Evans v . Taco Bell Corp. CV-04-103-JD 06/30/05
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Wendy Evans, et a l .
v. Civil N o . 04-cv-103-JD
Opinion N o . 2005 DNH 104
Taco Bell Corp.
O R D E R
Taco Bell Corp. has moved for summary judgment on the
plaintiff’s claims for injuries she allegedly suffered upon
learning that an employee of a Taco Bell restaurant she and her
family patronized had been diagnosed with Hepatitis A . The
plaintiff, Wendy Evans, who brought the suit as a putative class
action, objects on the basis of Rule 56(f) of the Federal Rules
of Civil Procedure. Treating the objection as a motion, Taco
Bell has filed its own objection to any Rule 56(f) relief.
Background
An employee of the Taco Bell restaurant in Derry, New
Hampshire, was diagnosed with Hepatitis A on February 2 5 , 2004.
That same day, Taco Bell notified the New Hampshire Department of
Health and Human Services, which immediately began an
investigation. As a result, the department issued a health
advisory on February 2 7 , 2004, which, in relevant part, announced
public immunoglobulin clinics to inoculate those potentially
exposed to the disease.
Evans, her husband, and their three minor children, who
claim to have consumed food from the restaurant in question on
both February 7 , 2004, and February 2 1 , 2004, were inoculated at
one of the clinics on February 2 9 , 2004. Evans remained fearful,
however, because she allegedly was told that the inoculations
would be effective against only their second possible exposure to
the disease, if at all. Evans claims that the inoculations were
physically painful and that everyone in her family experienced
nausea and headaches in their wake. She further alleges that, on
March 6, 2004, her children developed a rash for which she sought
to have them treated, only to learn that they could not be tested
for Hepatitis A for at least another week. On March 1 1 , 2004,
still unaware of whether her family had contracted the disease,
Evans brought this lawsuit.1
The defendants then removed the action to this court on the
basis of diversity jurisdiction. Evans responded with a motion
to remand the case on the ground that one of the putative John
Doe defendants, the restaurant manager, resided in New Hampshire
and that complete diversity was therefore lacking. Following the
defendants’ objection to the motion, which pointed out that the
1
The complaint named a number of defendants in addition to
Taco Bell Corp., including certain parent and subsidiary
corporations. All of those parties were subsequently dismissed
from the case without prejudice by stipulation of the parties.
2
citizenship of defendants sued under fictitious names is
disregarded for purposes of determining diversity, see 28 U.S.C.
§ 1441(a), 2 Evans filed a motion seeking to add the manager as a
named defendant, asserting that she resided in New Hampshire.
The motions were referred to the magistrate, who denied them
as part of an order sharply criticizing the motion practice of
Evans’s counsel and likening their legal work to “that of pro se
litigants.”3 2004 WL 103995 (D.N.H. Apr. 2 1 , 2004), at *2 n.1.
Citing L.R. 1.3(a), which authorizes the imposition of sanctions
for failure to comply with the Local Rules, the magistrate
announced that Evans’s “[c]ounsel are forewarned.”
Id. The
court itself subsequently cautioned that “[a]ppropriate sanctions
are available and will be employed by the court should Evans
engage in similar motion practice in the future.”
326 F. Supp.
2d 2 1 4 , 225 n.14 (D.N.H. 2004).
Meanwhile, on May 7 , 2004, the parties filed a joint
discovery plan in which the defendants proposed that initial
disclosures and other discovery in the case await a decision on
the summary judgment motion they intended to file, while Evans
wished to proceed with discovery on the issue of class
2
The defendants had also made this point in the notice of
removal itself.
3
In a separate order, the magistrate granted the defendants’
motion to allow one of its lawyers to appear pro hac vice over
Evans’s objection, which he deemed “frivolous.”
3
certification. At the preliminary pretrial conference, held May
1 1 , 2004, Evans’s counsel announced their intention to file a
second motion for remand, this time on the ground that the
defendants had failed to allege the requisite amount in
controversy in their notice of removal. The court indicated that
it would rule on that motion before resolving the dispute over
how discovery was to proceed. Following the submission of
extensive briefing on the remand motion, as well as the
defendants’ related motion to amend their notice of removal, the
court issued an order on July 1 4 , 2004, denying those motions as
well as the defendants’ request to forestall discovery so they
could move for summary judgment.4 326 F. Supp. 2d 214 (D.N.H.
2004). The court also ordered the parties to submit a new joint
discovery plan by July 2 3 , 2004.
The ensuing plan, formulated during a Rule 26(f) conference
held on July 1 6 , 2004, set a deadline of January 1 3 , 2005, for
the completion of discovery, with all interrogatories, document
requests, and requests for admissions to be served by October 1 5 ,
2004. The plan, which the court subsequently approved, also
noted that “[a]ll discovery at this stage [shall] be tailored
solely towards issues relevant to the court’s determination of
class certification and/or summary judgment.” Prop. Disc. Plan
4
The order also denied the defendants’ motion to require
Evans to post security for their costs under L.R. 67.1(a).
4
at 4 . On November 8 , 2004, Taco Bell filed its motion for
summary judgment, giving Evans until December 8 , 2004, to file
her objection. The parties later agreed that Evans could “have
up to and including February 1 4 , 2005 to obtain Affidavits and
conduct depositions to respond” to the summary judgment motion,
filing a stipulation to that effect which the court approved.
When that deadline arrived, however, Evans moved to extend
her time to respond to the summary judgment motion again, to
March 1 6 , 2005. In the motion, to which Taco Bell assented,
Evans stated that while she had taken depositions during the
preceding months, she had “requested the opportunity to depose
additional witnesses affiliated with” Taco Bell, which had since
provided their contact information. Mot. Extend Deadline ¶¶ 4-5.
The parties had therefore agreed to give Evans an additional
thirty days to respond to the summary judgment motion while
counsel scheduled the additional depositions. The motion also
noted that “further agreed upon pleadings may be filed addressing
scheduling in this matter.” Id. ¶ 7 . After the court granted
the motion, the parties jointly moved to extend Evans’s deadline
to respond to summary judgment a third time. This motion noted
that Evans “anticipate[d] that all but one of the depositions
relevant to Defendant’s motion for Summary Judgment can be
completed within thirty (30) days,” i.e., by March 2 0 , 2005.
Joint Mot. Extend Deadline ¶ 6. Because that one witness would
5
not be available until March 2 8 , 2005, the parties requested an
extension of Evans’s deadline to respond to the summary judgment
motion to April 2 2 , 2005. The court granted the motion.
The depositions did not, however, progress as anticipated.
It was not until April 5 and 6, 2005, that Evans deposed the
restaurant manager, Frances Greenwood; the “market coach” at the
time of the hepatitis scare, Joseph Yund; or the acting “area
coach” at that time, Stella Stout. Evans gives no reason why she
did not seek to depose Greenwood, whom she has known to be a
potential witness since the outset of this case, and, indeed, had
sought to add as a party-defendant, until the eve of the deadline
to object to the summary judgment motion.5
Evans’s counsel had announced his intention to depose Yund
and Stout immediately after learning of their apparent relevance
to the case through the depositions of other Taco Bell employees
on December 16 and 1 7 , 2004. Counsel for Taco Bell responded, on
January 5 , 2005, that his client would not voluntarily produce
Yund and Stout for deposition and that their depositions would
5
One of Evans’s attorneys recounts that they verbally
requested, at an unspecified time, that counsel for Taco Bell
provide Greenwood’s address so she could be subpoenaed o r ,
alternatively, that he agree to accept service of the subpoena on
her behalf. Counsel for Taco Bell responded on March 1 , 2005, by
providing Greenwood’s address and refusing to accept service.
But Evans’s counsel does not explain why they waited until the
winter of 2005 to make these requests.
6
therefore have to proceed by subpoena. Nevertheless, Evans’s
counsel waited until February 1 5 , 2005, to ask counsel for Taco
Bell to provide addresses at which Yund and Stout could be
subpoenaed. Evans’s counsel also did not cause those subpoenas
to issue until March 1 7 , 2005, despite receiving Yund’s address
on February 2 2 , 2005, and Stout’s address on March 1 , 2005.
In addition, counsel for Evans has yet even to issue a
subpoena to depose another Taco Bell employee, Edward LaClair,
who was identified as “familiar with Taco Bell quality assurance
programs” in Taco Bell’s supplemental initial disclosures of
October 2 7 , 2004. Hutchins Aff. ¶ 1 7 , Ex. 2 , § A ( 5 ) . As they
did with Yund and Stout, Evans’s counsel announced their
intention to depose LaClair through the December 1 7 , 2004, letter
to counsel for Taco Bell and learned in response that the company
would not voluntarily make LaClair available for deposition.
Taco Bell’s counsel, however, provided LaClair’s address to
counsel for Evans on February 1 1 , 2005, even earlier than they
had furnished that information for Yund or Stout. Evans’s
counsel suggest that they did not prioritize LaClair’s deposition
because they remained unaware of what they characterize as his
“active role” in the events at issue in this case until
Greenwood’s deposition on April 5 and 6, 2005. Nevertheless, in
a February 1 5 , 2005, letter to counsel for Taco Bell, counsel for
Evans included LaClair among six witnesses whose depositions were
7
being sought, asking for his address so a subpoena could be
issued.6 Again, although Evans’s counsel had already been given
LaClair’s address at that point, and despite the passage of more
than four months, a subpoena has yet to issue.
Finally, based on the deposition testimony of the Taco Bell
employees taken on December 16 and 1 7 , 2004, counsel for Evans
asked Taco Bell to produce a number of different categories of
documents. Because the request was made via the December 1 7 ,
2004, letter, counsel for Taco Bell responded by asking their
adversaries to resubmit it in the form of a request for the
production of documents issued pursuant to Fed. R. Civ. P. 3 4 .
When counsel for Evans had not done so by February 1 1 , 2005, Taco
Bell’s counsel stated in writing that they assumed their
counterparts no longer wanted the documents. Nevertheless,
counsel for Taco Bell subsequently agreed to respond to the
requests, which they did on March 3 1 , 2005, by providing certain
documents, asserting that others did not exist, and raising
6
One of Evans’s attorneys explains that, based on the
deposition testimony of the infected employee’s mother, they
believed that someone named “Edward Dupont” had played the role
they now attribute to LaClair. Counsel for Evans had therefore
asked to depose “Dupont,” though never in lieu of LaClair, and
now faults Taco Bell’s lawyers for not pointing out that “Dupont”
did not actually exist. The court fails to appreciate how this
metaphysical misunderstanding could have possibly contributed to
any delay in issuing a subpoena to LaClair, whose existence was
w
revealed in Taco Bell’s initial disclosures and has not since
been called into question.
8
objections to the balance of the requests. Evans’s counsel wrote
back a few days later, pressing some of the objected-to requests
and threatening “to seek court intervention, including an award
of court fees and costs” unless Taco Bell relented. Hutchins
Aff. ¶ 1 5 , Ex. 8 , at 2 . Although Evans’s lawyers assert that
counsel for Taco Bell had yet to respond to the letter as of
April 2 2 , 2005, no motion to compel has been filed.
Counsel for Evans does, however, wish to propound another
Rule 34 request to Taco Bell seeking documents assertedly
referenced at the Greenwood and Young depositions. Although
those depositions occurred more than three weeks before Evans
filed her Rule 56(f) objection, one of her attorneys explains
that he could not have served the request before getting the
depositions transcripts because “[i]t [was] necessary for [him]
to have the actual transcripts of the depositions in front of
[him] so that [he could] ensure that the language used in [the
request] in referencing specific documents [was] accurate.”
Hutchins Aff. ¶ 1 2 . At present, an additional month has passed
since the depositions occurred, but it remains unclear whether
Evans’s counsel has issued the document request.
Discussion
Rule 56(f) of the Federal Rules of Civil Procedure, entitled
“When Affidavits are Unavailable,” provides that:
9
Should it appear from the affidavits of a party
opposing [a summary judgment] 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.
The First Circuit has held that “use of the rule . . . requires
meeting several benchmarks,” pithily described as
“authoritativeness, timeliness, good cause, utility, and
materiality.” Resolution Trust Corp. v . N . Bridge Assocs., 22
F.3d 1198, 1203 (1st Cir. 1992); see also Guzman-Ruiz v .
Hernandez-Colon,
406 F.3d 3 1 , 35 (1st Cir. 2005). The “good
cause” requirement mandates that an applicant for Rule 56(f)
relief demonstrate its “due diligence both in pursuing discovery
before the summary judgment initiative surfaces and in pursuing
an extension of time thereafter.” Ayala-Gerena v . Bristol Myers-
Squibb Co.,
95 F.3d 8 6 , 92 (1st Cir. 1996). The “utility” and
“materiality” requirements work in conjunction to demand that the
applicant “‘set forth a plausible basis for believing that
specified facts . . . probably exist’ and ‘indicate how the
emergent facts, if adduced, will influence the outcome of the
pending summary judgment motion.’” C.B. Trucking, Inc. v . Waste
Mgmt., Inc.,
137 F.3d 4 1 , 44 (1st Cir. 1998) (quoting Resolution
Trust,
22 F.3d at 1203). In objecting to Evans’s request for
Rule 56(f) relief, Taco Bell argues that she has failed to show
10
good cause, utility, or materiality.7
The court agrees. First, Evans has not demonstrated that
she was diligent in pursuing discovery either before or after
Taco Bell filed its motion for summary judgment. All methods of
discovery authorized by the Federal Rules of Civil Procedure have
been available to Evans from the time the parties conducted their
scheduling conference in this case on July 1 6 , 2004, until the
deadline to respond to the summary judgment motion finally lapsed
on April 2 2 , 2004. Fed. R. Civ. P. 26(d). Indeed, although
Evans, joined by Taco Bell, initially proposed that she complete
all discovery relevant to the summary judgment motion by January
1 3 , 2005, the court proceeded to give her additional time to
conduct such discovery on three separate occasions. Thus,
7
Taco Bell also argues that, because Evans’s objection
includes a “request that, if granted, would require the court to
proceed other than in the ordinary course,” she has disregarded
L.R. 5.1(c) by failing to note the request on the first page of
her filing either immediately to the right of or immediately
beneath the caption. For the same reason, as Taco Bell also
points out, Evans should have made a good faith effort to obtain
its concurrence to Rule 56(f) relief and included a certification
to that effect in the filing. L.R. 7.1(c). Although Taco Bell
argues that these failures alone justify a denial of Rule 56(f)
relief, the circuit has indicated that a request made in written
form and filed in response to the summary judgment motion
generally suffices to invoke the rule. Patterson-Leitch C o . v .
Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir.
1988). Nevertheless, in light of the magistrate’s warning to
Evans’s counsel that disregarding the Local Rules was at their
peril, the wiser course would have been to file their request as
a motion in compliance with the relevant provisions of L.R. 5.1
and 7.1.
11
despite a discovery period of more than nine months, the last
three of which were devoted exclusively to discovery in response
to Taco Bell’s motion for summary judgment,8 Evans has yet to
complete the discovery she deems material to the motion.
Through their affidavits submitted in support of the Rule
56(f) objection, Evans’s counsel strive mightily to shift the
fault for this state of affairs from themselves to counsel for
Taco Bell. The fault, however, lies squarely with counsel for
Evans. Although they seek to attribute the delays in deposing
certain witnesses to the lack the addresses at which they could
be subpoenaed, the fact remains that Taco Bell provided LaClair’s
address on February 1 1 , Yund’s on February 2 2 , and Stout’s and
Greenwood’s on March 1 , 2005.9 Even at the latest of these
8
Because Evans, either alone or in conjunction with Taco
Bell, sought to extend the discovery deadline solely to enable
her to respond to the summary judgment motion, the extensions
were granted for that purpose alone. Accordingly, conducting
discovery on any other subject after the initial discovery cutoff
of January 1 3 , 2005, would have been in violation of the court’s
scheduling order.
9
Evans’s attorneys also suggest that Taco Bell delayed the
depositions by refusing to produce these witnesses for deposition
voluntarily. Taco Bell appears to have had a sufficient basis
for doing s o , see, e.g., Contardo v . Merrill Lynch, Pierce,
Fenner & Smith, 119 F.R.D. 6 2 2 , 623 (D. Mass. 1988) (noting that
only officer, director, or managing agent of corporate party may
be deposed on notice pursuant to Fed. R. Civ. P. 30(b)(1)), but,
in any event, their position went unchallenged by Evans.
Moreover, because Taco Bell notified Evans of its position less
than three weeks after she announced her intention to take the
depositions, it should have delayed her efforts to issue
subpoenas only minimally, if at all.
12
dates, more than fifty days remained until the April 22 deadline
to complete discovery on the summary judgment motion.
Inexplicably, however, counsel for Evans waited until March 17 to
issue subpoenas to Yund, Stout, and Greenwood, and never even
bothered to issue one to LaClair.
Moreover, the court notes that Evans’s lawyers could likely
have obtained all of the witnesses’ names and addresses as early
as the end of last summer had they simply propounded an
interrogatory to Taco Bell asking it to identify persons with
knowledge of the facts underlying the litigation.10 Such an
interrogatory is standard practice in virtually every civil case.
Instead, counsel for Evans chose to proceed solely by taking
depositions, starting with those of low-level Taco Bell
employees, and even those did not start until five months into
the discovery period, on December 1 6 , 2004.11 Based on the
detailed history of discovery in this case recited in the
10
In the context of a discovery request, “identify” is
usually defined to require the responding party to give both the
last known address and place of employment of any person named in
response. See, e.g., L.R., D. Mass. 26.5(C)(3) (defining
“identify” to this effect when used in discovery requests).
11
One of Evans’s attorneys recounts that they announced
their desire to depose these employees on October 1 8 , 2004, but
that counsel for Taco Bell did not “agree[] to make those four
employees available for deposition” until November 3 0 , 2004.
Consavage Aff. ¶ 2 5 . Nevertheless, by October 1 8 , discovery had
already been open for three months before counsel for Evans even
asked, and they did not need to wait for a response: they could
simply have issued deposition notices or subpoenas.
13
Consavage affidavit, in fact, it appears that Evans never
propounded any interrogatories to Taco Bell. Rule 56(f) offers
no help to litigants who, like Evans, have chosen not to help
themselves through available mechanisms for discovery.
Resolution Trust, 22 F.3d at 1203 (“Rule 56(f) is designed to
minister to the vigilant, not to those who slumber upon
perceptible rights.”)
In another departure from typical discovery practice, Evans
appears to have waited until after taking the depositions in
December to ask Taco Bell to produce any documents. C f . Fed. R.
Civ. P. 3 4 . Although deponents occasionally testify about
documents which interrogating counsel had no previous basis to
believe existed, the vast majority of the documents requested in
the wake of the depositions of the low-level Taco Bell employees
do not fit that description. Instead, they constitute documents
which Taco Bell could have been asked to produce right up front,
including the test results of any employees screened for
Hepatitis A , any written statements given by employees about the
incident giving rise to the lawsuit, and any communications
between Taco Bell and the state Department of Health and Human
Services.12 See Hutchins Aff. ¶ 1 3 , Ex. 3 , at 3-4.
12
The same is true of many of the documents which Evans’s
counsel says he plans to request on the basis of Greenwood’s and
Yund’s deposition testimony. Furthermore, to the extent the
proposed request asks for documents which counsel could not
reasonably have believed to exist prior to the Greenwood
14
Again, the failure of Evans’s counsel to exercise her rights
to discovery in a timely fashion disqualifies her from any relief
under Rule 56(f). See Ayala-Gerena, 95 F.3d at 92-93 (upholding
denial of 56(f) relief where, inter alia, applicant did not serve
request for production of documents until two weeks before
discovery cutoff). In any event, Taco Bell responded to the
document request on March 3 1 , 2005, more than three weeks before
Evans was due to object to the summary judgment motion. Although
Evans’s counsel grouse that “the responses were incomplete,”
Hutchins Aff. ¶ 1 5 , they have yet to file a motion to compel
production of whatever documents were withheld.13 This omission
further cuts against any Rule 56(f) relief. See Rodriguez-
Cuervos v . Wal-Mart Stores, Inc.,
181 F.3d 1 5 , 24 (1st Cir. 1999)
(upholding denial of Rule 56(f) request where, inter alia,
applicant “never requested concrete measures by the district
court to intervene in discovery”); c f . Resolution Trust,
22 F.3d
at 1205 (determining that applicant’s delay in moving to compel
outstanding discovery did not bar Rule 56(f) relief where
deposition, Rule 56(f) relief would still be inappropriate, given
that Evans’s attorneys knew who Greenwood was at the time they
filed the case yet did not even ask for her deposition until some
later, unspecified time. See note 7 , supra.
13
Similarly, Hutchins complains that time was wasted during
his adversaries’ refusal to respond to the request on the ground
that it was not in the proper form, but also never moved to
compel a more timely response.
15
adversary had baselessly refused to make timely response, ignored
representation to court that it would respond promptly, and
missed deadline to respond set by court’s sua sponte order).
Furthermore, even if Evans’s own counsel deserved no blame
for not taking the Yund, Stout, and Greenwood depositions until
April, the fact remains that those depositions have already been
taken. Indeed, they were completed more than two weeks before
Evans’s deadline to object to Taco Bell’s motion for summary
judgment. In this day and age, where stenographers routinely
make a rough copy of a deposition transcript accessible to
counsel in electronic format on the same day as the deposition
itself, Evans’s counsel’s suggestion that transcripts of
depositions conducted on April 5 , 6, and 7 , would not become
available until April 27 strikes the court as disingenuous.14
The same is true of their further claims that they need to wait
until the deponents have read and signed the transcripts to begin
evaluating them, and then need “two to three weeks” beyond that
to “review[] and index[]” the transcripts before they can be used
in objecting to summary judgment. Mem. Supp. 56(f) O b j . at 8 .
14
Although Hutchins claims in his affidavit that the court
reporter has so informed his office, he does not say whether he
asked that the transcripts be prepared in a rush, which is a
service that stenographers commonly provide for an additional
fee. Given counsel’s knowledge of the impending deadline to file
the summary judgment objection at the time the depositions were
taken, a request for expeditious transcripts would have been in
order as soon as the court reporter was scheduled.
16
In any event, the delay in receiving the transcripts calls out
not for Rule 56(f) relief, but for an extension of the deadline
to respond to the summary judgment motion so that the transcripts
can be filed with the objection.
Finally, Evans’s counsel have failed to complete the
discovery they characterize as essential to opposing Taco Bell’s
motion for summary judgment despite the fact that they have known
the precise bases for that motion since November 8 , 2004, when
Taco Bell filed i t . Under these circumstances, there is
absolutely no “good cause for the failure to have discovered the
facts sooner” as generally required for relief under Rule 56(f).
Resolution Trust, 22 F.3d at 1203.
Evans’s plea for the assistance of Rule 56(f) also fails on
another, independent basis. To invoke the rule successfully,
“[a] petitioning party must offer the trial court more than
optimistic surmise. He must give the court reason to believe
that undiscovered facts exist and that those facts, if obtained,
would help defeat the pending motion.” Vargas-Ruiz v . Golden
Arch Dev., Inc., 368 F.3d 1 , 4 (1st Cir. 2004). In attempting to
make this showing, Evans relies solely on Hutchins, who offers
nothing beyond conclusory assertions. Although he describes the
deposition testimony of Greenwood and Yund in some detail, he
makes no effort whatsoever to explain its relevance, declaring
merely that the depositions “provided substantial factual
17
information which would support denial of defendant’s Motion for
Summary [sic], including the plaintiff’s count for violation of
New Hampshire’s Consumer Protection Act (RSA 358-A).”15 Hutchins
Aff. ¶ 1 1 . Hutchins claims simply that the documents he intends
to request in light of the Greenwood and Yund depositions are
“likely very relevant and necessary in order for [Evans] to
prepare her Objection . . . .” Id. ¶ 1 2 . Hutchins characterizes
LaClair as a “critical witness whose deposition is necessary
before [Evans] can object to the pending Motion,” but elaborates
only that LaClair had “obvious knowledge of and actively [sic]
corporate involvement in the response of Taco Bell to the subject
incident . . . .” Id. ¶¶ 20-21. Hutchins does not give any
indication as to how the documents Taco Bell has assertedly yet
to produce in response to his request of December 1 7 , 2004, or
the deposition testimony Stout has given, might bear upon the
summary judgment motion.
Rule 56(f) demands considerably more, both in terms of the
probable existence of discoverable facts and the materiality of
such facts to the pending summary judgment motion. E.g.,
Resolution Trust, 22 F.3d at 1203. “[A] plaintiff’s speculative
assertions that the defendant has unspecified facts in its
15
In any event, as previously noted, Evans should now be in
possession of the Greenwood and Stout deposition transcripts and
therefore has the present ability to file them along with her
objection to the summary judgment motion.
18
possession necessary for the plaintiff to develop its legal
theories coupled with conclusory statements that discovery should
be commenced are ‘entirely inadequate to extract the balm of Rule
56(f).’” C.B. Trucking, 137 F.3d at 45 (quoting Patterson-Leitch,
840 F.2d at 989)); see also, e.g., Mattoon v . City of Pittsfield,
980 F.2d 1 , 7 (1st Cir. 1992) (upholding entry of summary
judgment before completion of discovery despite Rule 56(f) where,
inter alia, plaintiffs “merely conjecture[d] that something might
be discovered” but provided no basis for believing that discovery
would disclose evidence creating a genuine issue of fact
sufficient to defeat summary judgment).
In addition to her lack of diligence in pursuing the
discovery she now claims to need, Evans has come forward with no
reason to believe that the discovery will turn up any facts
bearing upon Taco Bell’s summary judgment motion. Her motion for
relief under Rule 56(f) is therefore denied. Because the
discovery cutoff has already passed, there shall be no further
discovery pending the court’s decision on summary judgment.
Evans shall file an objection to Taco Bell’s motion for summary
judgment by July 2 0 , 2005.
Finally, in its objection to Evans’s request for Rule 56(f)
relief, Taco Bell asks that “all Court costs and attorney’s fees
be taxed against [her].” Mem. O b j . Mot. for Relief at 6.
Insofar as Taco Bell seeks an order requiring Evans to pay its
19
attorneys’ fees incurred in connection with responding to the
Rule 56(f) application, the request must be made through a
separate motion. Fed. R. Civ. P. 11(c)(1)(A); L.R. 7.1(a)(1).
Based on the foregoing analysis, however, it appears that Evans’s
Rule 56(f) request might have been presented “to cause
unnecessary delay or needless increase in the cost of litigation”
in violation of Rule 11(a)(b)(1). This gives the court
particular concern in light of the history of this litigation and
the prior admonitions to Evans’s counsel by both the magistrate
and the court itself. Accordingly, if Taco Bell wishes to pursue
the issue of sanctions against Evans’s counsel in connection with
the Rule 56(f) objection, it shall do so by motion pursuant to
Fed. R. Civ. P. 11(c)(1)(A). It is unfortunate that the
resources of the court and the parties have had to expended on an
issue that never should have been a problem in this case.
Conclusion
For the foregoing reasons, Evans’s application for relief
under Fed. R. Civ. P. 56(f) (document n o . 50) is denied. Evans
shall file an objection to Taco Bell’s motion for summary
judgment by July 2 0 , 2005. Taco Bell’s request for attorneys’
20
fees is denied without prejudice to its ability to pursue such
relief by motion under Fed. R. Civ. P. 11(c)(1)(A).
SO ORDERED.
Joseph A . DiClerico, J r .
United States District Judge
June 3 0 , 2005
cc: Peter E . Hutchins, Esquire
Andrew W . Serell, Esquire
Bruce G. Tucker, Esquire
21
