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Greene v. Simon Property Group, Inc.

United States District Court, D. New Mexico

September 29, 2018



         THIS 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.


         This 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.

         The 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.


         In their untimely[1] 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.

         As to 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.

         “A 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.

         Defendant 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. 37(a)(5)(B).

         As 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.


         In 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), provides that

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 appropriate order.

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).

         While 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 Cir. 2000).

         In 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.

         Importantly, 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)).

         Further, 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.


         Pursuant 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 (1986)).

         “When 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 ...

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