
postpone summary judgment decision when supporting affidavit
did not describe facts essential to justify movant's
opposition to summary judgment motion, but only stated that
“discovery in the form of depositions of at least the
Defendants is necessary to test the veracity of and refute
the allegations made in the affidavits of Defendant Delmont
and Defendant Davie in support of their respective Motions
for Summary Judgment”).
MERITS OF MOTION FOR PARTIAL SUMMARY JUDGMENT
Undisputed Material Facts
are the properly-referenced facts the parties agree are
undisputed and are therefore considered admitted under our
Local Rules. See NECivR 56.1.
August 9, 2013, Defendant was driving his automobile
northbound on Highway 281 in Greeley County, Nebraska, while
Plaintiff was driving his motorcycle southbound. At that time
and place, there was a collision between Plaintiff and
the time and place of the collision, Plaintiff was driving
his motorcycle on the ...