The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING PLAINTIFF'S RULE 56(d) MOTION WITHOUT PREJUDICE (Docket No. 41)
ORDER CONTINUING HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT TO MARCH 7, 2012
ORDER PROVIDING RAND NOTICE
On December 29, 2011, Defendant Home Depot U.S.A., Inc. ("Home Depot") filed a motion for summary judgment. (Doc. 35.) The notice of the motion set the hearing on the motion for February 1, 2012. (Doc. 35.) On January 13, 2012, Home Depot renoticed the motion pursuant to the requirements of Rule 230 of the Local Rules for the United States District Court for the Eastern District of California ("Local Rules") and set a new hearing date of February 15, 2012.
On January 20, 2012, Plaintiff filed a motion to continue the hearing on Home Depot's motion for summary judgment. (Doc. 41.) In her request for a continuance, Plaintiff identified February 1, 2012, as the date for the hearing; it appears that Plaintiff had not yet received Home Depot's filing that renoticed the hearing for February 15, 2012. Nonetheless, Plaintiff seeks an unspecified amount of additional time to prepare an opposition to Home Depot's motion. Plaintiff notes that she "feels that she has obtained and will continue to obtain more information to show causation for her pleading. She requests [ ] more time to support (show) her causation of general negligence and premises liability." (Doc. 41, 2:20-25.)
For the reasons set forth below, Plaintiff's motion for a continuance is construed as a motion pursuant to Federal Rule of Civil Procedure 56(d) and is DENIED without prejudice. Plaintiff may refile a Rule 56(d) motion on or before February 1, 2012. To allow time for Plaintiff to renew her Rule 56(d) motion, Home Depot's motion for summary judgment is CONTINUED until March 7, 2012.
Pursuant to Local Rule 230(c), Plaintiff's opposition to Home Depot's motion for summary judgment that is currently set for hearing on February 15, 2012, must be filed on or before February 1, 2012.*fn1 Plaintiff is seeking an unspecified continuance of Home Depot's motion; she asserts she requires more time to obtain additional evidence. The Court notes that, pursuant to the parties' stipulations for continuances of scheduling deadlines (see Docs. 18, 20), the deadlines to obtain discovery evidence, designate expert witnesses, and complete expert discovery have passed. Furthermore, the deadline for the hearing on any dispositive motion, which includes a motion for summary judgment, is set for March 5, 2012. (Doc. 17.) Thus, to obtain a continuance to seek more evidence to support her claim, Plaintiff must make a showing that she is entitled to a continuance pursuant to Federal Rule of Civil Procedure 56(d).
Federal Rule of Civil Procedure 56[(d)]*fn2 provides that if a party opposing summary judgment demonstrates a need for further discovery in order to obtain facts essential to justify the party's opposition, the trial court may deny the motion for summary judgment or continue the hearing to allow for such discovery." Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (internal quotation marks omitted). However, "[i]n making a Rule 56[(d)] motion, a party opposing summary judgment must make clear what information is sought and how it would preclude summary judgment." Id.
Plaintiff's motion for a continuance does not identify the additional information she seeks to obtain, nor does she explain how it will preclude Home Depot's motion for summary judgment. Further, the identified facts or evidence must be of a type that has either already been discovered or is likely to be discovered. In other words, there must be a "basis or factual support for [the] assertions that further discovery would lead to the facts and testimony" described in an affidavit submitted pursuant to Rule 56(d). Margolis, 140 F.3d at 854 ("wild speculation" that facts and testimony sought to be discovered could actually be discovered will not support a continuance or denial of summary judgment motions under Rule 56(d)).
To the extent that Plaintiff's motion for a continuance constitutes a Rule 56(d) motion, it is denied without prejudice. On or before February 1, 2012, Plaintiff may file a renewed Rule 56(d) motion that comports with the requirements as set forth above. If Plaintiff elects to file a renewed Rule 56(d) motion, Home Depot shall have seven (7) days from the date Plaintiff's motion is served to file any opposition to that motion.
Further, the Court continues and resets Home Depot's summary judgment motion to March 7, 2012,*fn3 to allow Plaintiff the time necessary ...