Free Response in Opposition to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. William L. Thorpe (No. 005641) Sal J. Rivera (No. 016728) Melissa W. Rawlinson (No. 021285) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 [email protected] [email protected] [email protected] Attorneys for BNSF

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Steven Schrum, Plaintiff, v. The Burlington Northern Santa Fe Railway Company, Defendant. No. CIV04-619-PHX-RCB RESPONSE TO PLAINTIFF' REQUEST S FOR ADDITIONAL TIME TO RESPOND TO BNSF' (1) MOTION FOR S SUMMARY JUDGMENT AND (2) MOTION TO STRIKE PLAINTIFF' S UNTIMELY DISCLOSED EXPERT OPINION (Oral Argument Requested) The Burlington Northern Santa Fe Railway Company, a corporation, Third Party Plaintiff

16 17 18 19 v. 20 21 22 Third Party Defendants 23 24 25 26
FENNEMORE CRAIG, P.C.
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Chemical Lime Company of Arizona, a corporation; ABC Corporations I-IV, fictitious corporations,

Pursuant to Rule 56(f), Fed. R. Civ. P., the Court should deny plaintiff' request for s additional time to respond to BNSF' motion for summary judgment and BNSF' motion s s to strike plaintiff' untimely disclosed expert opinion. Plaintiff does not qualify for a s

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56(f) continuance because he did not diligently pursue discovery before BNSF filed its motions. Furthermore, the depositions identified in plaintiff' Rule 56(f) application have s been taken and do not provide any evidence to overcome BNSF' motions. s Thus,

granting plaintiff additional time to respond to BNSF' motions will simply delay the s resolution of this case. The Court should therefore deny plaintiff' motion and grant s summary judgment in favor of BNSF. If the Court is inclined to grant a 56(f)

continuance, and since plaintiff has essentially granted himself an extension, the Court should not allow plaintiff to use the extension to circumvent the Court' expert disclosure s deadline or interject new theories or experts into the case. The Court should also deny plaintiff' Rule 56(f) request as it relates to BNSF' s s motion to strike plaintiff' untimely disclosed expert opinion. The depositions identified s in plaintiff' Rule 56(f) request are unrelated to the issues raised in the motion to strike s and therefore were not necessary for BNSF to respond to that motion. Furthermore, a Rule 56(f) continuance is not an appropriate response to BNSF' motion to strike because s the underlying motion is not a motion for summary judgment. Consequently, plaintiff' s failure to respond to this motion is not justified. The Court should therefore deny

plaintiff' 56(f) request as it relates to BNSF' motion to strike and grant BNSF' motion s s s on this topic. BNSF' response is supported by the following Memorandum of Points and s Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. Plaintiff does not qualify for a Rule 56(f) continuance. A Rule 56(f) motion should be denied if the movant failed to diligently pursue previous discovery opportunities before summary judgment, particularly when due to the movant' own delay. See Mackey v. Pioneer Nat' Bank, 867 F.2d 520, 524 (9th Cir. s l 1988); Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369, 372 (9th Cir. 1985).
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Plaintiff is not entitled to a Rule 56(f) continuance because he did not diligently pursue discovery opportunities before BNSF filed its motions for summary judgment. Plaintiff had nearly two years to conduct depositions, but he chose not to do so until BNSF filed its motions for summary judgment. A denial of a Rule 56(f) request is justified under such circumstances. See e.g., Beneficial Standard Life Ins. Co. v.

Madariaga, 851 F.2d 271, 277 (9th Cir. 1988) (holding that six-month span between initial appearance and grant of summary judgment was more than sufficient to provide reasonable opportunities for discovery); Brae Transp. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986) (finding no abuse of discretion in the district court's refusal to allow discovery before summary judgment where the movant took no discovery for four months); Landmark Dev. Corp., 752 F.2d at 372 (holding denial of continuance appropriate where appellants had reasonable access to information during ten-month discovery period and failure to take depositions was due to appellants' own delay). The Court should therefore deny plaintiff' Rule 56(f) request.1 s Plaintiff' suggestion that he failed to conduct the subject depositions because s defendants agreed to mediate this case also fails. While BNSF agreed to participate in a private mediation, BNSF never said it would not file dispositive motions or suggested that plaintiff could or should not depose witnesses. The timing of BNSF' motions is a s function of the state of the evidence and the Court-ordered deadline for filing dispositive motions. Plaintiff' implication that defendants somehow misled him into not conducting s discovery is simply not true.2 Plaintiff' suggestion that the complexity of this case necessitated the Rule 56(f) s
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Although plaintiff is not entitled to Rule 56(f) relief, he essentially granted himself an extension and completed the depositions identified in his Rule 56(f) application. Significantly, these depositions do not refute the crux of BNSF' motion; namely that plaintiff does not have any evidence that BNSF caused his s life-long asthmatic condition. Consequently, the requested extension will do nothing more than delay the Court' ruling on the motions for summary judgment. s 2 The fact that Chemical Lime simultaneously filed motions for summary judgment confirms that defendants did not represent that they would not file summary judgment motions.
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request also misses the mark. As a preliminary matter, this statement directly contradicts plaintiff' previous position on this case in which he asserted that this was "just not a very s complex case."3 (emphasis added) Moreover, whether this case is complex is not

relevant to plaintiff' request for an extension. Indeed, the alleged complexity of this case s does not excuse plaintiff' failure to conduct the discovery he now contends he needs s before he can respond to BNSF' motions. Instead, this unsupported contention is simply s another eleventh hour attempt to evade summary judgment. BNSF does not object to reasonable requests for continuances and extensions. Indeed, BNSF granted plaintiff a good number of extensions and courtesies throughout this litigation. Nevertheless, plaintiff' current request for extension seems designed to s interject new and previously undisclosed theories and expert witnesses into this case. The depositions of Dr. Khuri and Dr. Lindsay do not add much, if anything, to this case or help plaintiff establish a prima facie case. Nevertheless, BNSF objects to what appears to be an effort to use procedural rules to delay summary judgment and circumvent prior Court-ordered expert disclosure deadlines. The Court should not sanction such tactics. II. The Court should deny plaintiff' request for additional time to respond to s BNSF' motion to strike his untimely disclosed expert opinion. s The Court should also deny plaintiff' request for additional time to respond to s BNSF' motion to strike plaintiff' untimely expert opinion. s s Simply stated, the

depositions of Dr. Lindsay and Dr. Khuri have nothing to do with BNSF' motion to s strike the untimely opinion of plaintiff' expert Frank Burg. Furthermore, BNSF' motion s s to strike is not a motion for summary judgment. Consequently, Rule 56(f) does not even apply to this motion. In short, plaintiff does not have a good reason for not responding to BNSF' motion, but he nonetheless failed to file a response. Local District Court Rule s 7.2(i) provides that failure to file a timely response "may be deemed a consent to the
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See Letter dated June 24, 2005 from George Brugess to Melissa W. Rawlinson, attached as exhibit A.

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denial or granting of the motion . . . ." See also Stone v. Baum, 409 F. Supp. 2d 1164, 1180 (D. Ariz. 2005) (recognizing rule). motion and strike Burg' untimely opinion. s III. Conclusion Based on the foregoing, BNSF requests that the Court deny plaintiff' motion and s grant BNSF' unanswered motions. s DATED this 2nd day of March, 2006. FENNEMORE CRAIG, P.C. The Court should therefore grant BNSF' s

By s/Sal J. Rivera Sal J. Rivera William L. Thorpe Melissa W. Rawlinson Attorneys for BNSF

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CERTIFICATE OF SERVICE I hereby certify that on March 2, 2006, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: George T. Brugess Hoey & Farina, P.C. 542 S. Dearborn, Suite 200 Chicago, IL 60605 Attorneys for Plaintiff Charles D. Onofry ReNae A. Nachman Schneider & Onofry, P.C. 3101 N. Central Ave., Ste. 600 Phoenix, AZ 85012 Attorneys for Third-Party Defendant Chemical Lime I hereby certify that on March 2, 2006, I served the attached document by facsimile and U.S. mail on the following, who are not registered participants of the CM/ECF System: William D. Black One East Camelback Road Suite 630 Phoenix, Arizona 85012-1658

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