Opinion
CV-98-1977-PHX-ROS (JI)
April 16, 2002
ORDER
MOTION FOR PROTECTIVE ORDER
Under consideration is Defendant's Motion for Protective Order, filed March 4, 2002 (#52-2). Defendant seeks an order in essence staying discovery until after a resolution of the now pending dispositive motions. Plaintiff has responded arguing that the sought after records are required to allow Plaintiff to respond to the dispositive motions. (#55 at 2.) The parties were heard on the motion as part of a discovery conference with the Court on April 16, 2002. Defendants have filed Motions to Dismiss on Counts 1 and 2 of the Complaint (#42), a Motion for Summary Judgment on Count Three (#49), and an Amended Motion for Summary Judgment on Count Three (#60).
Motion to Dismiss — As to the Motion to Dismiss, Plaintiff has not identified any requested discovery which would be required to respond to these motions. Indeed, Plaintiff has already filed his Response (#48) to the Motion to Dismiss. As noted by Plaintiff in that Response (#48 at 3) the Court's ability to consider extraneous evidence is limited. For example, when deciding a motion to dismiss for lack of jurisdiction, the Court is required to assume the veracity of the facts alleged by the Plaintiff. Smith v. Gross, 604 F.2d 639 (9th Cir. 1979). When considering a motion to dismiss for failure to state a claim, the Court may not consider facts outside the complaint. Hal Roach Studios, Inc. v. Richard Feiner Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). Thus, although Plaintiff now argues that the sought after discovery would yield evidence to support his defense of the motion to dismiss, Plaintiff's need to provide such evidentiary support is limited.
The Motion to Dismiss is based upon Plaintiff's claims related to his 1994 and 1995 tax years. Plaintiff's Response to the Motion for Protective Order argues that the discovery responses "will show and proof [sic] that Plaintiff does not owe any allege [sic] taxes for taxable years 1994 and 1995, and that Plaintiff Fordjour is entitled by law to claim all his biological dependents upon whom he provided Full support at all times to the present." For purposes of this order, the Court assumes that the requested discovery would prove those things. What Plaintiff does not establish, however, is why that evidence is needed to rebut the jurisdictional and procedural arguments raised in the Motion to Dismiss.
Motion for Summary Judgment — Similarly Plaintiff has not identified any specific discovery requests to which a response is required to allow Plaintiff to respond to the original Motion for Summary Judgment. Again, it is telling that Plaintiff has already filed his Response (#58) to the Motion for Summary Judgment and filed an affidavit in support of his Statement of Facts (#59). Plaintiff's Response on the Motion for Summary Judgment does not assert inability to establish facts by affidavit, and does not include a request for a stay to allow completion of discovery, pursuant to Rule 56(f).
Contrary to Plaintiff's argument, facts relied upon in opposition to a motion for summary judgment need not be established by the "best evidence," but presentation by affidavit is ordinarily sufficient. Rule 56(e), Fed.R.Civ.P. only requires that a response be supported "by affidavits or as otherwise provided in this rule." It is true that a motion for summary judgment "cannot be defeated by mere conclusory allegations unsupported by factual data." Angel v. Seattle-First Nat. Bank, 653 F.2d 1293, 1299 (9th Cir. 1981). It is also true that testimony presented by way of affidavit must be competent, admissible testimony based upon personal knowledge. U.S. v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970). See also Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir. 1991) (rejecting an affidavit because it was "not based on personal knowledge, but on information and belief"), aff'd, 508 U.S. 49 (1993). And so, it is true that where a party is unable to present facts by way of qualified affidavit resort to other sources such as discovery responses may be required. Wright Miller, loB Fed. Prac. Proc. Civ.3d § 2738 (2002). However, Plaintiff has not proffered any facts pertinent to the motion for summary judgment about which he is without personal knowledge, or is otherwise unable to present evidence by way of affidavit.
Amended Motion for Summary Judgment — Finally, the Court will establish a briefing schedule on the Amended Motion for Summary Judgment. In the event that Plaintiff believes discovery responses will be required to allow him to respond adequately on the amended motion, Plaintiff may proceed under Fed.R.Civ.P. 56(f), which provides as follows:
(f) When Affidavits are Unavailable. 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 opposition, 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) (emphasis added). In Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919 (2nd Cir. 1985), the Second Circuit summarized the requirements for compliance with the rule:
[W]e note that Rule 56(f) requires the opponent of a motion for bE produce evidence in summary judgment who claims to be unable to opposition to the motion to file an affidavit explaining:
1) fhe nature of the uncompleted discovery, i.e., what facts are sought and how they are to be obtained; and
2) how those facts are reasonably expected to create a genuine issue of material act; and
3) what efforts the affiant has made to obtain those facts; and
4) why those efforts were unsuccessful.
Id. at 926 (emphasis added).
Therefore, the Court finds that Plaintiff has failed to establish that completion of the pending discovery is required to allow Plaintiff to adequately respond to the pending dispositive motions. Apart from his contentions discussed above, Plaintiff does not assert any prejudice from delaying discovery in this matter. Defendant has established that responding to the discovery, with the exception of specified records to be addressed by separate order, will result in considerable effort and expense. Accordingly, the Court also finds that a "just, speedy and inexpensive determination," Fed.R.Civ.P. 1, of this action calls for a stay of further discovery pending a resolution of the dispositive motions.
SCHEDULE ON AMENDED MOTION FOR SUMMARY JUDGMENT
On April 9, 2002, Defendant filed an Amended Motion for Summary Judgment on Count Three (#60). The consideration on such motion will proceed as ordered herein.
NOTICE — WARNING TO PLAINTIFF This Notice is Required to Be Given to Plaintiff
Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).
Defendant's motion for summary judgment seeks to have a portion of your case decided against you. The Motion will, if granted, end your case as to the effected claims.
Rule 56 Federal Rules of Civil Procedure, tells you what you must do in order to oppose a motion for summary judgment. In particular, Rule 56(c), Federal Rules of Civil Procedure says:
(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
Generally, that means that summary judgment must be granted when there is no genuine issue of material fact — that is there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case.
When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendant's declarations and documents and show that there is a genuine issue of material fact for trial.
Rule 56, Fed.R.Civ.P., subsection (e), provides in part as follows:
When a motion for summary judgment is made and supported as provided in this Rule, 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. If the adverse p arty does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.
Plaintiff's attention is further directed to the provisions of Rule 1.10, Rules of Practice of the United States District Court for the District of Arizona. Subparagraph (e) of that Rule provides:
Unless otherwise permitted by the Court, a motion including its supporting memorandum, and the response including its supporting memorandum, each shall not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts. Unless otherwise permitted by the Court, a rely including its supporting memorandum shall not exceed eleven (11) pages, exclusive of attachments.
Subparagraph (I)(1) of the Rule provides:
Any party filing a motion for summary judgment shall set forth separately from the memorandum of law, and in full, the specific facts on which that party relies in support of the motion. The specific facts shall be set forth in serial fashion and not in narrative form. As to each fact, the statement shall refer to a specific portion of the record where the fact may be found (i.e., affidavit, deposition, etc.). Any party opposing a motion for summary judgment must comply with the foregoing in setting forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party. In the alternative, the movant and the party opposing the motion shall jointly file a stipulation signed by the parties setting forth a statement of the stipulated facts if the parties agree there is no genuine issue of any material fact. As to any stipulated facts, the parties so stipulating may state that their stipulations are entered into only for the purposes of the motion for summary judgment and are not intended to be otherwise binding.Length Limitations — Plaintiff's Response to Motion for Summary Judgment, including his Memorandum of Points and Authorities in Support of Plaintiff's Response to Motion for Summary Judgment may not exceed seventeen (17) pages in length, without the prior approval of the court. Attachments in support of his responsive memorandum are not included in the seventeen page limit; nor is the required Statement of Facts.
Statement of Facts Requirements — The Statement of Facts must set forth the specific facts upon which Plaintiff relies in support of his position opposing Defendants' Motion for Summary Judgment. The facts must be set forth in regular succession, preferably numbered individually, and each must be accompanied by a reference to where each fact may be located (i.e., in an affidavit, deposition transcript, answers to interrogatories, admissions, etc.).
Documentary Evidence Required — Plaintiff is warned that each fact must be supported by documentary evidence. It is not enough for Plaintiff to merely allege that a certain fact exists. This allegation must be supported by an affidavit, deposition transcript, answer to interrogatory under oath, or similar sworn evidence.
Failure to Comply — Finally, Plaintiff's attention is directed to Subparagraph (i) of Rule 1.10 of the Rules of Practice, which provides:
If a motion does not conform in all substantial respects with the requirements of this Rule, or if the opposing party does not serve and file the required answering memoranda . . . such non-compliance may be deemed a consent to the . . . granting of the motion and the court may dispose of the motion summarily.
In other words, if Plaintiff doesn't substantially comply with each of the above listed requirements, the court may deem that he has consented to entry of judgment in Defendants' favor and may enter judgment against Plaintiff without a trial.
IT IS THEREFORE ORDERED that Defendants's Motion for Protective Order, filed March 4, 2002 (#52-2) is GRANTED.
IT IS FURTHER ORDERED staying discovery in this matter until after a decision on the Motion to Dismiss (#42) and the Motion for Summary Judgment (#52). Responses to currently outstanding discovery shall be served within thirty (30) days of the filing of the order, or last order, which resolves such dispositive motions.
IT IS FURTHER ORDERED that:
1. Response — Plaintiff shall have until May 17, 2002 within which to file a response to Defendant's Amended Motion for Summary Judgment on Count Three, filed April 9, 2002 (#60), together with a separate Statement of Facts in support of his response, supporting affidavits and other appropriate exhibits.
2. Reply — Defendants shall have twenty-one (21) days following service of the response in which to file a reply.
3. Decision — The motion shall be deemed to be ready for decision without oral argument on the day following the date set for filing the reply unless otherwise ordered by the Court.
4. Joint Proposed Pre-Trial Order — In the event that this motion for summary judgment remains pending on any deadline for filing of a jointly proposed pre-trial order, then such deadline shall be extended to date thirty (30) days following the entry of an order disposing of this motion