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DeLorme v. Markwitz

United States District Court, W.D. New York

February 8, 2017

EUGENE A. DeLORME, Plaintiff,
PAUL A. MARKWITZ et al., Defendants.


          HON. FRANK P. GERACI, JR. Chief Judge.


         Eugene A. DeLorme (“Plaintiff”) brings this action pursuant to the Stored Communications Act, 18 U.S.C. § 2701, et seq. (“SCA”) against seven defendants, all of whom are officers and members of Local Union 118 of the International Brotherhood of Teamsters (the “Union”). ECF No. 1. Plaintiff claims that Defendants violated the SCA when they accessed emails that he left behind when he was removed from his position with the Union. Id.

         On April 25, 2016, Defendants moved for summary judgment. ECF No. 33. On June 22, 2016, the day that Plaintiff was required to respond to Defendants' motion, Plaintiff filed an application for relief pursuant to Federal Rule of Civil Procedure 56(d) (“Rule 56(d)”). ECF Nos. 35, 36, 37. For the reasons that follow, Plaintiff's application is GRANTED and Defendants' motion for summary judgment is DENIED WITHOUT PREJUDICE.


         Plaintiff commenced this action on March 4, 2014. ECF No. 1. Thereafter, the case was referred to United States Magistrate Judge Jonathan W. Feldman. ECF No. 10. Pursuant to the report submitted after the parties' Rule 26(f) planning meeting, Plaintiff and Defendants agreed to certain discovery deadlines. ECF No. 12, at ¶ ¶ 1-2.

         The initial proposed deadlines were ultimately amended, and pursuant to Judge Feldman's November 2, 2015 scheduling order, discovery in this case was to be completed by December 31, 2015 and dispositive motions were due by February 29, 2016. ECF No. 31, at 3. The Order specifically stated that “Plaintiff shall depose defendants Christopher Toole and, if necessary, Paul Markwitz in order to inquire about the operation of [the Union]'s email system and the decision to access Plaintiff's emails.” Id.

         On February 26, 2016, Plaintiff sent a letter to Judge Feldman seeking to extend the discovery and dispositive motion deadlines. ECF No. 32. Specifically, Plaintiff indicated that the parties were attempting to draft a stipulation of facts that would eliminate Plaintiff's need to depose defendants Markwitz and Toole. Id. at 1. At that time, the parties had not been able to finalize a stipulation of facts and Defendants Markwitz and Toole had not been deposed, and therefore Plaintiff asserted that “the filing of any summary judgment motion is premature. If Defendants were to nevertheless proceed with the filing of a summary judgment motion, Plaintiff would have no choice but to submit an affidavit under Fed.R.Civ.P. 56(d), as many facts would not be available to Plaintiff.” Id. Accordingly, Plaintiff requested that Judge Feldman extend the dispositive motion deadline from February 29, 2016 to April 29, 2016. Id. at 2. Plaintiff contended that this extension would give the parties “sufficient time to complete efforts to prepare and execute the stipulation of facts” or alternatively to “conduct any depositions that may become necessary.” Id. Judge Feldman granted the request and extended the deadline for dispositive motions to April 29, 2016. ECF No. 32.

         Defendants moved for summary judgment on April 25, 2016, and Plaintiff's response was due on May 23, 2016. ECF Nos. 33, 34. On May 20, 2016, the Court granted Plaintiff an extension of time and ordered that he respond to Defendants' motion by June 15, 2016. ECF No. 34. On June 14, 2016, Plaintiff was granted another extension of time and was required to respond by June 22, 2016. ECF No. 35. On June 22, 2016, instead of responding to Defendants' motion, Plaintiff filed an affidavit and memorandum of law in support of an application for relief pursuant to Rule 56(d). ECF Nos. 36, 37. Plaintiff asserts that, without deposing Defendants Markwitz and Toole, he cannot adequately respond to Defendants' motion and requests that he be allowed to conduct those depositions before he is required to respond. Id. Defendants “vigorously oppose the reopening of discovery” and maintain that Plaintiff has not demonstrated that he is entitled to the relief he requests. ECF No. 38.


         Rule 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). The grant of relief pursuant to this rule is within the Court's discretion. Carpenter v. Churchville Greene Homeowner's Ass'n, Inc., No. 09-CV-6552, 2011 WL 710204, at *4 (W.D.N.Y. Feb. 22, 2011) (citing U.S. v. Private Sanitation Indus. Assoc. of Nassau/Suffolk, Inc., 995 F.2d 375 (2d Cir. 1993)).

         Under Rule 56(d), the party seeking discovery must “make a specific proffer as to the discovery it would seek, ” and “a bare assertion that the evidence supporting a plaintiff's allegation is in the hands of the defendant is insufficient.” Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 573 (2d Cir. 2005) (citation and quotation marks omitted). Specifically, “[t]o request discovery under Rule 56[d], a party must file an affidavit describing: (1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant's efforts were unsuccessful.” Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004) (citation omitted).

         I. Necessary Facts

         Plaintiff's affidavit asserts that he cannot appropriately oppose Defendants' summary judgment motion without first deposing Defendants Toole and Markwitz. ECF No. 36, at 1-9. Plaintiff argues that it is necessary to depose Defendant Toole because Defendants' motion- specifically Defendants' statement of undisputed facts-relies almost exclusively on Defendant Toole's affidavit. Id. at ¶¶ 11-12. Similarly, Plaintiff argues that it is necessary to depose Defendant Markwitz because doing so may controvert Defendant Toole's affidavit. Id. at ¶ 15. Plaintiff contends that these depositions would create genuine issues of material fact, and he sets forth a list of numerous questions and issues he wishes to explore in these depositions. Id. at ΒΆΒΆ 13-15. After reviewing the issues detailed in ...

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