United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO BIFURCATE AND RELATED DISCOVERY ISSUES
TIM A. BAKER, Magistrate Judge.
Whether and to what extent to permit discovery is before the Court anew. When last addressing this issue on January 31, 2014, the Court held "the time to proceed with discovery is at hand." [Filing No. 52, at ECF p. 2.] The Court then lifted a previously issued stay of discovery. The Court observed in that January 31 discovery order that summary judgment motions were anticipated, but stated, "As for today, discovery may proceed." [Filing No. 52, at ECF p. 2.]
The landscape of this case has changed significantly since the Court issued that order. These changes were highlighted during a May 5, 2014, telephonic status conference. During that conference, Defendant Jason Rosenbaum renewed his request to limit discovery in light of these recent changes. Rosenbaum's request relates to his February 20, 2014, motion to bifurcate and limit discovery to the issue of proximate cause. Rosenbaum's motion to bifurcate, as well as the argument the Court heard during the May 5 conference, specifically teed up the discovery issue for a fresh look. Rosenbaum and co-Defendant Corey Rossman also have filed motions to quash non-party subpoenas. [Filing No. 74; Filing No. 76.] Briefing on these motions is now complete.
These discovery developments are significant. But the most significant change to take place since the Court issued its January 31 order permitting discovery is that on February 20, 2014, Rosenbaum filed a motion for summary judgment. [Filing No. 61.] That motion seeks dismissal of the two remaining claims in the case-negligence per se and dram shop liability. Plaintiffs ordinarily would be entitled to discovery in an effort to stave off a summary judgment motion. When a motion for summary judgment is served early in a case as occurred here, the need for some discovery is to be expected. Indeed, Fed.R.Civ.P. 56(d) expressly contemplates this situation.
That rule provides:
If 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).
Interestingly, the Spierers responded to Rosenbaum's summary judgment motion rather than requesting additional time to conduct discovery. The Spierers' counsel did file a declaration, purportedly under Rule 56(d), but the declaration fails to explain why discovery is needed or what specifically would be sought through discovery. Rather, the relevant portion of the declaration merely states, "The Spierers reasonably require discovery, including Interrogatories, Requests for Production of Documents and Requests for Admission to Defendants, depositions, nonparty and expert discovery to identify evidence supporting their claims. [Filing No. 71-1, at ECF ¶ 17.] The remainder of the declaration is largely a recitation of this case's procedural history.
This declaration leaves unanswered the fundamental question: what specifically do the Spierers need? As a result, the declaration is deficient. See Buquer v. City of Indianapolis, No. 1:11-cv-708-SEB-MJD, 2012 WL 829666, at *2 (S.D. Ind. 2012) ("The nonmoving party's Rule 56(d) affidavit should provide: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to create a genuine issue of material fact; (3) what efforts the affiant has made to obtain those facts; and (4) why these efforts were unsuccessful.").
Moreover, the Spierers responded to Rosenbaum's summary judgment motion. [Filing No. 71.] If the Spierers really needed discovery, they should have filed a Rule 56(d) motion to conduct such discovery and to enlarge the deadline to respond to Rosenbaum's summary judgment motion. The advisory committee notes to the rule specifically state, "A party who seeks relief under subdivision (d) may seek an order deferring the time to respond to the summary judgment motion." Fed.R.Civ.P. 56(d) advisory committee's note (2010). The Spierers' summary judgment response is even more curious given that, in briefing the motion to bifurcate: (1) Rosenbaum specifically stated he was not trying to prevent the Spierers from obtaining discovery to respond to his summary judgment motion [Filing No. 67, at ECF p. 3]; and (2) the Spierers expressly recognized that discovery would be needed to respond to Rosenbaum's motion for summary judgment. [Filing No. 66, at ECF p. 9.]
Now, however, Rosenbaum has filed his reply brief and thus his summary judgment motion is fully briefed. [Filing No. 73.] The Spierers argue in their summary judgment response that Rosenbaum "has designated no evidence in support of his Motion for Summary Judgment beyond the allegations of the Spierer's Complaint." [Filing No. 61, at ECF p. 6.] This argument misses the mark. The burden at summary judgment rests upon the nonmoving party to submit evidentiary materials that set forth specific ...