United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' REQUEST FOR ADDITIONAL
DISCOVERY UNDER RULE 56(D)
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion for
Partial Summary Judgment [Doc. 149], filed on March 8, 2019.
Defendants responded on March 22, 2019, by filing a
Declaration under Federal Rule of Civil Procedure 56(d).
[Doc. 157]. Plaintiff replied on March 28, 2019. [Doc. 158].
The Court held oral argument on April 17, 2019. [Doc. 169]
(Clerk's Minutes). The Court has considered the briefing,
oral argument, the relevant portions of the record, and the
relevant law. Being otherwise fully advised in the premises,
the Court will GRANT IN PART and
DENY IN PART Defendants' request for
additional discovery and will set a briefing schedule on the
2013 to 2016, Defendant New Mexico General Services
Department (“GSD”) employed Plaintiff as an IT
Generalist 2. [Doc. 94] at 3 (Third Amended Complaint). GSD
employed Defendant Angela Dawson as its Human Resources
Bureau Chief. [Doc. 149-2] at 18. While Plaintiff was
employed at GSD, she requested either intermittent or
full-time leave under the Family and Medical Leave
Act (“FMLA”) at least five times. She claims that
she needed FMLA leave after suffering from breast cancer and
leg injuries after a ski accident. [Doc. 149] at 4-10.
Plaintiff alleges that Defendants took myriad actions that
interfered with her use of FMLA leave. Id. at 4-27.
A detailed recounting of these actions is not necessary to
dispose of the instant matter. Broadly speaking, Plaintiff
alleges that, from 2014-2016, Defendants committed numerous
violations of the FMLA's notice requirements, created
significant administrative hurdles to approval of her leave
requests, attempted to fire her because her illness prevented
her from performing the essential functions of her job, and
improperly denied her leave to which she was entitled.
filed suit in New Mexico state court on April 21, 2016. [Doc.
1-2] at 1. Defendants removed the case to this Court on May
23, 2016. [Doc. 1]. On July 11, 2018, Plaintiff filed her
Third Amended Complaint. [Doc. 94]. She alleges in Count IV
that Dawson, in her individual capacity, interfered with her
use of FMLA leave. Id. at 34-36. Count IV does not
pertain to any other Defendant. See Id. Count IV also
contains an FMLA-retaliation claim. See id.
Plaintiff filed her Third Amended Complaint, the parties have
engaged in limited discovery, and the case has been plagued
by various discovery disputes. Plaintiff served her First
Request for Production on October 16, 2018. [Doc. 107].
Plaintiff and Defendants served their initial disclosures on
October 30, 2018. [Docs. 109, 110]. The Honorable Kirtan
Khalsa, United States Magistrate Judge, entered her
Scheduling Order on November 15, 2018, ordering discovery to
terminate on May 2, 2019. [Doc. 118] at 2. Defendants moved
for a confidentiality order on November 29, 2018, [Doc. 124],
and Plaintiff moved to compel production of certain documents
and files on December 5, 2018, [Doc. 127]. Judge Khalsa
denied Plaintiff's Motion to Compel on February 27, 2019.
[Doc. 148]. On March 8, 2019, Plaintiff filed the instant
Motion for Partial Summary Judgment. [Doc. 149]. Judge Khalsa
entered a Confidentiality Order over Plaintiff's
objection on March 13, 2019. [Doc. 152].
parties filed a Joint Motion to Extend Case Management
Deadlines on March 15, 2019. [Doc. 153]. They agreed that,
though they have exchanged some written discovery and they
“are supplementing that discovery as required by Rule
26(e), ” the Court should extend the discovery deadline
so that Plaintiff-presently a law student-could finish her
final semester of law school and then prepare for and take
the New Mexico Bar Exam. Id. at 2. The parties had
not yet scheduled the depositions of Plaintiff, Defendant
Karen Baltzley, and Dawson. Id. They also
anticipated “that additional depositions may need to be
set, but that such scheduling cannot occur until after
Plaintiff completes the bar exam.” Id.
Finally, the parties requested a stay from May 20, 2019, to
August 5, 2019, so that Plaintiff could study for and take
the New Mexico Bar Exam. Id. at 2-3.
Khalsa granted the Joint Motion on March 18, 2019. [Doc.
154]. Discovery now terminates on November 4, 2019, with
discovery motions due by November 25, 2019. Id. at
1. The Court also granted the requested stay. Id. at
filed their Federal Rule of Civil Procedure 56(d) Declaration
in response to Plaintiff's Motion for Partial Summary
Judgment on March 22, 2019. [Doc. 157]. According to
Defendants, though the parties have exchanged their first
sets of interrogatories and requests for production, they
“have not yet conducted [any] depositions.”
Id. at 2. Neither have Defendants served any
contention interrogatories relating to Plaintiff's FMLA
April 2, 2019, Judge Khalsa ruled on various outstanding
discovery disputes. [Doc. 163]. The parties disputed the
production of certain documents and releases for
Plaintiff's medical records. Judge Khalsa ordered
Plaintiff to produce certain documents requested by
Defendants and ordered defense counsel to send Plaintiff
medical-records releases that she must execute. Id.
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 court must deny summary judgment if a
reasonable jury could find for the non-movants. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
applying this standard, the court must construe the evidence
in the light most favorable to the non-moving parties.
Tolan v. Cotton, 572 U.S. 650, 657 (2014).
pleadings are interpreted liberally, see Swoboda v.
Dubach, 992 F.2d 286, 289 (10th Cir. 1993), but must
comply with the basic requirements of the Federal Rules of
Civil Procedure. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008) (quoting Ogden v. San Juan
Cty., 32 F.3d 452, 455 (10th Cir. 1994)).
Rule 56(d), “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may,
” in its discretion, defer considering the motion, deny
the motion, allow time to take discovery, or issue any other
appropriate order. Fed.R.Civ.P. 56(d). “The general
principal of Rule 56(d) is that ‘summary judgment
[should] be refused where the nonmoving party has not had the
opportunity to discover information that is essential to his
opposition.'” Price ex rel. Price v. W. Res.,
Inc., 232 F.3d 779, 783 (10th Cir. 2000) (alteration in
original) (quoting Anderson, 477 U.S. at 250 n.5).
To properly invoke the Court's discretion, the movant
must submit an affidavit “(1) identifying the probable
facts that are unavailable, (2) stating why these facts
cannot be presented without additional time, (3) identifying
past steps to obtain evidence of these facts, and (4) stating
how additional time would allow for rebuttal of the
adversary's argument for summary judgment.”
Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th
Cir. 2017). Additionally, the information sought cannot be
irrelevant or cumulative, and the declarant cannot have acted
dilatorily in obtaining the information. Jensen v.
Redevelopment Agency of ...