United States District Court, D. New Hampshire
A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE.
Rutledge brings claims against her former employer, Elliot
Health System and Elliot Hospital, for age discrimination and
wrongful termination. The defendants moved for summary
judgment on the grounds that Rutledge cannot prove her
claims. Rutledge objected to summary judgment as to her claim
of age discrimination, Count I, but did not contest summary
judgment as to her wrongful termination claim, Count II.
fallback position, Rutledge also asked the court to defer
ruling on the motion, if her objection were deemed to be
insufficient to avoid summary judgment. She argues that the
parties' discovery disputes have delayed production of
some material information and delayed the deposition of an
important nonparty witness. The defendants object to
deferring the ruling on summary judgment.
Relief under Rule 56(d)
56(d) provides a means for the nonmoving party to avoid
summary judgment when that party “cannot present facts
essential to justify its opposition.” As such, Rule
56(d), “protects a litigant who justifiably needs
additional time to respond in an effective manner to a
summary judgment motion.” In re PHC, Inc.
S'holder Litig., 762 F.3d 138, 143 (1st Cir. 2014)
(internal quotation marks omitted). A party requesting relief
under Rule 56(d) must show by affidavit or declaration the
reasons that she cannot present facts essential to summary
judgment. Fed.R.Civ.P. 56(d).
argues both that the defendants are not entitled to summary
judgment, based on the existing facts, and that she needs
additional discovery to effectively oppose summary judgment.
Rutledge's counsel provided his affidavit in which he
represents that the patient chart and information about the
Exceptional Beginnings Quality Review Committee
investigation, which were addressed in Rutledge's motion
to compel, are necessary to oppose the motion. Counsel also
states that the patient chart is a necessary predicate for a
deposition of a nurse midwife who was involved in the
patient's care. Counsel contends that the cited
information is relevant to the issue of whether the
defendants' reason for terminating Rutledge was pretext
for age discrimination.
their reply, the defendants argue that Rule 56(d) does not
provide relief here because Rutledge caused the delay in
obtaining the patient chart and the deposition of the nurse
midwife, identified as Christine Isabella. The defendants
note that discovery closed on February 1 and that Rutledge
has not moved to extend the discovery deadline, which has now
passed. The defendants also argue that the deposition of
Isabella would not provide any material information.
contradictory positions, objecting to summary judgment based
on disputed material facts and at the same time seeking to
defer a ruling, might be construed to undermine her asserted
grounds for deferral. See Morse v. TBC Retail Gr.,
Inc., 2013 WL 6730107, at *2 (D.N.H. Dec. 19, 2013)
(citing C.B. Trucking, Inc. v. Waste Mgmt., Inc.,
137 F.3d 41, 44 (1st Cir. 1998), and noting that
“absent unusual circumstances, a party cannot object
(on substantive grounds) to a pending motion for summary
judgment, while also seeking time for additional discovery if
that objection proves unavailing”). Nevertheless,
courts are expected to apply Rule 56(d) “generously,
holding parties to the rule's spirit rather than its
letter.” In re PHC, Inc., 762 F.3d at 143
(internal quotation marks omitted). Courts in this circuit
are directed to “refrain from entertaining summary
judgment motions until after the parties have had a
sufficient opportunity to conduct necessary discovery.”
Velex v. Awning Windows, Inc., 375 F.3d 35, 39 (1st
Cir. 2009). That is because “when a party moves for
summary judgment, the opposing party must be afforded a fair
chance to obtain and synthesize available information before
being required to file an opposition.” Id.
parties in this case have been embroiled in prolonged
discovery disputes that have generated three motions to
compel. On March 7, the same day that Rutledge filed her
objection to the motion for summary judgment, the court
granted in part and denied in part the third motion to
compel. The parties were ordered to file a motion for a
protective order that would allow the defendants to produce
the requested patient chart. The defendants were ordered to
produce the Committee's records of its investigation into
Rutledge's actions and patient care on May 22, 2014.
Rutledge's request to compel the defendants to make and
produce summaries of information from the Committee's
records was denied.
to the protective order and the court's March 7 order,
Rutledge has or will soon have the patient chart and the
Committee records, which counsel represents are necessary for
purposes of opposing summary judgment. For that reason,
Rutledge is granted relief under Rule 56(d).
the current scheduling order, discovery closed on February 1,
2018. The deadline for dispositive motions was February 5,
2018. The trial is scheduled for the period beginning on June
has not moved to modify the scheduling order to extend any
deadlines, although counsel acknowledges that the delay he
requests may cause the trial date to be continued. See
Fed.R.Civ.P. 16(b)(4). To allow time for Rutledge and the
defendants to address any issues raised by the additional
discovery that the court ordered the defendants to produce in
the order of March 7, the pending motion for summary judgment
will be ...