United States District Court, E.D. California
CITY OF WEST SACRAMENTO, CALIFORNIA; and PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffs,
R AND L BUSINESS MANAGEMENT, a California corporation, f/k/a STOCKTON PLATING, INC., d/b/a CAPITOL PLATING, INC., a/k/a CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., a dissolved California corporation; et al., Defendants.
MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT AND DEFENDANT NICK E. SMITH'S MOTION TO
CONTINUE SUMMARY JUDGMENT
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
City of West Sacramento, California (the “City”)
and the People of the State of California brought this action
against defendants R&L Business Management, et al., to
address toxic levels of soil and groundwater contamination in
the environment within the City. The court now considers
plaintiffs' motion for summary judgment and defendant
Smith's motion to continue plaintiffs' motion under
Federal Rule of Civil Procedure 56(f).
Factual and Procedural Background
court described much of the factual and procedural background
to this lawsuit in its prior orders. (See Docket
Nos. 18, 33, 44, and 63.). The City now moves for partial
summary judgment on its CERCLA,  RCRA,  Gatto Act,
public nuisance, and declaratory relief claims against the
business, R&L Business Management, aka/fka Stockton
Plating, Inc. (“R&L”), and the Estate of Nick
Smith, Deceased (“Smith”). (Pls.' Mot. for
Summ. J. at 2 (Docket No. 95).) The City also seeks partial
summary judgment against John Clark (collectively with
R&L and Smith, “Defendants”) on its CERCLA,
public nuisance, and declaratory relief claims.
(Id.) In turn, Smith moves to continue hearing on
plaintiffs' motion for summary judgment under Federal
Rule of Civil Procedure 56(d) to allow Smith to depose Dr.
Ann Farr. (Decl. of Michael Guasco (“Guasco
Decl.”) (Docket No. 105-1).)
Defendant Smith's Motion for Continuance
district court should continue a summary judgment motion upon
a good faith showing by affidavit that the continuance is
needed to obtain facts essential to preclude summary
judgment.” State of Cal., on Behalf of Cal.
Dep't of Toxic Substances Control v. Campbell, 138
F.3d 772, 779 (9th Cir. 1998) (citing McCormick v. Fund
Am. Cos., Inc., 26 F.3d 869, 885 (9th
Cir.1994)). A party requesting a continuance pursuant
to Rule 56(d) therefore “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
usually employ a “generous approach toward granting
[Rule 56(d)] motions.” Berkeley v. Home Ins.
Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995); see also
Burlington N. Santa Fe R. Co. v. Assiniboine & Sioux
Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th
Cir. 2003). Summary judgment is appropriate “only where
[further] discovery would be ‘fruitless.'”
Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004).
Indeed, 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.”
Wichita Falls Office Assocs. v. Banc One Corp., 978
F.2d 915, 919 n.4 (5th Cir. 1992); see also
Burlington, 323 F.3d at 773.
“the Supreme Court has restated the rule as requiring,
rather than merely permitting, discovery ‘where the
nonmoving party has not had the opportunity to discover
information that is essential to its opposition.'”
Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832,
846 (9th Cir. 2001) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 n. 5, (1986)). The court
therefore keeps in mind that “[b]ecause experts had not
yet been disclosed, ” [defendant Smith] “was
unable to previously depose Dr. Farr.” (Guasco Decl. At
comply with Rule 56(d), defendant must “submit
affidavits setting forth the particular facts expected from
further discovery.” Brae Transp., Inc. v. Coopers
& Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986).
“References in memoranda and declarations to a need for
discovery” do not suffice. Id.
Smith offers the declaration of his attorney, Michael C.
Guasco. Mr. Guasco therein identifies several facts he
expects to discover if given more time, including the source
and bases of the opinions of Dr. Anne Farr. Because defendant
Smith has “attached a detailed sworn declaration from
counsel explaining the need for additional time and setting
forth particular facts expected to be obtained” from
the experts, defendant has satisfied the affidavit
requirement under Rule 56(d). See TMJ Inc., v. Nippon Tr.
Bank, 16 Fed.Appx. 795, 797 (9th Cir. 2001).
Existence of Facts Sought
Rule 56(d), the party requesting a continuance must show that
the facts sought exist. “Denial of a Rule [56(d)]
application is [therefore] proper where it is clear that the
evidence sought is almost certainly nonexistent or is the
object of pure speculation.” Terrell v.
Brewer, 935 F.2d 1015, 1018 (9th Cir.1991).
court finds no reason to believe that the facts sought do not
exist. Dr. Farr presumably relied on specific facts to reach
her conclusions. Defendant ...