United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING RELIEF PURSUANT
TO PLAINTIFF'S RULE 56(d) DECLARATION
MATTER comes before the Court on Plaintiff's Declaration
of Geoffrey H. Baskerville Pursuant to Fed.R.Civ.P. 56(d)
(“Declaration”) (Doc. 46), filed
September 26, 2017, in response to Defendant's Motion for
Summary Judgment (Doc. 42), filed September 5, 2017.
Having reviewed the parties' submissions and all
pertinent authority, the Court will deny Plaintiff's
request for additional discovery prior to ruling on the
Motion for Summary Judgment.
2015, Plaintiff applied for a job with Defendant Stockton, a
staffing agency, for placement at DirectTV. As part of the
application, Defendant requested and received a consumer
report concerning Plaintiff. Based on the report, Defendant
notified Plaintiff that he was not approved for the position.
Plaintiff then brought this suit, asserting Defendant
violated the Fair Credit Reporting Act (“FCRA”)
by failing to provide him a copy of the consumer report prior
to taking adverse action.
September 5, 2017, Defendant filed a Motion for Summary
Judgment, arguing the job Plaintiff applied for was that of
an independent contractor, not an employee, and the FCRA does
not apply to independent contractors. Doc. 42.
Plaintiff filed a Rule 56(d) Declaration in response,
asserting he needs more discovery in order to respond to the
Motion for Summary Judgment. Doc. 46. In particular,
Plaintiff asserts he needs more information on
“[w]hether Defendant is a user of information for
employment purposes under the FCRA, ” and
“[w]hether the position that Plaintiff applied for
entailed the type of conduct and duties that are, in fact,
consistent with an employee rather than an independent
contractor.” Id. at 2.
Rule of Civil Procedure 56(d), formerly Rule 56(f), 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
declaration or to take discovery; or (3) issue any other
Fed. R. Civ. P. 56(d). The non-movant has the burden to show
that additional discovery is necessary. Martin v. Cty. of
Santa Fe, 626 Fed.Appx.. 736, 740 (10th Cir. 2015).
Rule 56(d) requests are generally treated liberally,
Lewis v. City of Ft. Collins, 903 F.2d 752, 758
(10th Cir. 1990), the Tenth Circuit has held that a
declaration must meet four requirements, Valley Forge
Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d
1086, 1096 (10th Cir. 2010). First, the declaration must
identify “the probable facts not available.”
Id. (citation omitted). Second, the declaration must
state “why those facts cannot be presented
currently.” Id. That the movant has exclusive
control over the needed information weighs in favor of 56(d)
relief; however, exclusive control is just one factor and
does not grant automatic relief. Price ex. rel. Price v.
W. Res., Inc., 232 F.3d 779, 783-84 (10th Cir. 2000).
Third, the declaration must specify “what steps have
been taken to obtain these facts.” Valley Forge
Ins. Co., 616 F.3d at 1096 (citation omitted). And
fourth, the declaration must explain “how additional
time will enable [the party] to obtain those facts and rebut
the motion for summary judgment.” Id. “A
party may not invoke Fed.R.Civ.P. 56[(d)] by merely asserting
that discovery is incomplete or that specific facts necessary
to oppose summary judgment are unavailable. Rather, the party
must demonstrate precisely how additional discovery will lead
to a genuine issue of material fact.” Ben Ezra,
Weinstein, & Co., Inc., v. Am. Online Inc., 206 F.3d
980, 987 (10th Cir. 2000).
fails to meet his burden of demonstrating why facts
precluding summary judgment cannot be presented.
Plaintiff's Declaration does generally identify the
probable facts not available. He maintains that he needs more
information on whether Defendant is a “user of
information” and whether the position Plaintiff applied
for was that of an employee, not an independent contractor.
Doc. 46 at 2. However, Plaintiff's Declaration
neither shows why those facts cannot be presented currently
nor steps he took to obtain the needed information. Rather,
he merely states that discovery is ongoing, and the
information is in Defendant's sole possession. Doc.
46 at 4. Rule 56(d) relief may be appropriate if the
requested information is in Defendant's possession.
However here, even as Plaintiff correctly points out,
discovery was still open when Plaintiff filed his Declaration
on September 26, 2017. Plaintiff could have requested the
needed information from Defendant long before the close of
fact, Defendant responded to Plaintiff's first set of
Interrogatories and Request for Production on August 10, 2017
and included answers to questions similar to those in the
Declaration. See Docs. 35; 51 at 2-3. If
Defendant's responses were deficient, Plaintiff had 21
days under Local Rule 26.6 to file a motion to compel, which
he did not. See D.N.M.LR-Civ. 26.6. Indeed, it
appears that Plaintiff failed to send any follow-up discovery
or set any depositions, and Plaintiff's Declaration makes
no mention of any steps he took to discover the needed
information. Again, simply asserting that discovery is
ongoing, and therefore incomplete, is insufficient to obtain
relief under Rule 56(d). See Ben Ezra, Weinstein, &
Co., Inc., 206 F.3d at 987.
Plaintiff's Declaration does not explain how additional
discovery will help him rebut defenses raised by Defendant.
As mentioned above, Plaintiff vaguely identifies that the
information he needs to preclude summary judgment goes to the
eight Restatement (Second) of Agency factors used for
determining if a person is an employee or independent
contractor. Doc. 46 at 2-3. However, Plaintiff does
not precisely demonstrate how additional information on those
eight factors will refute the defense that Plaintiff's
sought position was that of an independent contractor.
Further, Plaintiff believes he needs more information on
whether Defendant was a “user of information, ”
but he does not explain why being a user of information would
create a genuine issue of material fact. Doc. 46 at
2. In sum, Plaintiff's Declaration falls short of
providing specific reasons why he cannot now present evidence
precluding summary judgment nor how sought information he
does identify would be helpful in precluding summary
IT IS HEREBY ORDERED that Plaintiff's
Declaration of Geoffrey H. Baskerville Pursuant to Fed. R.
Civ. P 56(d) (Doc. 46), requesting discovery and a
deferral of ...