United States District Court, D. Arizona
Leslie A. Merritt, Jr., Plaintiff,
State of Arizona; Maricopa County; Bill Montgomery, Maricopa County Attorney; Heston Silbert; Christopher Kalkowski; Frank Milstead; Ken Hunter; Kelley Heape; Jennifer Pinnow; and Anthony Falcone, Defendants.
G. Campbell United States District Judge
action arises out of Plaintiff's arrest, incarceration,
and attempted prosecution for the much-publicized I-10
freeway shootings. Plaintiff asserts multiple claims for
relief, including false arrest, false imprisonment, malicious
prosecution, negligence, intentional infliction of emotional
distress, and aiding and abetting. Doc. 8. Defendants have
filed motions for summary judgment. Docs. 63, 65. Plaintiff
has filed motions for additional time to conduct discovery
pursuant to Federal Rule of Civil Procedure 56(d). Docs. 82,
83. The Court will grant Plaintiff's
56(d) grants the Court discretion to deny a motion for
summary judgment in order to allow more time for discovery
where the opposing party “shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition[.]” When
making a Rule 56(d) determination, the Court should consider
“whether the parties have diligently conducted
discovery prior to the Rule 56(d) motion, whether they
complied with the procedural requirements of the Rule, and
whether further discovery would aid the party opposing
summary judgment or merely delay the proceedings.”
Roosevelt Irrigation Dist. v. Salt River Project,
No. 2:10-CV-290-DAE (BGM), 2016 WL 3613278, at *2 (D. Ariz.
Feb. 2, 2016).
case, there is no dispute that Plaintiff has diligently
conducted discovery prior to filing the Rule 56(d) motion.
See Doc. 88 at 3. Plaintiff has obtained nearly 500,
000 pages of discovery from Defendants and has taken more
than a dozen depositions.
also has complied with the procedural requirements of Rule
56(d) by submitting declarations of counsel specifically
stating the need for further fact discovery to adequately
respond to the summary judgment motions. Docs. 82-1, 83-1.
With respect to the State Defendants' motion, Plaintiff
seeks to conduct discovery regarding the DPS crime lab, DPS
law enforcement personnel, and the Maricopa County
Attorney's Office personnel. Doc. 82-1 ¶ 3. For the
motion filed by the County Defendants, Plaintiff intends to
depose Mr. Montgomery, Deputy County Attorneys, and other
County employees with relevant knowledge. Doc. 83-1 ¶ 3.
The depositions of former defendants Edward Leiter and
Vanessa Lossico are noticed for June 26, 2018, and the
deposition of County Attorney Keith Manning is noticed for
the following day. Doc. 94 at 4. Counsel describes with
sufficient particularity the facts he expects to learn from
the anticipated discovery, and avows that those facts are
essential to oppose summary judgment. Docs. 82-1 ¶¶
4-12, 83-1 ¶¶ 4-8. Counsel further states that
additional time is needed to prepare declarations from expert
witnesses regarding firearms examinations, crime lab
operations, and prosecutorial and police procedures.
Id. ¶¶ 13, 9.
State Defendants' motion seeks summary judgment for seven
individuals on all ten claims asserted in the complaint. Doc.
63. The statement of facts includes more than 60 separate
paragraphs and exhibits spanning some 700-plus pages. Doc.
64. The County Defendants have joined the State
Defendants' motion, and separately seek summary judgment
on similar grounds. Docs. 65, 71. The parties disagree on the
scope of facts required to address the probable cause and
Court cannot conclude that the additional discovery sought by
Plaintiff will shed no light on those issues or other issues
raised by the summary judgment motions. See Jones v.
Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (noting that
“summary judgment in the face of requests for
additional discovery is appropriate only where such discovery
would be ‘fruitless' with respect to the proof of a
viable claim”); Nyland v. Rooke, LLC, No.
2:15-cv-01670 JWS, 2016 WL 649072, at *2 (D. Ariz. Feb. 18,
2016) (“While it is proper for a court to deny a Rule
56(d) application ‘where it is clear that the evidence
sought is almost certainly nonexistent or is the object of
pure speculation, ' here the court cannot conclude that
such facts are clearly nonexistent[.]” (quoting
Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir.
1991)). The Court will grant Plaintiff's Rule 56(d)
motions and deny the summary judgment motions without
prejudice to their refiling after discovery has been
various arguments do not require a different result. The
County Defendants ask the Court to construe Plaintiff's
Rule 56(d) motion as a response to Defendants' summary
judgment motion because it includes arguments as to why
summary judgment should be denied. Doc. 88 at 1-2. Defendants
cite no legal authority in support of this request. The mere
fact that Plaintiff addressed certain summary judgment issues
in his motion is no basis for converting it into a response
contend that the Rule 56(d) motion should be denied because
Plaintiff lacks the evidence necessary to preclude summary
judgment. Id. at 3. They assert that “Rule 56
requires what Plaintiff cannot show - genuine issues of
material fact, ” and yet in the same breath assert that
“Plaintiff does not need more time so that he can
‘present all the facts essential to justify his
opposition.'” Id. The very purpose of Rule
56(d) is to allow a party sufficient time to take discovery
so that he may present facts essential to his opposition.
Fed.R.Civ.P. 56(d)(2); see Choquette v. Warner, No.
3:15-CV-05838-BHS-JRC, 2017 WL 773670, at *3 (W.D. Wash. Feb.
27, 2017) (granting Rule 56(d) request without limiting the
scope of discovery to ensure that the court was
“provided with a complete and accurate record prior to
ruling on a motion for summary judgment”).
further contend that Plaintiff has had ample time to conduct
discovery and did not object to the filing of an early
summary judgment motion at the case management conference.
Docs. 88 at 7-8, 90 at 8-9. But Defendants cite no authority
suggesting that the lack of an objection constitutes a waiver
of the right to seek Rule 56(d) relief once a summary
judgment motion is filed. Moreover, the Case Management Order
sets a September 7, 2018 discovery deadline, a date proposed
by Defendants. Docs. 32 at 16, 45 at 2. The filing of an
early summary judgment motion did not change this deadline or
require Plaintiff to complete discovery in time to file a
claim that their right to immunity will be compromised if
Plaintiff is permitted to conduct further discovery. Doc. 88
at 2-3. But the purpose of the immunity doctrine is to ensure
that “‘insubstantial claims' against
government officials be resolved prior to discovery and on
summary judgment if possible.” Anderson v.
Creighton, 483 U.S. 635, 640 n. 2 (1987); see
Pearson v. Callahan, 555 U.S. 223, 232 (2009) (same).
Where, as in this case, “there is a dispute as to both
the reasonableness of the official's actions and the
factual characterization of those actions, discovery as to
the issue of qualified immunity [is] necessary.”
Choquette, 2017 WL 773670, at *2 (citing
Anderson, 483 U.S. at 646 n.6); see Ngerntongdee
v. Vaughn, No. C08-1070RSM, 2008 WL 5000244, at *3 (W.D.
Wash. Nov. 21, 2008) (noting that qualified immunity
principles “do not suggest that courts should make
hasty determinations based on an incomplete record”);
Hart v. Gaione, No. CV-02-013311-RMT-MANX, 2003 WL
22846344, at *1 (C.D. Cal. Nov. 17, 2003) (noting that the
qualified immunity defense must be balanced against a
plaintiff's right to discovery).
State Defendants assert that the Rule 56(d) request is merely
an attempt to postpone a ruling on their
“straightforward” summary judgment motion. Doc.
90 at 2. As noted above, however, Defendants seek summary
judgment on all ten claims, for a host of different reasons.
Doc. 63 at 2-4. The motion is not limited solely to the issue
of probable cause. See Id. Moreover, the probable
cause inquiry involves a consideration of the totality of the
circumstances and “necessarily turns upon the
particular facts of the individual case.” Ramirez
v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir.
2009). Plaintiff should be permitted to conduct further
discovery into the investigation and facts known to
Defendants before his arrest. See Spencer v. Peters,
No. C11-5424 BHS, 2012 WL 4514417, at *16-19 (W.D. Wash. Oct.
2, 2012) (granting Rule 56(d) request on the issue of
probable cause where the plaintiff challenged the facts known
to officials at the time of his arrest).
requests an additional six months to conduct the discovery he
needs to respond to the summary judgment motions. Docs. 82 at
2, 83 at 2. As noted above, the Case Management Order set a
September 7, 2018 deadline for the completion of fact
discovery. Doc. 45 ¶ 4. The order made clear that the
Court intends to enforce the deadlines and the parties should
plan their litigation activities accordingly. Id.
¶ 9. The Court will not extend the fact discovery period
beyond the September 7 deadline. The remaining four months
provides ample time for Plaintiff to conduct the discovery
needed to oppose summary judgment.