United States District Court, E.D. Louisiana
ANGIE SERRANO, ET AL.
OTIS ELEVATOR COMPANY, ET AL.
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
Interstate Management Company, LLC moves for summary judgment
on plaintiffs Angie Serrano and Nelly Briceno's
claims. In addition to responding to
defendant's motion, plaintiffs move the Court to delay or
defer consideration of defendant's motion so that
plaintiffs can obtain additional discovery. Federal Rule of
Civil Procedure 56(d) governs requests for additional time
for discovery before consideration of a pending motion for
summary judgment. It permits a district court to deny or
defer consideration of a motion for summary judgment, allow
time to take discovery, or “issue any other appropriate
order” when “a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition.”
Fed.R.Civ.P. 56(d). Nonetheless, the party seeking a
continuance “may not simply rely on vague assertions
that additional discovery will produce needed, but
unspecified, facts.” Raby v. Livingston, 600
F.3d 552, 561 (5th Cir. 2010) (quoting Sec. & Exch.
Comm'n v. Spence & Green Chem. Co., 612 F.2d
896, 901 (5th Cir. 1980)). Instead, the party seeking to
continue a motion for summary judgment to obtain further
discovery must demonstrate (1) “why he needs additional
discovery” and (2) “how the additional discovery
will create a genuine issue of material fact.” Krim
v. BancTexas Grp., Inc., 989 F.2d 1435, 1442 (5th Cir.
1993). In other words, the plaintiff must identify specific
facts, susceptible of collection, and indicate how those
facts “‘will influence the outcome of the pending
summary judgment motion.'” McKay v. Novartis
Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014) (quoting
Raby, 600 F.3d at 561)).
Interstate asserts it is entitled summary judgment because it
argues it is immune to plaintiffs' claims pursuant to the
“two-contract theory” under the Louisiana
Workers' Compensation Act. Plaintiffs' Rule 56(d)
motion points out that plaintiffs have not been given the
full contracts at issue, and plaintiffs argue that once they
have the full contracts they will have evidence creating a
dispute of material fact.
has not submitted the full Hotel Management Agreement between
itself and Canal Place Borrowers, the entity that owns the
hotel. In its previous opposition to plaintiffs' motion
to remand, Interstate acknowledged that it had not submitted
the full copy, but stated that it did not do so because the
agreement contained “financial and proprietary
information” which is “confidential in light of
the competitive nature of the hotel management
Court finds that the full copy of the Hotel Management may
contain information that could create an issue of material
fact as to the applicability of the two-contract theory to
this case. Therefore, the Court grants plaintiffs' Rule
56(d) motion in part and will defer consideration of
Interstate's motion for summary judgment. Interstate is
ordered to submit to plaintiffs, and to file in the record
within seven days of the date of entry of this order, a full
copy of the Hotel Management Agreement. Interstate may redact
confidential financial and proprietary information regarding
rates charged, but the rest of the contract, in particular
provisions on defense, indemnity, and insurance obligations,
must be submitted.
the remainder of plaintiffs' Rule 56(d) motion,
plaintiffs also argue that “depositions of fact
witnesses familiar with plaintiffs' job duties and with
the use of the elevator at issue” will demonstrate a
genuine issue of fact on whether plaintiffs were injured in
the course and scope of their employment. As explained in
the Court's order on plaintiffs' remand motion,
plaintiffs' own statements indicate that their injuries
occurred while they were in the course and scope of their
employment. But even if the evidence were ambiguous on
this issue, plaintiffs not only fail to identify these fact
witnesses or what specific information they would testify to
that would create an issue of fact, but also plaintiffs
surely possess within their own personal knowledge
information on their job duties and the use of the elevator.
Plaintiffs have made no argument as to what information these
unidentified witnesses possess that plaintiffs do not, or why
their testimony, but not an affidavit from either plaintiff,
would create an issue of fact. As such, plaintiffs'
argument that additional discovery will create an issue of
fact on course and scope of employment is nothing more than a
vague, speculative assertion.
Rule 56(d) “does not condone a fishing expedition where
a plaintiff merely hopes to uncover some possible evidence of
[value], ” Duffy v. Wolle, 123 F.3d 1026, 1041
(8th Cir. 1997) (internal quotation omitted), the Court will
not defer or delay consideration of Interstate's motion
so that plaintiffs can depose these unidentified fact
witnesses. See Jason v. Parish of
Plaquemines, No. 16-2728, 2016 WL 4623050, at *4-5 (E.D.
La. Sept. 6, 2016) (denying plaintiffs request to defer
consideration of motion for summary judgment because
plaintiff gave “nothing more than a ‘speculative
hope' that discovery might provide plaintiff with
information supporting his claims”) (quoting Sweats
Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560,
1567 (Fed. Cir. 1987)).
plaintiffs' Rule 56(d) motion is GRANTED IN PART solely
as to the undisclosed portions of the Hotel Management
Agreement. After Interstate submits the full agreement,
plaintiffs shall have seven days to brief any new arguments
that arise from the submission of the full agreement, but
plaintiffs will not be permitted to rehash arguments it has
already submitted before the Court. Interstate shall have
seven days from the date of plaintiffs' brief to respond.
There will be no replies. The remainder of plaintiffs'
Rule 56(d) motion is DENIED.
 R. Doc. 26.
 R. Doc. 32 at 4-5.
 R. Doc. 9 at 3 n.4.