The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER DENYING MOTION TO ) DISMISS, DENYING REQUEST FOR CONTINUANCE, AND GRANTING MOTION FOR SUMMARY JUDGMENT #446; #R-867; #0015,*fn1
Defendant New Balance Athletic Shoe, Inc. dba New Balance #0015 ("Defendant") moves for dismissal of Plaintiff's First Amended Complaint ("FAC"), arguing it "fails to satisfy the [standing] pleading requirements" applicable to lawsuits under the Americans with Disabilities Act ("ADA") "set forth by the Ninth Circuit in Chapman v. Pier 1 Imports (U.S.) Inc.," 631 F.3d 939 (9th Cir. 2011); and fails to state his claims with the specificity required. (ECF No. 71; Mot. 1:10- 11.) However, Plaintiff's claims are sufficient to withstand the dismissal motion. Therefore, Defendant's dismissal motion is DENIED.
Defendant moves in the alternative for summary judgment on all claims against it. (Mot. 4:16-18.) Plaintiff failed to respond to this motion with an opposition or statement of non-opposition as required by Local Rule 230(c); instead, Plaintiff filed a request for continuance of the motion. (ECF No. 77.) This continuance request is governed by Federal Rule of Civil Procedure ("Rule") 56(d).
I. REQUEST FOR CONTINUANCE
Plaintiff's continuance request is based solely on his counsel's declaration in which his counsel declares he has "not had an opportunity to obtain . . . essential evidence[; that] this evidence is necessary to oppose [Defendant's] motion[;] and . . . the instant lawsuit is in the early stages of litigation[.]" (Pl.'s Appl. for Continuance, Decl. of Hubbard 2:19-21.) Specifically, Plaintiff's counsel declares:
Before I can respond to [the] motion for summary judgment, . . . I will need to conduct the following discovery, and obtain the following essential facts:
a. Inspect New Balance's facility;
b. Identify and document the barriers alleged in [the] plaintiff's complaint;
c. Obtain expert testimony on those barriers; and
d. Depose Russell Shirley and Cesar Rodriguez, whose testimony lays the foundation for the defendant's motion.
Id. ¶ 3. Defendant counters "Plaintiff has had ample time to conduct discovery and has no genuine excuse." (Def.'s Opp'n to Continuance 2:2.)
To obtain a continuance under Rule 56(d) the movants "must show (1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are 'essential' to resist the summary judgment motion." State of Cal., on Behalf of California Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). Moreover, the movants "must make clear what information is sought and how it would preclude summary judgment." Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (citation and internal quotation marks omitted). "[D]enial of a Rule 56([d]) application is proper where it is clear that the evidence sought is almost certainly nonexistent or is the object of pure speculation."
Campbell, 138 F.3d at 779-80 (citation and internal quotation marks omitted). In addition,"[t]he burden is on the party seeking additional discovery to proffer sufficient facts to" satisfy the requirements of Rule 56(d). Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th Cir. 1996) (citation omitted). Further, a Rule 56(d) motion will not be granted "if [the party requesting a continuance] fails to pursue discovery diligently before summary judgment." Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Here, the evidence Plaintiff seeks "is almost certainly . . the object of pure speculation." Campbell, 138 F.3d at 780. Plaintiff's continuance request is based solely on his assumption and/or "mere hope" that Plaintiff will discover evidence sufficient to defeat Defendant's motion. Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978). Therefore, Plaintiff has not shown he is entitled to a continuance for the purpose of conducting this discovery.
Further, Plaintiff has not shown that he diligently pursued the discovery he seeks to conduct. Plaintiff filed his Complaint in this action on May 29, 2010. (ECF No. 1.) The parties filed a joint status ...