McGhee v. Martin

• Decision Date: 27 February 2004
• Citation: McGhee v. Martin, 892 So. 2d 398 (Ala. Civ. App. 2004)
• Parties: Willie McGHEE v. Ed MARTIN et al.
• Court: Alabama Court of Civil Appeals

892 So.2d 398

Willie McGHEE v.Ed MARTIN et al.

2020622.

Court of Civil Appeals of Alabama.

February 27, 2004.

Paul C. Garrison of Hollis & Wright, P.C., Birmingham, for appellant.

Scott Burnett Smith of Bradley Arant Rose & White, LLP, Huntsville; Justin T. McDonald of Bradley Arant Rose & White, LLP, Birmingham; and William F. Horsley of Samford, Denson, Horsley, Pettey & Bridges, Opelika, for appellees.

On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued on December 12, 2003, is withdrawn, and the following is substituted therefor.

On October 14, 1999, Willie McGhee lost his right arm and hand in an industrial accident that occurred while he was processing rubber through a "re-op mill" at the business premises of his employer, Uniroyal/B.F. Goodrich/Michelin North America("Michelin").In July 2001, after having conducted presuit discovery pursuant to Rule 27(a), Ala. R. Civ. P., in February 2000, McGhee sued the manufacturer of the "re-op mill," alleging violations of the Alabama Extended Manufacturer's Liability Doctrine, and Ed Martin, Bruce Brackett, Russell Vaughn, Paul Cagle, and Wilton Crawford(hereinafter collectively referred to as "the co-employees"), alleging that they had willfully and intentionally removed from the mill a safety device that McGhee had been working with at the time of his accident.McGhee also sued 27 fictitiously named parties pursuant to Rule 9(h), Ala. R. Civ. P.

On February 11, 2002, the trial court entered a scheduling order.That order set the case for trial during the first civil jury week of 2003; set the case for final pretrial conference on December 9, 2002; and set cutoff dates for the designation of experts, the exchange of witness lists, the filing of summary-judgment motions, and discovery.The order also stated that "[a]ll amendments including the adding of parties shall be filed within 90 days of this order."Thus, pursuant to the scheduling order, no new parties could be added after May 13, 2002.¹

McGhee began taking depositions of the co-employees in June 2002.Two of the co-employees, Martin and Vaughn, were deposed on September 10, 2002.At Martin's deposition, Martin was unable to provide the name of the head of maintenance at Michelin at the time of the accident.McGhee propounded interrogatories to Martin, requesting the name of the head of maintenance, on October 16, 2002; Martin supplied the name "John Guest" in response.On November 12, 2002, McGhee filed a "Motion to Substitute Fictitious Parties," in which he requested that he be allowed to substitute Guest and three additional co-employees — Donald Williams, Curtis Coker, and Harold Chavis — for fictitiously named party number one, who is described in the complaint as "the person or persons who were employees ... of [McGhee's] employer who had been delegated responsibility by their employer to provide [McGhee] with a safe place to work or a reasonably safe work environment."The co-employees filed a response in opposition to McGhee's motion, arguing that the deadline for adding new parties had passed six months before the filing of the motion to substitute; that McGhee had failed to demonstrate due diligence in determining the true identity of the fictitiously named parties as required by Rule 9(h); and that McGhee could not substitute four additional defendants for one fictitiously named party.After a hearing on February 21, 2003, the trial court denied McGhee's motion on February 25, 2003.

The co-employees filed a motion for a summary judgment on January 21, 2003; that motion was set for a hearing on February 21, 2003.In response to the summary-judgment motion, McGhee filed a request, pursuant to Rule 56(f), Ala. R. Civ. P., that the trial court continue the hearing on the summary-judgment motion and permit additional time for further discovery.The co-employees opposed McGhee's request.The trial court denied the continuance and, because McGhee had failed to produce any evidence indicating an issue of material fact as to the liability of the co-employees, entered a summary judgment in favor of the co-employees on February 25.At the request of the co-employees, the trial court made that summary judgment final.

On March 10, 2003, McGhee filed a postjudgment motion requesting that the trial court reconsider its entry of the summary judgment in favor of the co-employees and its denial of his "Motion to Substitute Fictitious Parties."The trial court did not expressly rule on that motion.²McGhee and the manufacturer of the "re-op" mill filed a joint stipulation for dismissal on March 27, 2003; the trial court entered an order dismissing the case on March 31, 2003.On April 8, 2003, McGhee filed a notice of appeal to the Alabama Supreme Court, which transferred the case to this court, pursuant to Ala.Code 1975, § 12-2-7(6); the notice of appeal listed the February 25, 2003, summary judgment as the judgment from which McGhee appealed.In his docketing statement, which was filed on the same date as his notice of appeal, McGhee listed as issues on appeal the propriety of both the trial court's entry of a summary judgment when discovery remained pending andthe trial court's denial of his "Motion to Substitute Fictitious Parties."

I.The Denial of the Rule 56(f) Continuance

McGhee's response to the co-employees' motion for a summary judgment was to file a motion for a continuance, pursuant to Rule 56(f), Ala. R. Civ. P., in which he alleged that he was unable to respond to the co-employees' summary-judgment motion with evidentiary materials because he had not yet completed essential discovery.

"Although the pendency of discovery does not alone bar a summary judgment, seeReeves v. Porter,521 So.2d 963, 965(Ala.1988), andHope v. Brannan,557 So.2d 1208, 1212(Ala.1989), if the nonmoving party can demonstrate that the outstanding discovery is crucial to his case, then it is error for the trial court to enter a summary judgment before the discovery has been completed.Reeves,521 So.2d at 965;Hope,557 So.2d at 1212.To show that the discovery sought is crucial to his case, the nonmoving party should comply with Rule 56(f), which provides:

"`Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.'"

Wright v. State,757 So.2d 457, 459(Ala.Civ.App.2000).

McGhee argues that his Rule 56(f) motion and his affidavit in support of the motion, which were accompanied by "voluminous filings" regarding outstanding discovery, were sufficient under Rule 56(f) to warrant a continuance of the hearing on the co-employees' summary-judgment motion.He bases his argument on several statements from cases that have considered whether the denial of a Rule 56(f) continuance constitutes reversible error; the statements McGhee relies on include the following: "At this point, neither the trial court nor this Court knows if [the summary-judgment movant's] compliance with those discovery devices will yield anything by way of a cognizable defense to [the movant's] claim,"Water View Devs., Inc. v. Eureka, Inc.,512 So.2d 916, 918(Ala.1987), and "[the party opposing the motion for a summary judgment] had the right to have full answers to such interrogatories before the trial court ruled on the motions for summary judgment,"Noble v. McManus,504 So.2d 248, 250(Ala.1987).Particularly, McGhee argues that he had filed requests for production that Michelin had not responded to and that he had subpoenaed two witnesses for deposition; he argues that the fact that those discovery requests were pending at the time the trial court entered its summary judgment requires this court to reverse the trial court's summary judgment.He also states that a summary judgment is premature and thus should be reversed when, at the time the summary judgment is entered, the trial court is able to ascertain that any outstanding discovery "is or may be crucial to the non-moving party's case."Reeves v. Porter,521 So.2d 963, 965(Ala.1988)(emphasis added).The phrase quoted above from Reeves, however, is contained in a sentence that reads, in its entirety, as follows: "The burden is upon the non-moving party to comply with Rule 56(f) or to prove that the matter sought by discovery is or may be crucial to the non-moving party's case."Reeves,521 So.2d at 965.However, Reeves also states that "the evidence before the court[must] clearly show[ ] that the evidence sought is crucial to the non-moving party's case,"id., thus indicating a more stringent burden on the party opposing summary judgment than merely showing that the outstanding discovery "may be" crucial.The inconsistency in the statements in Reeves concerning the burden on a party opposing summary judgment who is requesting a Rule 56(f) continuance is not the only inconsistency in the cases interpreting the application of Rule 56(f), however.

In fact, while reviewing the cases cited by McGhee and conducting independent research on this issue, we discovered a pattern of inconsistent statements concerning the burden placed on the party seeking a Rule 56(f) continuance.In some cases, for example, a party seeking a Rule 56(f) continuance was required to explain specifically what items of outstanding discovery were crucial and why that discovery was essential to aid that party in formulating a response to the pending summary-judgment motion.SeeStallworth v. AmSouth Bank of Alabama,709 So.2d 458, 469(Ala.1997)("[TheRule 56(f)movant's] conclusory affidavit fails to even identify what crucial evidence pertaining to his squeeze-out claim discovery might disclose.");McCullar v. Universal Underwriters Life Ins. Co.,687...