United States District Court, D. New Mexico
SHARIF A. and SAMIA RABADI, Plaintiffs,
D R HORTON, INC., a Delaware Corporation, Defendant.
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
EXTENSION OF TIME
MATTER comes before the Court on Plaintiffs' Opposed
Motion for Extension of Time (Doc. 24), filed March
29, 2018. Having reviewed the parties' submissions and
all pertinent authority, the Court will deny Plaintiffs'
request for additional discovery prior to ruling on the
Motion for Summary Judgment.
case arises from a dispute over the purchase of impact fee
credits associated with the sale of building lots. Plaintiffs
filed their Complaint in state court and Defendant removed it
to federal court on November 8, 2017. Doc. 1. This
Court entered a Scheduling Order on January 18, 2018,
requiring discovery to be completed by July 18, 2018.
Doc. 17. On March 9, 2018, Defendant filed a Motion
for Summary Judgment. Doc. 21. In response,
Plaintiffs filed an Opposed Motion for Extension of Time,
requesting an extension of time to respond to the Motion for
Summary Judgment until fourteen days after discovery is
completed. Doc. 24 at 1.
initially frame their Motion for Extension of Time as a
simple request for an extension of time to respond to the
Motion for Summary Judgment. Doc. 24 at 1 (noting
they were out of town for funerals and did not return until
after the deadline to respond had passed). Defendant notes
that it is not opposed to “a limited extension of time
for Plaintiffs to respond to the Motion for Summary Judgment
. . . .” Doc. 25 at 2. However, Plaintiffs
later request that they not be required to respond to the
Motion for Summary Judgment until all discovery is completed
(Doc. 24 at 2), which Defendant does oppose
(Doc. 25 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 F. App'x. 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 request
must meet four requirements, Valley Forge Ins. Co. v.
Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096
(10th Cir. 2010). First, the affidavit must identify
“the probable facts not available.” Id.
(citation omitted). Second, the affidavit must state
“why those facts cannot be presented currently.”
Id. A movant's 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
affidavit 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
affidavit 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).
Court liberally construes Plaintiffs' pro se pleadings
and holds them “to a less stringent standard than
formal pleadings drafted by lawyers.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005) (citing Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (internal citation omitted)). The Court
may not, however, “serv[e] as the litigant's
attorney in constructing arguments and searching the
record.” Id. (citation omitted).
put, Plaintiffs fail to meet their burden of demonstrating
why facts precluding summary judgment cannot be presented.
While Plaintiffs did submit an affidavit with their reply
brief, it merely lists the facts underlying the case, many of
which are the same facts presented in the Complaint.
Compare Doc. 26-1, with Doc. 1 at 5.
Plaintiffs explain that the issue in this case is
“whether or not a contract should be found existing
between the Parties for the assignment of impact fee credits
. . .” (Doc. 26 at 2), and they seek to depose
the “primary witnesses, ” Patrick Lesley, Mr.
Anderson, and D.R. Horton's president (Docs. 26
at 2; 24 at 4).
liberally construing their statement of facts in the
affidavit as identification of probable facts not available,
Plaintiffs have not met the other requirements under Rule
56(d). They have not shown why facts precluding summary
judgment cannot be presented currently, what steps they have
taken to obtain these facts, or how additional time will
enable them to rebut summary judgment. A mere assertion that
there are “unresolved issues of fact” (Doc.
26 at 2, ¶ 6) is not sufficient to invoke Rule
56(d). See Ben Ezra, Weinstein, & Co., Inc., 206
F.3d at 987. Thus, Plaintiffs' affidavit falls short of
providing specific reasons why they cannot now present
evidence precluding summary judgment nor how additional
discovery would be helpful in precluding summary judgment.
IT IS HEREBY ORDERED that Plaintiffs'
Opposed Motion for Extension of Time (Doc. 24) is
denied to the extent the Plaintiffs seek an
extension of time to respond to the ...