Lexington Insurance Company, a Delaware Corporation, Plaintiff,
Scott Homes Multifamily, Inc., an Arizona corporation; and Silverbell 290 Limited Partnership, an Arizona Limited Partnership, Defendants. Silverbell 290 Limited Partnership, an Arizona Limited Partnership, individually and as the assignee of Defendant Scott Homes Multifamily, Inc., Counterclaimants,
Lexington Insurance Company, a Delaware corporation, Counterdefendant.
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Defendant/Counterclaimant Silverbell 290 Limited Partnership's Notice of Motion and Rule 56(d) Motion to Continue Lexington Insurance Company's Motion for Summary Judgment (Doc. 58). The Court now rules on the Motion.
On October 8, 2012, Plaintiff filed a complaint against Defendants. (Doc. 1). On October 31, 2012, Defendant Silverbell filed counterclaims against Plaintiff. (Doc. 10). On February 19, 2013, this Court held a Rule 16 Scheduling Conference and set the discovery deadline as February 7, 2014 and the dispositive motion deadline as April 18, 2014. (Doc. 40). On June 17, 2013, Plaintiff filed a Motion for Summary Judgment. In its Motion for Summary Judgment, Plaintiff argues that its excess insurance policy (the "excess policy") has not been triggered in this lawsuit because the excess policy requires that all primary insurance be exhausted before excess coverage is available. Plaintiff argues that summary judgment is appropriate because: (1) the Evanston Policy has not been exhausted, (2) all underlying limits applicable to Scott Homes' liability arising out of the work of American, Labrum, and Paramount have not been exhausted, and (3) the amounts of individual judgments awarded against Scott Homes for the work of Design, Gypsum, Littleton, and Structural I are not covered under the excess policy.
In response, Defendant Silverbell seeks relief pursuant to Federal Rule of Civil Procedure 56(d). Silverbell argues that additional fact discovery is necessary before it can respond to Plaintiff's Motion for Summary Judgment. As a result, Silverbell requests a "realistic opportunity to pursue discovery relating to its theory of the case and defenses."
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56(d),
When Facts Are Unavailable to the Nonmovant. 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).
Where "a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56[d] motion fairly freely." Burlington Northern Santa Fe R&R, Co. v. Assiniboine and Sioux Tribes, 323 F.3d 767, 773-74 (9th Cir. 2003) (internal citations omitted). The party requesting Rule 56(d) relief must show that: "(1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment." Family Home and Fin. Ctr., Inc. v. Fed. Home Loan Mortgage Corp., 525 F.3d 822, 827 (9th Cir. 2008) (internal ...