IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49915
VIVIAN NIPPER, an individual, )
)
Plaintiff-Appellant, ) Boise, December 2023 Term
)
v. ) Opinion filed: February 1, 2024
)
LORE B. WOOTTON, M.D., and ROBERT A. ) Melanie Gagnepain, Clerk
MAIRS, D.O., )
)
Defendants-Respondents, )
)
and )
)
WEISER MEMORIAL HOSPITAL )
DISTRICT dba WEISER MEMORIAL )
HOSPITAL, )
)
Defendants. )
Appeal from the District Court of the Third Judicial District of the State of Idaho,
Washington County. Susan Wiebe, District Judge.
The judgment of the district court is affirmed.
McConnell Wagner Sykes & Stacey, PLLC, Boise, for Appellant Vivian Nipper.
Chad Nicholson argued.
Quane McColl, PLLC, Boise, for Respondent Lore B. Wootton, M.D. Vala Metz
argued.
Varin Thomas LLC, Boise, for Respondent Robert A. Mairs, D.O. John Varin
argued.
_______________________________________________
MOELLER, Justice.
This case concerns a medical malpractice action; however, the crux of the appeal centers
on the application of Rule 56(d) of the Idaho Rules of Civil Procedure, a rule governing summary
judgment motions.
1
Vivian Nipper sued Dr. Lore Wootton, M.D., Dr. Robert Mairs, D.O., and the Weiser
Memorial Hospital District for malpractice, claiming that she was injured during the delivery of
her child via a cesarean section (“c-section”). After a significant period of discovery, Dr. Wootton
moved for summary judgment on the claims asserted against her. In response to the motion, Nipper
moved for Rule 56(d) relief, requesting additional time to respond to Dr. Wootton’s motion for
summary judgment. The district court1 denied the request for Rule 56(d) relief and granted
summary judgment in favor of Dr. Wootton. Over a year later, Dr. Mairs filed a motion for
summary judgment on the claims asserted against him. Nipper again filed a motion seeking Rule
56(d) relief. The district court again denied Nipper’s request for Rule 56(d) relief and granted
summary judgment in favor of Dr. Mairs. Nipper timely appealed.
On appeal, Nipper argues that the district court erred in denying both motions for Rule
56(d) relief and in subsequently granting summary judgment in favor of Dr. Wootton and Dr.
Mairs. For the reasons stated below, we affirm the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 1, 2018, Vivian Nipper delivered her child via c-section at Weiser Memorial
Hospital in Weiser, Idaho. The c-section was performed by Dr. Wootton, a family practice
physician with an obstetrics practice in Weiser. In her complaint, Nipper alleged that during the
cesarean delivery, Dr. Wootton “negligently and/or recklessly” cut her bladder, causing significant
damage. After the injury to Nipper’s bladder, Dr. Wootton requested immediate assistance from
Dr. Mairs, a board-certified obstetrician and gynecologist living in Ontario, Oregon. Dr. Mairs
explained that because he was not on-call, it took him “at least an hour or more to get [himself]
ready and to travel from Ontario, Oregon to Weiser, Idaho.”
Upon Dr. Mairs’ arrival, Nipper was still in surgery. Dr. Mairs assisted and attempted to
repair Nipper’s bladder. Dr. Mairs observed anterior and posterior injuries to the bladder walls and
attempted to “create a flap between the uterus and bladder to establish a new surgical plane over
which the bladder could be repaired.” However, after further evaluation, Dr. Mairs “determined
that [he] could not safely remove the sutures from the [previous] uterine closure and therefore not
entirely separate the bladder from the uterus.” After multiple attempts to “oversew” the bladder,
1
At all times pertinent to the rulings challenged in this appeal, Susan Wiebe, District Judge, was the presiding judge.
Following Judge Weibe’s retirement in 2021, this case was assigned to Kiley Stuchlik, District Judge, who signed the
final judgment.
2
Dr. Mairs concluded that “further surgical intervention was futile . . . .” Dr. Mairs recommended
that Nipper “have continuous catheter drainage with a Foley catheter to allow the bladder to heal
on its own and until she could be further evaluated by a urologist.” After closing the muscles and
fascia, Dr. Wootton completed the rest of the surgical closure.
Nipper filed a complaint on June 25, 2019, naming Dr. Wootton and Dr. Mairs among the
defendants. In addition to the allegation against Dr. Wootton related to the initial injury to her
bladder, Nipper further alleged that in attempting to repair the damage, Dr. Mairs “failed to provide
the applicable standard of care by . . . failing to consult with a urologist and failing to adequately
repair the injury [to Nipper’s bladder].” As a result of the defendants’ negligence, Nipper alleged
that she had “suffered bodily injuries, including but not limited to, bladder/vaginal lacerations; has
not been able to continue with her employment; has incurred medical expenses and will incur
ongoing medical expenses; and in addition, Nipper has and continues to endure pain and suffering
and loss of enjoyment of life.”
On July 31, 2020, after more than a year to conduct discovery, Dr. Wootton moved for
summary judgment. In the memorandum in support of her motion, Dr. Wootton explained that she
had proffered an affidavit from her expert witness explaining “how Dr. Wootton complied at all
times with [the] standard of health care practice with respect to her care and treatment of [Nipper].”
Thus, Dr. Wootton argued that “the opinions expressed by [Wootton’s medical expert] in her
[a]ffidavit are sufficient to shift the burden to [Nipper] who must produce an expert affidavit
consistent with the requirements of [Dulaney v. St. Alphonsus Regional Medical Center, 137 Idaho
160, 164,
45 P.3d 816, 820 (2002),] to create an issue of fact.”
Nipper did not file anything in opposition to the factual and legal basis for Dr. Wootton’s
motion for summary judgment. Instead, on August 31, 2020, Nipper simply filed a motion for
relief under Idaho Rule of Civil Procedure 56(d) requesting “an additional 43 days, i.e. October
13, 2020, to respond to the summary judgment motion filed by [Dr, Wootton] on July 31, 2020.”
Rule 56(d) provides a nonmoving party relief from summary judgment when, in the discretion of
the trial court, the nonmovant shows “for specified reasons, it cannot present facts essential to
justify its opposition. . . .” Nipper’s attorney offered the following reason in support of her Rule
56(d) motion: “[Nipper] has retained an expert witness for this matter but has not yet determined
if that individual will be called as a witness at trial or if other individuals will be called as an
expert.”
3
Dr. Wootton opposed the request for Rule 56(d) relief, contending that “[d]espite the
passage of over fourteen months and repeated attempts by the defense to engage in discovery,
[Nipper] has disclosed no such evidence necessary to make her case.” Further, Dr. Wootton
asserted that the declaration statements proffered by Nipper were “wholly insufficient and fail to
set forth in good faith why this basic discovery was not reasonably conducted well before now.”
Dr. Wootton continued by asserting that Nipper had “demonstrate[d] a lack of due diligence and
good faith in pursuing this matter which do not support this [c]ourt stepping in and granting
additional time under the circumstances presented.”
The district court heard oral argument on Nipper’s motion in September 2020, after which
it denied the Rule 56(d) motion from the bench, explaining:
So I find that the situation in this case is similar to both the [Jenkins v. Boise
Cascade Corporation, 141 Idaho 233,
108 P.3d 380 (2004)] and [Taylor v. AIA
Services Corporation, 151 Idaho 552,
261 P.3d 829 (2011)] cases. In support of her
motion for more time, plaintiff alleges as follows: [“]It is anticipated that responses
to written discovery and depositions will provide further information regarding the
care and treatment provided to the plaintiff by the defendants to this matter,
information that is necessary to determine which experts will be called by plaintiff
at trial and to finish evaluating the care and treatment received by plaintiff.[”]
This overly-broad language would make more sense if discovery had just
begun or if defendants were somehow not participating in discovery in good faith.
Here the opposite is true. Plaintiff’s complaint was filed June 25th of 2019, served
upon defendants in September of 2019. Plaintiff served her answers to Wootton’s
discovery on November 14th, 2019, and there was no disclosure of any expert
witnesses. Unrebutted by plaintiff, she has not responded to Wootton’s e-mails
requesting supplemental discovery requests for medical records and/or signed
releases from plaintiff. Plaintiff did not respond to Wootton’s attempt to depose
plaintiff in April of 2020. This case has been going on for almost 15 months now,
and plaintiff has not yet begun or has only recently begun the process of discovery.
Defendant Wootton filed the motion for summary judgment on July 3lst, 2020, and
yet plaintiff had not even set deposition dates by the time she responded with her
56(d) motion on August 31st, 2020. The [c]ourt finds plaintiffs have not
participated in discovery in good faith.
And I found it somewhat, I don’t know if it’s odd, but typically where I have
a request for additional time, the other party will at least make some kind of a
showing, because I’m told that there is an expert witness that has been consulted
by the plaintiff, but something in the record so that the [c]ourt would have
something in case their 56(d) motion is denied, and nothing was filed by plaintiff.
The [c]ourt denies the requested relief because plaintiff has not participated
in discovery in good faith, has failed to set forth what relevant information she
needs or to provide a reasonable basis to believe additional discovery will produce
4
new or relevant information not previously disclosed that would preclude summary
judgment.
After denying the motion for Rule 56(d) relief, the district court then turned to Dr.
Wootton’s motion for summary judgment. As discussed above, Nipper did not oppose the
summary judgment motion beyond requesting Rule 56(d) relief. The court concluded that
in the absence of expert testimony that satisfied the requirements of Idaho Code section 6-
1012 regarding the community standard of care, and considering that Dr. Wootton had
proffered such testimony from her expert, Dr. Wootton was entitled to summary judgment.
The district court then entered a judgment dismissing Nipper’s case against Dr. Wootton.
The case then proceeded against the remaining defendants, including Dr. Mairs.
After another year had passed, on October 28, 2021, Dr. Mairs moved for summary
judgment. In his memorandum in support of summary judgment, Dr. Mairs argued that he
had met the applicable community standard of care and challenged Nipper’s expert,
preemptively arguing that Nipper’s expert was not qualified because the expert had not
become familiarized with the local standard of care. Importantly, Dr. Mairs proffered
expert witness testimony in the form of an affidavit to show that he “met or exceeded” the
applicable community standard of care. Nipper again sought Rule 56(d) relief. In her
request for relief, Nipper explained why additional time to respond was necessary:
[Nipper] seeks an additional 14 days to respond to Defendant Mairs’
summary judgment motion. As set forth above and more thoroughly in the
Declaration of Chad M. Nicholson, Plaintiff has not been able to obtain the
necessary declarations to oppose Mairs’ summary judgment motion because of trial
obligations in another matter. See generally Declaration of Chad M. Nicholson in
Support of Motion for Rule 56(d) Relief for Additional Time to Respond Re
Defendant Robert A. Mairs, D.O. Motion for Summary Judgment (“Nicholson
Dec.”), filed concurrently herewith.
[Nipper] submits that a 14-day extension of time is warranted in light of the
undersigned trial calendar, the existing, summary judgment deadlines and given
that trial of this matter is set to being [sic] in approximately five (5) months.
This time, Nipper opposed summary judgment by timely filing a brief in opposition.
While Nipper argued that her previously designated expert had “provided sufficient
foundation to testify to the applicable standard of care [through her expert witness
5
disclosure provided to the defendant],” 2 and that genuine issues of material fact existed,
Nipper again failed to offer admissible expert testimony establishing that Mairs negligently
failed to meet the applicable standard of care as required by Idaho Code section 6-1012.
The district court ruled from the bench, again denying the motion for Rule 56(d)
relief, concluding that “the analysis is even less favorable to plaintiff” than when she
requested Rule 56(d) relief previously. The district court explained that:
[N]ot only has [Nipper] had more than an additional year to conduct discovery
since her previous 56(d) motion was denied, the declaration from plaintiff’s counsel
does not satisfy the threshold requirements of 56(d) relief. There’s been no attempt
to articulate what additional discovery is necessary and how it is relevant in
responding to the motion. Also, I’ve already found plaintiff has failed to participate
in discovery in good faith.
(Emphasis added). After denying the request for Rule 56(d) relief, the district court then
granted Dr. Mairs’ motion for summary judgment, concluding that the lack of expert
testimony regarding the local standard of care again proved dispositive to the summary
judgment motion:
At the outset, the most obvious general observation is that [Nipper] has
failed to offer expert testimony indicating that the Defendant, Mairs, negligently
failed to meet the applicable standard of healthcare practice. More importantly, in
support of his motion, Defendant Mairs has submitted the affidavit of Dr. Wohlrab,
board-certified [OBGYN] who practices medicine in Rhode Island and teaches in
the area of female pelvic medicine at Albert Medical School of Brown University.
Although Dr. Wohlrab does not practice medicine in Idaho, he testified he
consulted with Dr. Mairs to familiarize himself with the relevant standard of care
in Weiser at the time of plaintiff’s alleged injuries.
In short, Dr. Wohlrab qualifies as an expert witness as required by Idaho
Code subsection[s] 6-1012 and 6-1013.
It is his opinion that Dr. Mairs’ care and treatment of plaintiff complied with
the local community standard of care in Weiser, Idaho on April lst, 2018. Having
shown that Dr. Mairs acted in accordance with the local standard of care, the burden
now shifts to [Nipper] to rebut this showing.
[Nipper] has simply failed to do so; therefore, the [c]ourt grants Dr. Mairs’
motion for summary judgment.
2
To be clear, Nipper did not offer the expert witness disclosure statement in her opposition to summary judgment.
Instead, Nipper only relied on the exhibit offered by Dr. Mairs in moving for summary judgment, which was offered
by Dr. Mairs to show the lack of familiarity with the community standard of care of Nipper’s expert. Importantly, the
expert witness disclosure is a document made and executed by counsel and not the sworn testimony of the expert.
6
Thereafter, final judgment was entered on May 31, 2022. Nipper timely appealed both denials of
Rule 56(d) relief and the subsequent grants of summary judgment to Dr. Wootton and Dr. Mairs. 3
II. STANDARD OF REVIEW
“Under Idaho Rule of Civil Procedure 56(d), a motion for an extension of time to file
additional affidavits, depositions, and interrogatories in opposition to a motion for summary
judgment lies within the discretion of the district court.” Haight v. Idaho Dep’t of Transp., 163
Idaho 383, 388,
414 P.3d 205, 210 (2018) (citing Carnell v. Barker Mgmt. Inc.,
137 Idaho 322,
329,
48 P.3d 651, 658 (2002)). When this Court reviews a discretionary decision of the district
court, this Court considers four elements: “Whether the trial court: (1) correctly perceived the issue
as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently
with the legal standards applicable to the specific choices available to it; and (4) reached its
decision by the exercise of reason.” Lunneborg v. My Fun Life,
163 Idaho 856, 863,
421 P.3d 187,
194 (2018).
III. ANALYSIS
On appeal, Nipper challenges the grants of summary judgment solely on the basis that the
district court improperly denied her motions for Rule 56(d) relief as to both doctors. By limiting
the scope of her appeal in this manner, Nipper has implicitly conceded that absent the additional
evidence she might have produced had her Rule 56(d) motions been granted, the district court did
not err in granting summary judgment on the basis that there were no genuine issues of material
fact and that the doctors were entitled to summary judgment as a matter of law. I.R.C.P. 56(a).
Thus, our review is limited to whether the district court abused its discretion in denying Rule 56(d)
relief to Nipper as it pertains to Dr. Wootton’s and Dr. Mairs’ motions for summary judgment.
A. The purpose and function of Rule 56(d).
Rule 56 of the Idaho Rules of Civil Procedure governs motions for summary judgment.
Rule 56(a) provides that “[a] party may move for summary judgment, identifying each claim or
defense, or the part of each claim or defense, on which summary judgment is sought.” The rule
requires the district court to “grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P.
56(a). Rules 56(b)(1) and (2) set forth the time requirements for filing, scheduling, and responding
3
The other defendants named in the original complaint and the amended complaint are not parties in this appeal.
7
to a motion for summary judgment, while Rule 56(b)(3) provides that the trial court “may alter or
shorten the time periods and requirements of this rule for good cause shown . . . .” I.R.C.P. 56(b)(3)
(emphasis added).
In addition to providing a mechanism to “alter or shorten” the time to respond to a motion
for summary judgment upon a showing of good cause, Rule 56(d) provides additional relief when
the nonmoving party establishes it “cannot present facts essential” to its opposition of the motion.
Specifically, Rule 56(d) provides:
If a nonmovant shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
I.R.C.P. 56(d) (emphasis added). Thus, a threshold requirement for obtaining Rule 56(d) relief is
that the party seeking such relief must provide specific reasons why it cannot present essential
facts to oppose summary judgment within the allotted timeframes.
We have explained that the reasons for granting Rule 56(d) relief include “how
postponement of a ruling on the motion will enable [a party], by discovery or other means, to rebut
the movant’s showing of the absence of a genuine issue of fact.” Jenkins v. Boise Cascade Corp.,
141 Idaho 233, 239,
108 P.3d 380, 386 (2005) (quoting Allen v. Bridgestone/Firestone, Inc.,
81
F.3d 793, 797–98 (8th Cir. 1996)). Additionally, in the context of the need for additional discovery,
this Court has made clear that “the [party seeking relief] has the burden of setting out ‘what further
discovery would reveal that is essential to justify their opposition,’ making clear ‘what information
is sought and how it would preclude summary judgment.’ ” Id. at 239,
108 P.3d at 386 (quoting
Nicholas v. Wallenstein,
266 F.3d 1083, 1088–89 (9th Cir. 2001)). This same standard can be
applied to the time to obtain responsive affidavits. Accordingly, we hold that a party seeking Rule
56(d) relief for additional time to obtain responsive affidavits has the burden of setting forth what
information it seeks to obtain and how it would preclude summary judgment.
The “specified reasons” requirement in Rule 56(d) can be said to include (1) the reasons
for the inability to proffer the affidavit within normal summary judgment timeframes and (2) the
type of information that would be proffered within the affidavit itself when it became available,
explaining how it is essential to the opposition of summary judgment. Given this requirement, we
8
have not interpreted Rule 56(d) as permitting generalized requests for additional time. See Jenkins,
141 Idaho at 239,
108 P.3d at 386 (“[The] affidavit stated that additional written discovery and
depositions were pending, but did not specify what discovery was needed to respond to [the]
motion and did not set forth how the evidence he expected to gather through further discovery
would be relevant to preclude summary judgment.” (emphasis added)). Instead, we adhere to Rule
56(d)’s requirement for “specified reasons,” which a party diligently preparing their case for trial
should readily be able to provide. For example, under Rule 56(d) parties are protected from a
premature motion for summary judgment by showing that (1) the discovery period has just
commenced, (2) what steps have been undertaken to obtain discovery, and (3) detailing what they
expected the discovery to show. In this way, Rule 56(d) serves as a tool to protect the diligent,
rather than as a lifeline for the unprepared.
B. The district court did not abuse its discretion in denying Nipper’s first motion for
Rule 56(d) relief from Dr. Wootton’s summary judgment motion.
In challenging the district court’s denial of her request for Rule 56(d) relief from Dr.
Wootton’s motion for summary judgment, Nipper largely relies on the unsupported assertion that
the summary judgment motion required her to disclose expert witness information that was not yet
required to be produced under the scheduling order. Reviewing the record, we note that the
scheduling order has not been included. Aside from Nipper’s own representations and assertions,
there is nothing in the record before us establishing when the expert witness disclosure deadline
was in relation to the timing of the motion for summary judgment, and what was required to be
disclosed.
We have previously made clear: “[t]he party appealing a decision of the district court bears
the burden of ensuring that this Court is provided a sufficient record for review of the district
court’s decision.” Gibson v. Ada County, 138 Idaho 787, 790,
69 P.3d 1048, 1051 (2003) (citations
omitted); see also I.A.R. 28(a) (“Parties are responsible for designating the documents which will
comprise the clerk’s record on appeal. The standard record . . . is not designed to include many
items . . . which may be pertinent to the appeal in a specific case.”). Further, we have explained
that “[w]hen a party appealing an issue presents an incomplete record, this Court will presume that
the absent portion supports the findings of the district court.” Gibson,
138 Idaho at 790,
69 P.3d at
1051 (citing Orthman v. Idaho Power Co.,
134 Idaho 598, 603,
7 P.3d 207, 212 (2000)). Since the
scheduling order has not been included in the record on appeal, the missing scheduling order is
9
presumed to support the district court’s findings. Id. Beyond that, we express no opinion on the
propriety of the arguments which rely on the deadlines set forth in the scheduling order in
evaluating a Rule 56(d) motion.
Counsel for Nipper recognized the omission from the record and conceded as much at oral
argument. Counsel explained that he would have to “walk back” some of the arguments in his
briefing because counsel failed to ensure the scheduling order was part of the record on appeal.
Considering the scheduling order’s absence from the record, counsel clarified that his argument
was simply that Nipper requested 43 additional days to respond to summary judgment and that her
request was improperly denied.
In light of counsel’s concession, and aside from referencing that Nipper only had “four and
a half (4 ½) months to provide her expert witness testimony” after receiving certain discovery from
Dr. Wootton, Nipper provides no basis for how the district court abused its discretion in denying
Nipper’s request for 43 additional days to respond to Dr. Wootton’s motion for summary
judgment. While Nipper argues at length that she participated in discovery in good faith, we need
not address that portion of the district court’s decision because the affidavit of counsel submitted
on Nipper’s behalf in support of her motion for Rule 56(d) relief fails to explain “how
postponement of a ruling on the motion will enable [her], by discovery or other means, to rebut
the movant’s showing of the absence of a genuine issue of fact.” Jenkins v. Boise Cascade Corp.,
141 Idaho 233, 239,
108 P.3d 380, 386 (2005) (quoting Allen v. Bridgestone/Firestone, Inc.,
81
F.3d 793, 797–98 (8th Cir.1996)).
Importantly, as we have explained, the party seeking Rule 56(d) relief “has the burden of
setting out ‘what further discovery would reveal that is essential to justify their opposition,’ making
clear ‘what information is sought and how it would preclude summary judgment.’ ” Id. (quoting
Nicholas v. Wallenstein,
266 F.3d 1083, 1088–89 (9th Cir. 2001)). Nipper has failed to meet this
burden. In requesting Rule 56(d) relief from Dr. Wootton’s motion for summary judgment, the
affidavit from counsel explained that:
Plaintiff intends to serve written discovery upon each Defendant to this
matter no later than Wednesday, September 2, 2020 and will notice depositions of
the individual Defendants in this matter to occur no later than the week of October
4, 2020. It is anticipated that responses to written discovery and depositions will
provide further information regarding the care and treatment provided to the
Plaintiff by the Defendants to this matter – information that is necessary to
10
determine which experts will be called by Plaintiff at trial and to finish evaluating
the care and treatment received by Plaintiff.
(Emphasis added).
Much like the generalized affidavits we disapproved of in Jenkins, this statement does not
set out “ ‘what further discovery would reveal that is essential to justify their opposition,’ making
clear ‘what information is sought and how it would preclude summary judgment.’ ” Jenkins, 141
Idaho at 239,
108 P.3d at 386 (quoting Nicholas, 266 F.3d at 1088–89). Counsel explained that he
“anticipate[d]” that there was “further information regarding the care and treatment provided” to
Nipper, but there is no indication what that information is or how that information was essential to
rebut Dr. Wootton’s expert testimony showing that Dr. Wootton complied with the community
standard of care in Nipper’s treatment. While counsel for Nipper states that additional discovery
“is necessary to determine which experts will be called” and “to finish evaluating the care and
treatment” provided to Nipper, there was no express indication that any expert can or will testify
that Dr. Wootton’s care fell below the applicable community standard of care. Nor is there any
explanation detailing what the additional discovery was expected to reveal. To the contrary,
counsel for Nipper indicated that the discovery was needed to “finish evaluating” the care and
treatment of Nipper in the first instance. This falls well short of the standard this Court set forth in
Jenkins. Notably, the affidavit fails to provide a satisfactory explanation for why, more than a year
into the case, such information had not yet been obtained.
As this Court has said, “[t]he appellant has the burden of showing the lower court abused
its discretion.” In re Prefiling Order Declaring Vexatious Litigant, 164 Idaho 771, 776,
435 P.3d
1091, 1096 (2019) (citing Lunneborg, 163 Idaho at 863,
421 P.3d at 194). Based upon the ground
for Rule 56(d) relief asserted here, we conclude that Nipper has not demonstrated how the district
court abused its discretion in denying her motion. Since it is Nipper’s burden to establish not only
that the district court erred, but also how it erred, we conclude that Nipper has failed to carry her
burden. Accordingly, we affirm the district court’s denial of Nipper’s request for Rule 56(d) relief
from Dr. Wootton’s motion for summary judgment, as well as its decision to grant summary
judgment to Dr. Wootton.
C. The district court did not abuse its discretion in denying Nipper’s second motion for
Rule 56(d) relief from Dr. Mairs’ summary judgment motion.
In challenging the district court’s denial of Nipper’s second request for Rule 56(d) relief,
this time concerning Dr. Mairs’ motion for summary judgment, Nipper argues that “the district
11
court erred when it held that no explanation was offered as to why additional time was needed to
submit a declaration from her expert in opposition to Mairs’ summary judgment motion.” Nipper
explains that “[t]he declaration of counsel submitted in support of the motion for relief specifically
set forth why a declaration of counsel could not be obtained.” In that declaration, counsel for
Nipper states:
2. On October 28, 2021 Defendant Robert A. Mairs (“Mairs”) filed a motion
for summary judgment (“Motion”) in this matter.
3. At the time the Motion was filed, I was preparing for a trial that was set
to begin on November 8, 2021 in the matter of Christensen v. Cilley in the District
Court of the Fourth Judicial District of the State of Idaho, in and for the County of
Ada, Case No. CV01-20-08032 (“Ada County Trial”).
4. The Ada County Trial was originally set for four (4) trial day[s] between
November 8, 2021 and November 17, 2021.
5. Despite the original trial setting of four (4) days, trial occurred on nine
(9) different days between November 8, 2021 and December 2, 2021.
6. I have reviewed my time entries for the Ada County Trial for the period
of October 29, 2021 (the day after Mairs’ Motion was filed) and December 2, 2021.
During this time period, I billed approximately 326.2 hours related exclusively to
the Ada County Trial.
7. Due to the extension of the Ada County Trial, I have been unable to obtain
the necessary declarations to adequately oppose Mairs’ Motion by December 13,
2021.
8. As such, on behalf of Plaintiff I am requesting a fourteen (14) day
extension of time to respond to Mairs’ Motion.
As counsel stated, the motion for summary judgment was filed on October 28, 2021. Eleven
days later, Nipper’s attorney had a trial scheduled to commence on another matter. That trial took
nine days but appears to have been spread out over 24 days. While counsel billed extensively over
that time period, based on the declaration, the trial appears to have concluded on December 2,
2021. Counsel does not address the 11 days between the end of trial and the deadline of December
13, 2021.
While counsel for Nipper asserts that “[t]he declaration of counsel submitted in support of
the motion for relief specifically set forth why a declaration [from Nipper’s expert] could not be
obtained,” it does nothing more than establish that counsel was busy during this time. The motion
offers no explanation of why, after two years, such evidence was not sought earlier. While we are
sympathetic and understanding of a trial lawyer’s busy schedule, and have no doubt that counsel
12
for Nipper was in fact busy during this time, the affidavit of counsel fails to comply with Rule
56(d) because it does not explain why the necessary testimony could not be obtained, either over
the 11 days prior to trial, over the liminal days during trial, or, most importantly, over the 11 days
after trial.
At oral argument, counsel for Nipper stressed that the district court’s statement that counsel
for Nipper had not offered “any explanation” is evidence that the district court did not review the
affidavit. In this way, Nipper argues that the district court erroneously concluded that there was no
explanation when Nipper had provided one. A fair review of the record suggests otherwise. It is
clear from the district court’s ruling that it fully considered the affidavit of counsel proffered by
Nipper in support of her request for Rule 56(d) relief. In its bench ruling, the district court made
multiple references to the contents of counsel’s affidavit. As one example, the district court
observed that there had been “no attempt to articulate what additional discovery is necessary and
how it is relevant in responding to the motion.” This is clearly indicative that the district court
properly reviewed, evaluated, and considered the affidavit offered by counsel.
Further, we do not read the district court’s statement that counsel did not offer “any
explanation” as meaning Nipper offered nothing. Instead, we read the district court’s statement as
an honest and appropriate commentary on the content of counsel’s affidavit. For example, there
was no explanation why counsel, or another attorney at his firm, could not obtain the necessary
affidavit from an expert during the unaccounted-for periods of time. Further, as with Dr. Wootton’s
earlier motion for summary judgment, there is a total absence of explanation of what the new
affidavit would include that is essential to justify Nipper’s opposition to Dr. Mairs’ summary
judgment motion, making clear what information would be included and how it would preclude
summary judgement. The only reference to expert testimony in the affidavit simply stated: “I have
been unable to obtain necessary declarations to adequately oppose Mairs’ Motion by [the summary
judgment deadline].” In sum, this explanation fails to set forth a satisfactory explanation for the
why and conspicuously lacks the necessary what and how.
While counsel explains that he was busy during some of the period in which the summary
judgment motion was pending, he does not account for substantial periods of time when the
affidavit could have been prepared. Taken together, we conclude that the district court did not
abuse its discretion in finding that the affidavit falls well below the “specified reasons”
requirement set forth in Rule 56(d) and explained in Jenkins. Contrary to Nipper’s allegations, the
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district court clearly did not “ignore[e] evidence in the record.” Instead, the district court properly
recognized, as in Jenkins, that Nipper failed to set out “ ‘what further discovery would reveal that
is essential to justify their opposition,’ making clear ‘what information is sought and how it would
preclude summary judgment.’ ” Jenkins, 141 Idaho at 239,
108 P.3d at 386 (quoting Nicholas, 266
F.3d at 1088–89).
As noted above, we have previously affirmed the denial of Rule 56(d) relief even when
counsel explained their busy schedule kept them from devoting time to the case. In Haight v. Idaho
Department of Transportation, the appellant argued “that there were circumstances justifying the
untimeliness of her request to defer summary judgment under Idaho Rule of Civil Procedure 56(d)
because a series of events affected her counsel’s ability to devote time to her case.” 163 Idaho 383,
387,
414 P.3d 205, 209 (2018). In Haight, counsel explained to the trial court a variety of
unfortunate events that befell counsel, including “lack of resources, doctor’s appointments, car
trouble, home repairs, computer problems, and other technical difficulties.” Id. at 388,
414 P.3d at
210. “The district court considered counsel’s reasons for requesting an extension of time to
complete discovery, and although sympathetic to counsel’s issues, ultimately denied the motion.”
Id. We concluded that this was not an abuse of discretion.
Id.
Ultimately, the district court in this case properly perceived the question of Rule 56(d)
relief as a matter committed to its discretion. The district court acted within the outer boundaries
of that discretion and consistent with legal standards when deciding whether to grant the requested
Rule 56(d) relief. In reaching its decision, the district court reviewed this Court’s recent precedents
and applied them to the facts of this case. Thus, the district court exercised reason by explaining
its rationale and the legal basis for its decision. As in Haight, “[t]he district court considered
counsel’s reasons for requesting an extension of time to complete discovery, and although
sympathetic to counsel’s issues, ultimately denied the motion.” 163 Idaho at 388, 414 P.3d at 210.
Therefore, because the district court satisfied all four elements of Lunneborg, we conclude that the
district court did not abuse its discretion in denying Rule 56(d) relief from Dr. Mairs’ motion for
summary judgment.
D. Attorney Fees and Costs
Dr. Mairs seeks attorney fees under Idaho Code section 12-121. He argues that “Nipper
ignored well-settled law regarding the requirements that must be established before Rule 56(d)
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relief is granted, and she has pursued this appeal in a manner that simply asked this Court to second
guess a discretionary ruling of the district court.” We agree.
As we have said, “Idaho Code section 12-121 allows the award of attorney fees in a civil
action if the appeal merely invites the Court to second guess the findings of the lower court.” Owen
v. Smith, 168 Idaho 633, 647,
485 P.3d 129, 143 (2021) (citing Bach v. Bagley,
148 Idaho 784,
797,
229 P.3d 1146, 1159 (2010)). Since Nipper’s appeal is essentially an invitation to second
guess the district court’s findings and use of its discretion, we conclude Nipper’s appeal from the
district court’s grant of summary judgment to Dr. Mairs has been “brought, pursued or defended
frivolously, unreasonably or without foundation.” I.C. § 12-121. Accordingly, we award attorney
fees to Dr. Mairs under Idaho Code section 12-121.
Dr. Wooton did not request attorney fees on appeal. However, both Dr. Mairs and Dr.
Wootton request costs on appeal. Both having prevailed, costs are awarded to Dr. Wootton and
Dr. Mairs as a matter of course pursuant to Idaho Appellate Rule 40(a).
IV. CONCLUSION
The judgment of the district court is affirmed. Attorney fees are awarded to Dr. Mairs
pursuant to Idaho Code section 12-121. Costs are awarded to Dr. Mairs and Dr. Wootton.
Chief Justice BEVAN, Justices BRODY, ZAHN, and Justice Pro Tem BASKIN
CONCUR.
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