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Vigil v. Delfin

United States District Court, D. New Mexico

January 12, 2018

RYAN VIGIL, Plaintiff,
v.
ANTHONY DELFIN, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         I. Background

         Plaintiff 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.

         II. Standard of Review

         Federal 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).

         When, 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 See Gomez v. Martin, 593 F. App'x 756, 760 (10th Cir. 2014) (unpublished)[1](quoting Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001).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.

         “A 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.

         III. Analysis

         Plaintiff seeks discovery related to four categories of information. The Court will address the discovery requests for each category in turn.

         1. “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”

         As 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.

         Plaintiff 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.

         2. “Brief depositions of Defendants Delfin and Tudor limited to the issue of when they became aware of the fraud allegations against Mr. Vigil

         In 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 ...


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