United States District Court, E.D. Missouri, Eastern Division
A.L.L. CONSTRUCTION, LLC, Plaintiff,
METROPOLITAN ST. LOUIS SEWER DISTRICT; JAMES FAUL, RUBY BONNER, RONALD BOBO, MICHAEL YATES, and JAMES I. SINGER, in their individual capacities as members of the Board of Trustees of the Metropolitan St. Louis Sewer District; and BATES UTILITY CO., INC., Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion (ECF No. 73) of
Plaintiff A.L.L. Construction, LLC (“ALL”) and
affidavit of Plaintiff's attorney, pursuant to Federal
Rule of Civil procedure 56(d), asking the Court to continue
consideration of the summary judgment motion (ECF No. 70)
filed by Defendants pending further discovery. Defendants have
oppoaws Plaintiff's request, arguing that Plaintiff has
not satisfied the specificity requirements of Rule 56(d) or
shown that discovery is necessary to respond to the summary
judgment motion, which asserts a claim of qualified immunity.
Court's Case Management Order in this case contemplated
resolution of any motion for qualified immunity before
discovery commenced, based on the principle that the issue of
qualified immunity should be resolved as early as possible
and on Defendants' representation that such motion would
present a question of law for determination. However, now
that Defendants have filed their motion for summary judgment
based on qualified immunity, and upon review of that motion,
the Court concludes that the motion relies heavily on factual
issues that have not yet been subject to discovery. These
factual issues include the extent of Defendants'
involvement in the Small Contractor Program and ALL's
removal therefrom, as well as the reason(s) for such removal.
56(d) provides that “[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: (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). Because “[t]he purpose of Rule
56(d) is to provide an additional safeguard against an
improvident or premature grant of summary judgment, ”
courts have held that “the rule should be applied with
a spirit of liberality, ” particularly where, as here,
the case is still in the very early stages. Rummel v.
Massachusetts Mut. Life Ins. Co., No. 4:13 CV 1743 RWS,
2014 WL 1116741, at *1 (E.D. Mo. Mar. 20, 2014) (citations
careful consideration of the parties' briefs and the
authorities cited therein, the Court concludes that Plaintiff
has made a sufficient showing that it cannot present facts
essential to justify its opposition to the summary judgment
motion. The Court will ask thus ask the parties to submit a
joint proposed schedule for this case which gives Plaintiff
until October 22, 2018 to conduct whatever discovery it
believes is necessary to respond to the summary judgment
motion. The Court will follow the usual practice under Rule
56(d), which is to deny Defendants' motion for summary
judgment without prejudice to reapply after Plaintiff has
conducted this discovery. See 10B Charles Alan
Wright & Arthur R. Miller, et al., Federal Practice and
Procedure § 2740 (4th ed.).
time, Defendants may refile their motion for summary
judgment, and may advise the Court that they wish to
incorporate by reference their previously filed statement of
facts and memorandum in support thereof, or may file a new
such statement and memorandum. The Court will give Plaintiff
28 days to respond to the motion, and the Court will not
grant any further request under Rule 56(d) by Plaintiff
absent a showing with specificity that additional discovery
is required to respond to the motion, and good cause why such
discovery has not been completed.
IT IS HEREBY ORDERED that Plaintiff's
motion for additional time to conduct discovery before
responding to Defendants' motion for summary judgment is
GRANTED. ECF No. 73.
IS FURTHER ORDERED that the motion for summary
judgment filed by Defendants James Faul, Ruby Bonner, Ronald
Bobo, Michael Yates, and James I. Singer is DENIED
without prejudice. ECF No. 70.
IS FURTHER ORDERED that the parties shall meet and
confer and shall, no later than 7 days from
the date of this Memorandum and Order, file a joint proposed
schedule for the remainder of the litigation, which provides
that Defendants may refile their motion for summary judgment
addressing qualified immunity, either incorporating by
reference their previously filed statement of facts and
memorandum in support thereof or attaching a new supporting
statement and memorandum, no earlier than October 22,
2018. As set forth above, Plaintiffs response shall
be due no later than 28 days after such a motion is filed;
any reply shall be due no later than 14 days thereafter.
IS FURTHER ORDERED that the joint proposed schedule
shall also address all other outstanding deadlines in this
case, including a proposed date for referral to Alternative
Dispute Resolution, and a proposed trial date.
 The motion was filed by Defendants
James Fault, Ruby Bonner, Rev. Ronald Bobo, Michael Yates,
and James I. Singer, all members of the Metropolitan St.
Louis Sewer District's (“MSD”) Board of