MOTION REQUESTING THE COURT TO DENY OR HOLD IN ABEYANCE PLAINTIFFS MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56(b)
TO THE HONORABLE COURT: COMES NOW, defendants Hon. Alejandro Garca Padilla, Ana Rius, Armendariz, Melba Acosta Febo, and Wanda Llovet Daz, in their official capacity, without submitting to this Honorable Courts Jurisdiction, and through the undersigned attorney, respectfully allege and pray as follows: INTRODUCTION On September 15 th , 2014, plaintiffs filed a Motion for Summary Judgment [Dkt. No. 43], a Memorandum in support of Motion for Summary Judgment [Dkt. 44], and a Memorandum in Opposition to Motion to Dismiss [Dkt. No. 45]. Plaintiffs include as evidence a number of documents, which include sworn statements by the plaintiffs, which are being filed to prove the truth of the matter. On September 25 th , 2014, the appearing defendants filed a Motion for Leave to file Reply and a Motion for extension of time of fifteen (15) days to file said Reply [Dkt. No. 47]. Case 3:14-cv-01253-PG Document 48 Filed 09/29/14 Page 1 of 5 2 Also, pending before the Court are a Motion to Intervene filed by Capellanes Internacionales Cristianos Len de Jud, Inc. [Dkt. No. 32], and a Memorandum in Opposition to Motion to Intervene [Dkt. No. 46]. Being that Defendants Motion to Dismiss is still pending, and that the Honorable Court is considering the Motion to Intervene filed by Capellanes Internacionales Cristianos Len de Jud, Inc., the discovery in this case has not started. Therefore, the Defendants are not in a position to effectively file their Objections and any and all evidence with which to oppose Plaintiffs Statement of Uncontested facts. The appearing defendants respectfully contend that expecting them to file an Opposition to Plaintiffs Motion for Summary Judgment in such a premature stage of the proceedings lacerates their due process rights. RULE 56(d) STANDARD Fed.R.Civ. P. 56(d) provides: (d) When Facts Are Unavailable to the Nonmovant
If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, 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 appropriate order.
Rule 56(d) serves as the safety value designed to abate hasty swing of the summary judgment axe. Rivera-Torres v. Rey-Hernndez, 502 F.3d 7, 10-11 (1 st Cir. 2007). The procedure created by Rule 56(d) serves a valuable purpose in summary judgment practice; it is the vehicle through which diligent litigants are assured a pre-ruling opportunity for fair discovery. Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 860 (1 st Cir. 2008). A party seeking Rule 56(d) relief must make that request specifically, for example by Case 3:14-cv-01253-PG Document 48 Filed 09/29/14 Page 2 of 5 3 plainly asking the trial court to deny the pending motion or to defer it until discovery is completed. Vlez v. Awning Windows, Inc., 375 F.3d 35, 40 (1 st Cir. 2004). Although relief under this Rule is often and liberally granted, it does not come automatically. Before the courts will postpone a summary judgment ruling pending further discovery, the courts will generally require a Rule 56(d) movant to make essentially three showings: (1) a description of the particular discovery the movants intend to seek; (2) an explanation showing how that discovery would preclude the entry of summary judgment; and (3) a statement justifying why this discovery had not been or could have not been obtained earlier. Mir-Yepez v. Banco Popular de Puerto Rico, 560 F.3d 14, 16 (1 st Cir. 2009). Some courts have held that a postponement in entering summary judgment may still be appropriate, even in the absence of a Rule 56(d) affidavit or declaration, where the nonmoving party adequately notifies the trial court that summary judgment is premature and that additional discovery is necessary, and where the nonmoving party-through no fault- has had little or no opportunity for discovery. Nader v. Blair, 549 F.3d 953, 961 (4 th Cir. 2008); Harrods Ltd. V. Sixty Internet Domain Names, 302 F.3d 214, 244 (4 th Cir. 2002). When a summary judgment motion is filed very early in the litigation, before a realistic opportunity for discovery, courts generally grant Rule 56(d) postponements freely. Burlington Northern Santa Fe R. Co. v. Assiniboine and Sioux Tribes of Fort Oeck Reservation, 323 F.3d 767, 773-74 (9 th Cir. 2003). In such cases, summary judgment should be refused as a matter of course. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). With such early filed motions, the courts recognize that the Rule 56(d) affiant or declarant mat not be capable of framing a postponement request with great specificity. Burlington, 323 F.3d at 773-74 (noting that affiant cannot be expected to frame motion with Case 3:14-cv-01253-PG Document 48 Filed 09/29/14 Page 3 of 5 4 great specificity as to nature of discovery likely to develop useful information because ground for such specificity has not yet been laid). DISCUSSION The instant case is in its early stages, meaning the consideration of Motions to Dismiss and oppositions, and in this case a Reply yet to be filed, to be followed by a Sur Reply by the plaintiffs. At this stage, discovery has not started. Yet plaintiffs filed a Motion for Summary Judgment with all the evidence they have at hand, and without the defendants having the opportunity to conduct the discovery that they deem necessary after the controversies to be attended to at the Summary Judgment stage be delineated in an Opinion and Order on the Motion to Dismiss. At this stage of the proceedings, Plaintiffs Motion for Summary Judgment is premature. Being that discovery has not started in this case, the requirements of Rule 56(d) as to the showings defendants must make when requesting relief under such Rule do not apply in this case, as the Rule specifically refers to further discovery, whereas discovery in this case has not started yet. The appearing defendants have a right to due process in this litigation, and as such they hereby request the relief provided by Fed.R.Civ.P. 56(b) as to the Motion for Summary Judgment filed by the plaintiffs. Specifically, Defendants seek this Honorable Court to DENY Plaintiffs Motion for Summary Judgment as premature, or in the alternative to HOLD IN ABEYANCE said Motion for Summary Judgment until the Honorable Court rules upon Defendants Motion to Dismiss, the Defendants make the discovery they understand necessary within the time table set by the Honorable Court, and they file their Opposition to Plaintiffs Motion for Summary Judgment. Case 3:14-cv-01253-PG Document 48 Filed 09/29/14 Page 4 of 5 5 WHEREFORE, it is respectfully requested that this Honorable Court DENY Plaintiffs Motion for Summary Judgment as premature, or in the alternative to HOLD IN ABEYANCE said Motion for Summary Judgment until the Honorable Court rules upon Defendants Motion to Dismiss, the Defendants make the discovery they understand necessary within the time table set by the Honorable Court, and they file their Opposition to Plaintiffs Motion for Summary Judgment. I HEREBY CERTIFY that on this same date, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send an electronic copy to all attorneys to their address of record. RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this 29 th day of September 2014. CESAR MIRANDA RODRIGUEZ Secretary of Justice
MARTA ELISA GONZALEZ Y. Deputy Secretary In Charge of Civil Matters
JANITZA M. GARCIA MARRERO U.S.D.C.-P.R. Bar No. 222603 Federal Litigation Division jgarcia@justicia.pr.gov
S/ Idza Daz Rivera IDZA DIAZ RIVERA U.S.D.C. NO. 223404 Federal Litigation Division Department of Justice P.O. Box 9020192 San Juan, P.R., 00902-0192. Tel. (787) 721-2900, Ext. 2606 Fax (787) 723-9188 idiaz@justicia.pr.gov Case 3:14-cv-01253-PG Document 48 Filed 09/29/14 Page 5 of 5