Opinion
Cause No. IP00-0018-C-T/G
October 31, 2000
ENTRY ON PLAINTIFF EXECUTIVE BUILDERS, INC.'S MOTION FOR LEAVE TO TAKE OMITTED DEPOSITION OF WILLIAM GROSS
Plaintiffs, Executive Builders, Inc. and Robert L. Montgomery, brought this action against Defendant Motorists Insurance Companies ("Motorists"), seeking a declaration that Motorists has a duty under certain insurance policies issued to Executive Builders to defend on appeal and indemnify them for a punitive damage judgment against Mr. Montgomery entered in state court in favor of G. Raymond Trisler. Plaintiffs also brought a claim for compensatory damages for an alleged deceitful defense of that punitive damage claim. Motorists argues that the punitive damage award is not covered under the insurance policies issued and it has no duty to prosecute the appeal of that award.
On April 28, 2000, Plaintiffs filed a motion for summary judgment with a supporting brief. On May 1, 2000, Plaintiffs filed a Statement of Material Facts and submitted evidentiary materials in support of their motion. On July 7, 2000, Motorists filed a cross-motion for summary judgment, a brief in response to Plaintiffs' summary judgment motion and in support of its own cross-motion as well as evidentiary materials. On August 7, 2000, Plaintiffs filed an answer brief in opposition to Motorists' summary judgment motion.
The summary judgment motions are fully briefed, and discovery has been closed since October 3, 2000. (See Case Management Plan, § IV at 9.)
On October 27, 2000, Plaintiff Executive Builders filed, pursuant to Rule 56(e) and (f) of the Federal Rules of Civil Procedure, a Motion For Leave To Take Omitted Deposition Of William Gross. Executive Builders states that the cross-examination of Mr. Gross and the Motorists' file will provide material facts that will establish that Motorists breached its non-delegable duties to Plaintiff in bad faith. Executive Builders also states that at the hearing on G. Raymond Trisler's motion to intervene, held on October 26, 2000, "it was pointed out to Executive Builder's (sic) counsel . . . that he had omitted to cross-examine and depose the Custodian of the files maintained in the regular course of Motorists business, necessary to adequately oppose Motorists (sic) Motion for Summary Judgment." (Mot. Leave Take Omitted Dep. at 2, ¶ 3.)
Pursuant to Rule 56(e) of the Federal Rules of Civil Procedure, when a motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). If the party opposing the motion is unable to respond as provided in Rule 56(e), then it may seek a continuance pursuant to Rule 56(f), which provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's oppositon, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
FED. R. CIV. P. 56(f). Thus, Rule 56(f) allows a summary judgment motion to be continued if the nonmovant has not had an opportunity to take adequate discovery. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Farmer v. Brennan, 81 F.3d 1444, 1449 (7th Cir. 1996).
The Seventh Circuit requires "a party seeking the protection of Rule 56(f) . . . [to] make a good faith showing that it cannot respond to the movant's affidavits." United States v. All Assets Equip. of West Side Bldg. Corp., 58 F.3d 1181, 1190 (7th Cir. 1995). This "requires the filing of an affidavit stating the reasons for a claimant's inability to submit the necessary material to the court." Id.; see also Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994) ("the failure to file an affidavit under Rule 56(f) is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.") (internal citations omitted). The party seeking discovery also must identify the material facts which it anticipates discovering. See Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000); All Assets Equip., 58 F.3d at 1190 (denying Rule 56(f) request in part because it "lacked specificity concerning what information they [the nonmovant] hoped to uncover and how it would refute the government's [movant's] showing of probable cause.")
Executive Builders' motion fails to satisfy these requirements in several respects.
First, Executive Builders did not file an affidavit. The motion itself is unsworn and, therefore, does not constitute an affidavit. See, e.g., Cacevic, 226 F.3d at 488 (unsworn memorandum does not constitute an affidavit); Cmte. for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992) ("Advocacy by counsel does not suffice for evidence or fact in the Rule 56(f) context."). Nor can the motion be substituted for an affidavit as it does not subject counsel to penalties of perjury. See 28 U.S.C. § 1746 (an unsworn, written declaration or statement may be substituted for a sworn affidavit if it subjects the declarant to penalties of perjury). Second, the only reason given as to why Executive Builders could not have taken Mr. Gross's deposition is that counsel had omitted it. There is no showing that Mr. Gross was unavailable for deposition or could not have been deposed by Executive Builders' counsel at a prior time.
Furthermore, Executive Builders has not identified the material facts it hopes to uncover. The motion merely indicates that the cross-examination of Mr. Gross and Motorists' file "are material facts that will establish beyond dispute that Motorists intentionally and knowingly breached its non-delegable duties to Plaintiffs in bad faith." (Mot. at 1-2.) From this the court understands Executive Builders to mean that the deposition of Mr. Gross and the insurance file will uncover material facts; the deposition and insurance file themselves cannot be "material facts." Nor is the assertion that Motorists intentionally and knowingly breached a non-delegable duty to Plaintiffs in bad faith a material fact. Rather, it is a legal conclusion. Without an identification of the material facts Executive Builders anticipates discovery, the court cannot determine whether the proposed discovery would affect the outcome of the pending cross-motions for summary judgment. See DeGrassi v. City of Glendora, 207 F.3d 636, 643 (9th Cir. 2000) (no abuse of discretion to deny Rule 56(f) request for discovery which would not affect resolution of legal issue presented on summary judgment).
Moreover, Executive Builders and Mr. Montgomery themselves initiated the summary judgment briefing by first filing their own summary judgment motion, and they have responded to Motorists' cross-motion for summary judgment. Nothing in their response to the latter motion suggests any need for additional discovery. Not surprisingly, nothing in Plaintiffs' own motion for summary judgment motion hints at a need for discovery either. By responding to Motorists' cross-motion for summary judgment and by first filing its own summary judgment motion, Executive Builders' actions have demonstrated its ability to respond to Motorists' affidavits and other evidentiary submissions.
For all these reasons, Executive Builders' motion for leave to take omitted deposition of William Gross is DENIED.