Moore v. Garnand

• Decision Date: 08 March 2022
• Docket Number: CV 19-0290 TUC RM (LAB)
• Court: U.S. District Court — District of Arizona
• Parties: Greg Moore; et al., Plaintiffs, v. Sean Garnand; et al., Defendants.

Greg Moore; et al., Plaintiffs,
v.
Sean Garnand; et al., Defendants.

No. CV 19-0290 TUC RM (LAB)

United States District Court, D. Arizona

March 8, 2022

ORDER

Leslie A. Bowman, United States Magistrate Judge

Pending before the court is a motion, filed by the plaintiffs on December 21, 2021, “for an Order deferring briefing on Defendants' Motion for Summary Judgment” pursuant to Fed.R.Civ.P. 56(d). (Doc. 311, p. 1); see (Doc. 310) (Declaration in support of motion) The defendants filed a response on January 14, 2022. (Doc. 340) The plaintiffs did not file a timely reply.

The plaintiffs filed a renewed motion and declaration for an order deferring briefing on February 16, 2022. (Doc. 353) The defendants filed a response on February 23, 2022. (Doc. 354) The plaintiffs filed a reply on March 2, 2022. (Doc. 355)

Also pending are two related motions. Previously, on March 31, 2021, the defendants filed a motion “to stay discovery pending resolution of their motion for summary judgment based on qualified immunity.” (Doc. 279) The plaintiffs filed a response on April 13, 2021. (Doc. 283) The defendants filed a reply on April 20, 2021. (Doc. 284)

On August 4, 2021, the plaintiffs filed a motion to compel the deposition appearance of Tucson Police Department Officers Arnaud and Matthew. (Doc. 294) The defendants did

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not file a timely response, but they informed the plaintiffs that their previously filed motion to stay discovery addressed this issue. (Doc. 294, p. 3)

Background

The plaintiffs in this action claim their constitutional rights were violated when the defendants executed search warrants in connection with a Tucson Police Department (TPD) arson investigation into the destruction of the Forgeus Apartments on June 8, 2017. (Doc. 1) The plaintiffs bring this action pursuant to 42 U.S.C. § 1983. (Doc. 1, p. 4)

Early in the case, the court granted in part the defendants' motion to stay discovery of the TPD arson investigation files pursuant to the Law Enforcement Investigatory Privilege (LEIP). (Docs. 74, 113) Accordingly, the plaintiffs' scope of discovery has been significantly limited up until recently.

On March 25, 2021, the defendants sought permission to file a motion for summary judgment in excess of the page limit set by LRCiv 7.2(e)(1). (Doc. 274) On March 31, 2021, they filed the pending motion that discovery be stayed pending the resolution of their motion for summary judgment on the issue of qualified immunity. (Doc. 279) On August 4, 2021, the plaintiffs filed the pending motion to compel depositions. (Doc. 294)

On December 13, 2021, this court ordered that the defendants may file a motion for summary judgment in excess of the page limit. (Doc. 307) The Clerk subsequently filed the defendants' lodged summary judgment motion. (Doc. 275)

That same day, this court lifted the Law Enforcement Investigatory Privilege (LEIP) covering the TPD arson investigation files. (Doc. 306) The defendants subsequently disclosed to the plaintiffs certain documents that had been previously withheld including the “unredacted transcript of the June 8, 2017 telephonic affidavit, ” which was used to obtain one of the search warrants. (Doc. 316, pp. 2-3); see (Doc. 340, p. 13) (describing the documents disclosed to the plaintiffs to date)

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On December 21, 2021, the plaintiffs filed the pending motion “for an Order deferring briefing on Defendants' Motion for Summary Judgment” pursuant to Fed.R.Civ.P. 56(d). (Doc. 311, p. 1); see (Doc. 310) (Declaration in support of motion)

The next day, on December 22, 2021, the defendants sought permission to amend their motion for summary judgment to incorporate the newly disclosed documents. (Doc. 316) The court granted its permission on January 14, 2022. (Doc. 339) The defendants' amended motion for summary judgment on the issue of qualified immunity was filed on February 3, 2022. (Doc. 348)

The plaintiffs filed the pending renewed motion and declaration to stay briefing on the defendants' motion for summary judgment on February 16, 2022. (Doc. 353)

Discussion: Motion to Stay Briefing Pursuant to Rule 56(d), (Docs. 311, 353)

Rule 56(d) reads as follows:

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to the pending motion for summary judgment], 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.

“Federal Rule of Civil Procedure [56(d)] provides a device for litigants to avoid summary judgment when they have not had sufficient time to develop affirmative evidence.” Burlington N. Santa Fe R. Co. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9^th Cir. 2003) Ordinarily, “[w]here . . . a summary judgment motion is filed . . . before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule [56(d)] motion fairly freely.” Id.

“Notwithstanding this [liberal] policy, a Rule 56(d) movant must still make specific showings to be entitled to relief.” Stuart v. City of Scottsdale, No. CV-20-00755-PHX-JAT, 2021 WL 75830, at *3 (D. Ariz. Jan. 8, 2021). “A party requesting a continuance pursuant

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to Rule 56(d) therefore must show (1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are ‘essential' to resist the summary judgment motion.” Id. (punctuation modified). “A party requesting a continuance pursuant to [the Rule] must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment.” Id; see Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1100 (9^th Cir. 2006).

Courts usually take a permissive attitude when considering a Rule 56(d) motion. Here, however, the defendants move for summary judgment on the issue of qualified immunity, which ordinarily should be decided before extensive discovery. The Ninth Circuit explains as follows:

By design, the issue of qualified immunity is usually resolved “long before trial.” The Supreme Court has repeatedly stressed the importance of deciding qualified immunity “at the earliest possible stage in litigation” in order to preserve the doctrine's status as a true “immunity from suit rather than a mere defense to liability.” Early determination is often possible “because qualified immunity most often turns on legal determinations, not disputed

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