United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion
for Limited Discovery Pursuant to Rule 56(d), filed October
16, 2017. Doc. 24. The Court will GRANT in part and DENY in
part Plaintiff's request for limited discovery.
has sued Defendants for damages and injunctive relief based
on Defendants' refusal to employ him for the 2015 fire
season forward as a wildlands firefighter. Doc. 1-2.
Defendants have moved for summary judgment and a stay of
discovery on the basis of qualified immunity. Docs. 18, 19.
On October 6, 2017, the Court granted Defendants' motion
for a stay of discovery. Doc. 23. On October 16, 2017,
Plaintiff filed the motion for limited Rule 56(d) discovery
now before the Court. Doc. 24.
Standard of Review
Rule of Civil Procedure 56(d) allows for limited discovery
relating to a motion for summary judgment “when facts
are unavailable to the nonmovant.” Fed.R.Civ.P. 56(d).
The Rule is based on the general principle that
“summary judgment [should] be refused where the
nonmoving party has not had the opportunity to discover
information that is essential to his opposition.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
n.5 (1986). Although Rule 56(d) enables a party to obtain
discovery in order to respond to a motion for summary
judgment, it “is not a license for a fishing
expedition, especially when summary judgment is urged based
on a claim of qualified immunity.” Lewis v. Ft.
Collins, 903 F.2d 752, 759 (10th Cir. 1990).
as here, a party has asserted the qualified immunity defense,
the nonmoving party's burden under Rule 56(d) is elevated
because government officials have “a right, not merely
to avoid standing trial, but also to avoid the burdens of
such pretrial matters as discovery.” See Gomez v.
Martin, 593 F. App'x 756, 760 (10th Cir. 2014)
(unpublished)(quoting Medina v. Cram, 252 F.3d
1124, 1127 (10th Cir. 2001). Nevertheless, “limited
discovery [under Rule 56(d)] may sometimes be necessary
before the district court can resolve a motion for summary
judgment based on qualified immunity.” Id. at
760-61 (quoting Crawford-El v. Britton, 523 U.S.
574, 593 n. 14 (1998)); See also Weise v. Casper,
507 F.3d 1260, 1265 (10th Cir. 2007) (reasoning that
“it is well established that limited discovery may be
necessary to resolve qualified immunity claims on summary
judgment.”). However, “until the threshold
[qualified] immunity question is determined, discovery shall
be limited to that issue alone.” Lewis, 903
F.2d at 754.
party seeking to defer a ruling on summary judgment under
Rule 56[d] . . . must ‘file an affidavit that
explain[s] why facts precluding summary judgment cannot be
presented. This includes identifying the probable facts not
available and what steps have been taken to obtain these
facts.'” Libertarian Party of N.M. v.
Herrera, 506 F.3d 1303, 1308 (10th Cir. 2007) (quoting
Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir.
2006)). Having identified the unavailable facts and the steps
taken to obtain them, the party must then “show how
additional time will enable him to rebut [the] movant's
allegations of no genuine issue of material fact.”
F.D.I.C. v. Arciero, 741 F.3d 1111, 1116 (10th Cir.
2013) (quoting Trask, 446 F.3d at 1042). In the
qualified immunity context, the plaintiff is required to
demonstrate through the Rule 56(d) affidavit “how
discovery will raise a genuine fact issue as to [the
defendant's] qualified immunity claim.”
Lewis, 903 F.2d at 758.
seeks discovery related to four categories of information.
The Court will address the discovery requests for each
category in turn.
“Deposition testimony from Mr. Pino about two
items: His conversations with Mr. Vigil as set out in Mr.
Vigil's Complaint and Affidavit to help support the
property interest claim, and Mr. Pino's hiring practices
as set out in the Complaint at paragraphs 20, 26 and 28 and
Mr. Vigil's Affidavit”
Plaintiff explains, Eugene Pino was the District Fire Manager
for the Las Vegas District. Doc. 25 at 3. Plaintiff asserts
that Mr. Pino would testify (1) that he “assured
[Plaintiff] that [his] contract would be renewed”; (2)
that Plaintiff “would continue to be employed as an
EF/AD for the Las Vegas District”; (3) about his hiring
practices which “would also help establish mutual
expectation of that interest by explaining that Mr.
Vigil's contract would have been renewed for the 2015 and
subsequent fire seasons except for the interference by
Defendants”; and (4) that “[o]nce firefighters
were hired for one fire season, they were always rehired each
subsequent season they applied for.” Doc. 25 at 4.
does not allege, however, that Mr. Pino would establish that
he actually entered into a contract with Plaintiff for the
2015 fire season. Further, although Plaintiff asserts that
Mr. Pino “had sole authority to hire Emergency
Firefighters . . .” (Doc. 25 at 3), Plaintiff's
claims are premised on his allegation that, despite Mr.
Pino's desire to hire Plaintiff, Defendants refused to do
so. See Doc. 1-2 at ¶ 29 (“Defendants
continued to forbid the Districts from hiring Mr.
Vigil.”); id. at ¶ 43, 47 (Defendants
deprived Plaintiff of his entitlement to an Emergency
Firefighter positions in 2016 and 2017); id. at
¶ 58 (Defendants “have prevented Mr. Vigil from
engaging in his profession of wildfire fighting within the
State of New Mexico and in other fire districts around the
country”). Additionally, Defendants' motion for
summary judgment is not premised on an argument that they
were not involved in the decision to decline to employ
Plaintiff for fire seasons 2015 and beyond. Doc. 18 at 6-8.
Rather, Defendants argue that, as a matter of law, Plaintiff
had no property interest in being hired for those fire
seasons. Id. Because the testimony Plaintiff hopes
to obtain from Mr. Pino does not bear on resolution of this
legal issue and because Rule 56(d) has an elevated standard
in qualified immunity cases, the Court denies Plaintiff's
request to depose Mr. Pino.
“Brief depositions of Defendants Delfin and Tudor
limited to the issue of when they became aware of the fraud
allegations against Mr. Vigil”
asserting that he has a property interest in continued
employment as an Emergency Firefighter, Plaintiff argues that
his 2014 contract provided certain fact-finding procedural
due process rights and that, in an effort to deny him
fact-finding due process to which he was entitled, Defendants
intentionally waited until after the 2014 fire season was
over to make their factual findings. Doc. 25 at 4-5. Further,
Defendants assert as an undisputed material fact
that complaints about Plaintiff “came to the
division's attention after he was no longer employed and
after the fire season.” Doc. 18 at 3. Thus, the ...