United States District Court, E.D. California
DANNY M. COSTON, Plaintiff,
J.K. YU, et al., Defendants.
ORDER (1) VACATING ORDER TO SHOW CAUSE; AND (2)
GRANTING DEFENDANT'S RULE 56(D) REQUEST (ECF NOS. 44,
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 42 U.S.C.
§ 1983. This matter proceeds against Defendant Dr. J.K.
Yu on an Eighth Amendment medical indifference claim. On
February 27, 2017, Plaintiff filed a motion for summary
judgment. Now pending is Defendant's second request to
reopen discovery pursuant to Federal Rule of Civil Procedure
56(d) ‘provides a device for litigants to avoid summary
judgment when they have not had sufficient time to develop
affirmative evidence.'” Atigeo LLC v. Offshore
Ltd., 2014 WL 1494062, at *3 (W.D. Wash. Apr. 16, 2014)
(quoting United States v. Kitsap Physicians Serv.,
314 F.3d 995, 1000 (9th Cir. 2002)). Federal Rule of Civil
Procedure 56(d) provides, “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the
court may” defer considering the motion, deny the
motion, allow time to obtain affidavits or declarations to
take discovery, or “issue any other appropriate
order.” Fed.R.Civ.P. 56(d). Rule 56(d) requires the
nonmovant to show “(1) it has set forth in affidavit
form specific facts it hopes to elicit from further
discovery; (2) the facts sought exist; and (3) the
sought-after facts are essential to oppose summary
judgment.” Family Home & Fin. Ctr., Inc. v.
Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir.
2008) (holding that the district court did not abuse its
discretion in denying a continuance where the facts sought
through further discovery were only “generically
relevant” and the nonmoving party failed to show how
the evidence was “essential” to oppose summary
judgment). The party requesting a continuance must explain
how the specific facts that it seeks would preclude summary
judgment. Tatum v. City & Cty. of S.F., 441 F.3d
1090, 1100-01 (9th Cir. 2006) (citing California v.
Campbell, 138 F.3d 772, 779 (9th Cir.
1998)). The Ninth Circuit's general rule is
that “[a] continuance of a motion for summary judgment
for purposes of discovery should be granted almost as a
matter of course unless the non-moving party has not
diligently pursued discovery of the evidence.”
Atigeo, 2014 WL 1494062, at *3.
did not conduct discovery in this case during the eight-month
discovery period which commenced on April 19, 2016 and
concluded on December 19, 2016. (ECF No. 23.) Defendant's
first two requests to reopen discovery were denied because he
did not demonstrate diligence during that lengthy period.
(ECF Nos. 35, 43.)
most recent motion, Defendant for the first time proffers a
sufficient explanation for his failure to conduct discovery.
Defense counsel has submitted numerous exhibits documenting
the untimely passing of a close colleague on April 15, 2016,
four days before the Court's Discovery and Scheduling
Order issued. Further it appears that defense counsel did in
fact draft written discovery to propound on Plaintiff and
forwarded it to his legal secretary on April 22, 2016, for
service. This discovery was never served on Plaintiff. Staff
failed to mail it. The filed declaration of the staff member
acknowledges the failure and attributes it to stress
following the colleague's death. For these reasons, the
undersigned now finds that Defendant has in fact shown
diligence. Defendant also properly identified the discovery
that he seeks to use in opposing Plaintiff's pending
motion, namely, Plaintiff's medical records and responses
to the aforementioned written discovery. Defendant's
request will therefore be granted.
IT IS HEREBY ORDERED that:
Defendant's Rule 56(d) request (ECF No. 46) is GRANTED;
May 5, 2017, Order to Show Cause (ECF No. 44) is VACATED;
Defendant is hereby granted an additional sixty (60) days
from the date of this Order in which to conduct discovery.
Plaintiff's responses to the written discovery requests
shall be due within thirty days from the date of their
Defendant shall then have fourteen days following the close
of the discovery period in which to respond to
Plaintiff's motion for summary judgment. Plaintiff's
reply brief shall be due ten days thereafter.
 On December 1, 2010, Federal Rule of
Civil Procedure 56(f) was renumbered and is now Federal Rule
of Civil Procedure 56(d). The advisory committee's notes
to Rule 56 regarding the 2010 amendments state that
“[s]ubdivision (d) carries forward without substantial
change the provisions of former subdivision (f).”
Fed.R.Civ.P. 56 advisory committee's notes. Thus, the
cited authorities ...