United States District Court, W.D. New York
EUGENE A. DeLORME, Plaintiff,
PAUL A. MARKWITZ et al., Defendants.
DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge.
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
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.
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.
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.”
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.
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.
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)).
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).
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 ¶¶ 13-15. After
reviewing the issues detailed in ...