United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING SUMMARY
MATTER comes before the Court on the Opposed Motion for
Summary Judgment (Doc. 92), filed by Defendant Simon Property
Group, Inc. on April 9, 2018, and the Opposed Motion to
Compel Discovery Responses (Doc. 86), filed by Plaintiffs
Anwar Greene (“Greene”) and Lee Gibson
(“Gibson”) on March 30, 2018. Pursuant to 28
U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have
consented to me serving as the presiding judge and entering
final judgment. Docs. 7, 14, 15, 16. Having considered the
parties' arguments, exhibits and all relevant authority,
the Court will grant Defendant's Motion for Summary
Judgment and deny Plaintiffs' Motion to Compel.
action arises from Plaintiffs' employment at Cottonwood
Mall, where both men worked in maintenance from June 2008 to
December 2014. Both during and after their employment,
Plaintiffs filed numerous charges of discrimination and then
filed suit in state court on January 5, 2016. Doc. 1-1. SPG,
Inc. removed the action to federal court on March 24, 2016.
Doc. 1. Plaintiffs amended their Complaint on April 26, 2016
(Doc. 13) and then again on September 30, 2016 (Doc. 40). The
Second Amended Complaint named as defendants SPG, Inc. and
individuals Scott Wides and Russell Little. Because
Plaintiffs never served Defendants Wides and Little, the
Court dismissed them from this action (Doc. 96), which now
leaves SPG, Inc. as the sole remaining Defendant.
Second Amended Complaint asserts five claims for relief: (1)
hostile work environment, (2) retaliation, (3) whistleblower,
(4) vicarious liability, and (5) principles of equity. Doc.
40. Defendant SPG, Inc. filed a first Motion for Summary
Judgment on January 10, 2017. Doc. 44. On review, this Court
limited its inquiry to the issues of exhaustion of remedies
and timeliness of the claims based upon Plaintiffs'
charges of discrimination filed with the United States Equal
Employment Opportunity Commission (“EEOC”) and
the New Mexico Human Rights Bureau (“NMHRB”). In
so doing, the Court dismissed all claims in Count I and II of
the Second Amended Complaint, except for Plaintiff
Gibson's retaliation claim in Count II insofar as it is
based on the allegations of his Fourth Charge of
Discrimination filed April 21, 2015. The Court declined to
address claims alleged in Count III (whistleblower), Count IV
(vicarious liability), and Count V (principles of equity)
until such time that the parties had the opportunity to
engage in further discovery and better formulate their
arguments. Defendant SPG, Inc. has now filed a second motion
for summary judgment on all remaining claims on several
grounds, including that Defendant SPG, Inc. did not employ
Plaintiffs at any time. Plaintiffs, on the other hand, seek
to compel further discovery responses from Defendant SPG,
Inc. in an effort to create a genuine issue of fact as to
whether Defendant was indeed Plaintiffs' employer.
PLAINTIFFS' MOTION TO COMPEL
their untimely Motion to Compel, Plaintiffs seek to have
Defendant supplement its discovery response “in each
instance where [it] asserts: (a) that SPG was not
Plaintiffs' employer, and (b) that earliest EEOC charges
are not relevant.” Doc 86 at 2. As to the first issue,
Defendant objected to many of Plaintiffs' discovery
requests on the basis that the named defendant, Simon
Property Group, Inc., was not Plaintiffs' employer.
Rather, Defendant asserts that Simon Property Group, L.P.
employed Plaintiffs. As such, Defendant SPG, Inc. interposed
relevancy objections to many of the discovery requests. The
Motion to Compel is a transparent attempt to give rise to a
Court declaration that SPG, Inc. was in fact Plaintiffs'
employer. But as discussed in detail below in the context of
summary judgement, Plaintiffs fail to come forward with
evidence upon which a rational fact finder could conclude
that Defendant SPG, Inc. was the employer. Thus, the Court
will not overrule the relevancy objections or require
Defendant to supplement its responses.
the second issue, Defendant objected to discovery questions
about Plaintiffs' earlier EEOC charges of discrimination,
asserting that such information is not relevant. Plaintiffs,
on the other hand, assert that the information is relevant
because “the first EEOC complaints establish the
factual basis for the retaliation and whistleblowing claims
at issue in this lawsuit.” Doc. 86 at 6.
discovery request is considered relevant if there is
‘any possibility' that the information sought may
be relevant to the claims or defense of any party.”
Zuniga v. Bernalillo Cty., No. CIV 11-877 RHS/ACT,
2013 WL 12333609, at *4 (D.N.M. Jan. 10, 2013) (citing
Cardenas v. Dorel Juvenile Grp., Inc., 232 F.R.D.
377, 382 (D. Kan. 2005)). Here, the Court previously
dismissed all claims of hostile work environment and
retaliation stemming from Plaintiffs' EEOC charges of
discrimination, save Plaintiff Gibson's fourth and last
charge of discrimination. See Doc. 55. Because the only
retaliation claim that survived the first motion for summary
judgment relates to Gibson's last EEOC charge,
information on the earlier charges is irrelevant to any
remaining claim. Additionally, Plaintiffs' whistleblower
claim is premised on alleged retaliation in response to
Plaintiffs' workplace safety complaints; it is not based
on the same conduct that they listed in their EEOC charges.
Plaintiffs, therefore, fail to demonstrate any relevancy for
the requested information. For all these reasons, their
Motion to Compel will be denied.
SPG, Inc. requests attorney fees pursuant to Federal Rule of
Civil Procedure 37(a)(5)(B). Rule 37(a)(5)(B) requires that
if a court denies a motion to compel, it must order the
movant, the attorney filing the motion, or both, after giving
them an opportunity to be heard, to pay the party opposing
the motion its reasonable expenses incurred in opposing the
motion. The court “must not order this payment if the
motion was substantially justified or other circumstances
make an award of expenses unjust.” Fed.R.Civ.P.
discussed in detail below, the Court finds that Defendant
SPG, Inc. was not entirely forthcoming as to the entity that
actually employed Plaintiffs. In fact, when Plaintiffs
initially asked Defendant SPG, Inc. to supplement its
discovery responses on February 15, 2018 (Doc. 86 at 13),
Defendant SPG, Inc. requested an extension of time to provide
supplemental responses (id. at 12). It then waited until
March 23, 2018, to confirm that it would not provide
additional information, based in part because of its
assertion that it was not Plaintiffs' employer (id. at
10). This may not excuse Plaintiffs' untimely filing of
their Motion to Compel, but it does further illuminate
Plaintiffs' frustrations: If Defendant SPG, Inc.
continually and clearly maintained it was not Plaintiffs'
employer, why did it ask for an extension to supplement its
responses when its eventual response was merely to re-state
it was not Plaintiffs' employer? Accordingly,
Plaintiffs' Motion to Compel, stemming from that apparent
frustration, was substantially justified, and the Court will
not award attorney fees to Defendant.
PLAINTIFFS' RULE 56(d) REQUEST
response to Defendant's Motion for Summary Judgment,
Plaintiffs request additional discovery under Rule 56(d).
Federal Rule of Civil Procedure 56(d), formerly Rule 56(f),
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
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. Third, the declaration must specify “what
steps have been taken to obtain these facts.”
Id. (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
their Rule 56(d) request, Plaintiffs make virtually the same
arguments as in their motion to compel discussed above
regarding the employing entity. Specifically, Plaintiffs
contend that they “should not be expected to fully and
adequately present facts essential to justify [their]
opposition to Defendant SPG's motion for summary judgment
where Defendant has failed to provide discovery responses on
the basis they were allegedly not Plaintiffs'
employer.” Doc. 100 at 4. However, this argument does
little more than assert that discovery is incomplete.
Plaintiffs have not provided an affidavit or declaration as
required by Rule 56(d). It is well established that
“counsel's unverified assertion in a memorandum
opposing summary judgment does not comply with Rule 56[d] and
results in waiver.” Price ex rel. Price v. W. Res.,
Inc., 232 F.3d 779, 783 (10th Cir. 2000) (citing Comm.
for the First Amendment v. Campbell, 962 F.2d 1517,
1522 (10th Cir. 1992)).
even broadly construing Plaintiffs' argument regarding
missing discovery and their motion to compel as meeting the
first three requirements under Rule 56(d), Plaintiffs fail to
show how additional discovery will help rebut Defendant's
Motion for Summary Judgment. Plaintiffs' response to the
Motion for Summary Judgment focuses solely on rebutting
Defendant SPG, Inc.'s position that SPG, L.P. was
Plaintiffs' employer. This response ignores additional
arguments by Defendant SPG, Inc. as to why it is not liable
under any of Plaintiffs' theories of recovery, even if
one assumes Defendant SPG, Inc. to have been Plaintiffs'
employer. Plaintiffs offer no explanation as to how
additional discovery would help rebut any of those additional
arguments or how supplemental discovery will lead to a
genuine issue of material fact. Accordingly, the Court will
deny Plaintiffs' Rule 56(d) request to defer ruling on
the Motion for Summary Judgment in order to allow additional
time for discovery.
SUMMARY JUDGMENT STANDARD
to Federal Rule of Civil Procedure 56, “[t]he court
shall 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.”
Fed.R.Civ.P. 56(a). A movant that will not bear the burden of
persuasion at trial, here Defendant, can meet this burden by
“pointing out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
671 (10th Cir. 1998). The burden then shifts to the
nonmovant, here Plaintiffs, to set forth specific facts
“from which a rational trier or fact could find for the
nonmovant.” Id. “Summary judgment is not
‘a disfavored procedural shortcut but rather [it is] an
integral part of the Federal Rules as a whole, which are
designed to secure the just, speedy, and inexpensive
determination of every action.'” Garcia v.
Vilsack, 628 F.Supp.2d 1306, 1308-09 (D.N.M. 2009)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327
applying this standard, the Court examines the factual record
and reasonable inferences therefrom in the light most
favorable to the party opposing summary judgment.”
Hartwell v. Sw. Cheese Co., L.L.C., No. CV 15-1103
JAP/GJF, 2017 WL 944125, at *2 (D.N.M. Jan. 23, 2017). In
this District, “[a]ll material facts set forth in the
Memorandum will be deemed undisputed unless specifically
controverted.” D.N.M.LR-Civ. 56.1(b). Rather than
disputing the material facts set forth by SPG in its Motion,
Plaintiffs' response solely asks this Court to defer
consideration and allow additional time for discovery. See
Doc. 100. Because the Court denies that request, it will deem
Defendant's material facts undisputed and finds that