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Pure Air Daigle, LLC v. Stagg

United States District Court, W.D. Louisiana, Lafayette Division

July 12, 2017

PURE AIR DAIGLE, LLC, ET AL.
v.
CHARLES STAGG, II, ET AL.

          DOHERTY JUDGE

          RULING ON MOTIONS

          PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE

         Currently pending are the plaintiffs' motion for discovery under Fed.R.Civ.P. 56(d) (Rec. Doc. 79) and the plaintiffs' motion to compel the deposition of Jude C. Bursavich, counsel for defendants Capitol Welders Supply Co. Inc. and St. Landry Gas & Supply, L.L.C. (“the Corporate Defendants”) (Rec. Doc. 95). Expedited consideration of the motion to compel was requested (Rec. Doc. 96) and granted (Rec. Doc. 100). Both motions are opposed, the issues presented in the motions are inextricably intertwined, and oral argument on both motions was held by telephone on July 10, 2017. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, both motions are DENIED.

         Background

         Defendants Charles Stagg, II, Michael Scott Lanclos, Phillip Courville, Jr., and Brad Guidry (“the Employee Defendants”) were all formerly employed by Daigle Welding Supply. The plaintiffs are the successors of that company. Defendant Capitol Welders Supply Co. Inc. was a long-time supplier of the plaintiffs, and in 2016, Capitol formed defendant St. Landry Gas & Supply, L.L.C., which is a competitor of the plaintiffs. All of the Employee Defendants left their employment with the plaintiffs and went to work for St. Landry Gas. In their complaint, the plaintiffs alleged claims against the defendants for breach of contract, violation of the Louisiana Unfair Trade Practices and Consumer Protection Law, breach of fiduciary duties, conversion, conspiracy, tortious interference with contractual relationships, and tortious interference with business relationships. The two pending motions relate to the plaintiffs' conversion claim and a motion for partial summary judgment on the issue of conversion (Rec. Doc. 69), which was filed by the defendants and remains currently pending.

         Law and Analysis

         A. The Standard for Evaluating a Motion for Additional Discovery Under Rule 56(d)

         Under Fed.R.Civ.P. 56(d), the party responding to a motion for summary judgment may be allowed additional time to obtain affidavits or declarations or to take discovery if it can show that it cannot present facts essential to justify its position without obtaining additional discovery. The rule requires a party seeking such relief to present an affidavit or declaration setting forth specified reasons for the relief sought. In such a situation, the court is authorized to defer considering the motion for summary judgment, to deny it, or to issue any other appropriate order. Thus, Rule 56(d) functions as a safe harbor that prevents the premature granting of motions for summary judgment.[1]

         Although Rule 56(d) motions are “broadly favored and should be liberally granted, ”[2] it is not sufficient for the party responding to a motion for summary judgment to allege only that discovery is incomplete or that discovery will produce needed but unspecified facts.[3] Instead, that party must “set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion.”[4] In other words, “a party must indicate to the court. . . why he needs additional discovery and how the additional discovery will create a genuine issue of material fact.”[5] A nonmovant is not entitled to a continuance for additional discovery if it “failed to explain what discovery [it] did have, why it was inadequate, and what [it] expected to learn from further discovery.”[6] The party cannot rely on vague assertions but must show why it needs additional discovery and how that discovery will create a genuine issue of material fact.[7]

         B. The Effect of Deposing an Attorney

         Rule 3.7 of the Louisiana Rules of Professional Conduct for lawyers states:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services ...

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