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Russell v. Anderson

United States District Court, D. Nebraska

August 1, 2018

DAVID T. RUSSELL, Plaintiff,
v.
EDWARD R. ANDERSON, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This is 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 . . . .” (Id.)

         I. RULE 56(d) REQUEST

         Defendant 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.)

         Under 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).

         In 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. 56(d).

         When a 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)[1] 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”).

         II. MERITS OF MOTION FOR PARTIAL SUMMARY JUDGMENT

         A. Undisputed Material Facts

         These are the properly-referenced facts the parties agree are undisputed and are therefore considered admitted under our Local Rules.[2] See NECivR 56.1.

         1. On 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 Defendant.

         2. At the time and place of the collision, Plaintiff was driving his motorcycle on the ...


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