he'd be the rear rare exception in the rule there needs to be a compelling policy reason to skip over discovery entirely as was done in this case but this case honour's is not within the rare class of cases and words summary judgment without discovery is appropriate to the contrary this case involves claims that are all heavily factored in by granting summary judgment t served during that time but i think it's important to know that mr adams made a forceful claim that the summary judgment mission should not be decided before discovery had been taken well did that did the federal rules preclude did the federal rules preclude her from seeking discovery want a summary judgment motion was pending i don't i don't believe that they precluded it but i will just say that i think m their inspectors who have been giving instructions to mr adams it's our discovery and the actions of the defendants and their instructors in determining the terms and conditions of pre employment including controlling the details of her work not signed and that gets to the heart of the problem of having summary judgment without discovery you get a defendant who gets to who's in control of the evidence who gets to essentially  discovery and so that that makes all the difference in the world this would be a very different case before the court if miss adams was coming to the court saying i'd like to have more discovery even though a discovery is close discovery never even started in fact initial disclosures were never exchanged the names and addresses and contact information of key witnesses never had it until apparently the summary judgment is recognized your honor is by supreme court precedents the supreme court in cellar tax and henderson vs liberty lobby talks about the burden shifting that occurs under rule fifty six and inherent in that is reasonable or i think the term adequate is use an adequate opportunity to conduct discovery and the court has expressed concern about a defendant essentially indicates my age but i think that was a better role in a row we have now because it seems under that room at least the way i thought it was applied and used this when you were facing a motion for summary judgment you could seek discovery at that time in order to respond to it because the motion listed all kinds of facts that you have as a plaintiff in this case you had no idea if they were true or false so you said in court i would like more discovery now the new rule it seems puts you in the position of filing a response and then it's up to the district court to say well whether or not in its discretion you will be given discovery after you've already responded is that not the scenario we have  here i think if the rule does suggest that kind of a changed but i think it's also important to know that while a real fifty six will allow the summary judgment motions to be filed at any time that doesn't mean it should be or that  it's not premature it's done and the standard for rules of physics the review remains the same it should be liberally treated and there's a reason for that whether we're at we're at abuse of discretion according to the rule are we not at this point if that's true your honor but it isn't an abuse of discretion and i would suggest to the court that again timing matters so a rule fifty  six the affidavit provided before discovery has commenced is very different than one that's provided either during or after the close of discovery the deference or rather the i guess the how affidavit for being too general but that's not really fair because without having any discovery without for example having to pose some of these affiance and not and i think we can we can all think of more specific things that could have been a like who does casey work for she knew that she had reported her situation to a woman named facing a state case and on the work site but we do not know even yet today who casey works for so that might have been something to throw in there i mean when you're talking about specific questions that need to be answered that seems to be a really easy one your honor actually my question is answered in the record i think that in the in the briefing  t planes defendants have admitted that casey works for them who tried to brush aside her comments as having only come from an administrative assistant right we know that we know that now did you know that when you filed your a discovery presents the opportunity to test all kinds of facts that follow from some of these leads that miss adams hat and it's it's essentially flipping the system on its head did you need to know that you didn't know well for example miss adams needed to know why it was casey telling her that she needed to submit to this harassment or otherwise lose her job is that the culture of the work site the planes is running are are there other instances of this happening were some of the other people who were telling her that she needed essentially to keep her mouth shut if she wanted to keep her job were those employees of planes where are they getting this information from are they acting on their own or are they acting according to some unspoken company policy standing at from this point having no discovery it's a lot of speculation but that's what discoveries are that it's about sitting down having depositions nearly issues and then only then can you start to ask some more specific questions and i was completely missing in this case your hono employer your honor it doesn't it is some evidence that it is not the exclusive evidence the master services agreements certainly lays out some of the terms but if the parties deviated from that in practice through their course of dealing which is what mr adams is alleging then the strength and importance of the master services agreement is a matter for the jury to weigh and so it is not you know the district court treated the master services agreement as if it were  of either the work site or the some contractors were and there are there having knowledge of this harassment occurring on their site and allowing it to happen legally can also be found based solely on the control of the premises and so even if the place defendants didn't control those employees but they had control of the premises and allowed this conduct to happen they this is not that we're talking about actions of other employees your honor and invents a collage express that recognizes that it doesn't need to be a physical defect on the property the conduct of other human beings can be the dangerous condition and we've stated that in the breach at this point i'd like to reserve the remainder of my time thank you thank you i tear from reality good morning ma'am please the court my name is kosi green and i represent the plane's defendants in this matter we also currently have a motion to dismiss ms adams appeal for being on timely and i understand that ms adams did not discuss  this morning but i would like to go into that to to start if the court is interested otherwise i'll just address miss adams argument go ahead it's important that we have jurisdiction yes it is important that the court has three had not been served at all and was not a party to the case and so when the summary judgment was entered and that was on may rd two thousand and nineteen plaintiffs time or miss adams time rather to follow her timely appeal ran at that point and would have expired sometime in june thirty days after the partial summary judgment was entered now ms adams has argued in response defendants are not considered in the in the analysis of whether the order is final and in this case like i said the plaintiffs she filed her original complaint in state district court on what the august rd two thousand eight hundred summons were issued she never served two months later planes removed the case to the federal court planes answered and then planes filed  j at no point did miss adams serve say three the only time that there was any attempt at service was after the district court had dismissed claims completely from reading this in instance and we have a unique instance here look at directions about the district court gave to the party as regards service that is one could clearly have dissipated in this scenario that service was going to be achieved or at least attempted and that issue resolved promptly ugh your honor the court did enter in order to show cause the i believe it was the same day that it entered the partial summary judgment but if we look at the summary judgment in the court's extensive memorandum opinion in order there is nothing in either one of those dots that indicates that the court was even thinking about these or thinking about that the i'm sorry that this case would continue the order to show cause given that the case had actually been pending for i believe nine months at that point with no attempt at service not zero case has been pending at nine months the court has the court has a duty and to manage its dark it and at that point the court was issuing the order to so called to see if the plaintiffs were even going to get the plaintiff excuse me but going to even continue the litigation there's no indication that the court is contemplating further proceedings and that would include planes were anybody else at that point the plaintiff did accomplish service  counsel can i just ask you that following up on your reference to the keaton isn't it true in those cases there was never a subsequent service where here there was is that a distinction we should not considered the court stated the subsequent adjudication did not necessarily negate that an order was final and appealable when it dealt with only those parties before the court so the subsequent adjudication i don't think effects in this case because at that point claims without all of the claims that were pending before the court as to any part of the court dismissed those claims with prejudice and the order and the court's opinion does not indicate any indication of in tipping further proceedings in the cases cited by by ms venoms that say that look at the court intent when you look to those cases it's very clear that the court acknowledges there are under served part potential parties to the case unser defendants in the caption they look to representations i don't know we have that here the court was aware of answer arns the court was aware of unser parties in its order to show cause but we don't have any indication by the court in its partial summary judgment and the memorandum opinion in order to reduce expenses by the way that it was in excusing that it was anticipating that service would occur and that this litigation would continue there's no end in the other cases the orders by the court there it's very clear that the court was contemplating that the case would continue that it was not done and i think we i think we have your arguments on jurisdiction what about discovery yes discovery not every party is is entitle to discovery there right out of the box air or in response to his motion for s judgment in that's evident with the the application of route fifty six d the move contemplates that a motion for summary judgment might be final when discovery had not been hand filed you filed your as more specific the for the very reason that you need discovery well but there was evidence before the court to which she could have responded and provided what her battle plan was in terms adams headed mit that c three the unserved parties or the answer defendant were her employer claims it was before the court on to two different routes of imputed liability forward to the court provides a master service agreement that is very expressively provides a c three if the employer is an independent contractor and the independent contractor relationship is a stablished by that contract planes also comes forward and sets out three ability for affidavits actually setting out that they do not pay us adams the c three dollars is her employer and that they they have control if they knew what was going on on the work site the affidavits establish that they did not hand but they do own the premises where the pipeline is being built the affidavits establish that the work is provided in the inspection services construction management services is provided primarily by independent rd con i'm sorry we don't run the sexual acts open fact that we don't know about that well as if we look further into the e e o c allegations that are terrorist or her complaint although it appears that all of the acts actually occurred maybe minus one actually occurred off the work site off the actual job site off the premises and we have the issue then to knowledge of your well file as to what was occurring occurring even if it were one and so on the work site the only allegation of knowledge that is included in her affidavit is that she and her in her complaint as well that she spoke to casey walden who was an administrative assistant for claims and she spoke to her at a bar in the restroom and but miss walden had no management no management responsibilities and the plaintiff defendants through their a finance stated that they were never aware of any of this and since until the e e o c complaints were filed so the knowledge has been or her counsel fifty six the affidavit the court did not abuse discretion and finally it was not specific enough time had passed and counsel had and i have an opportunity to give the course specifically what it plan as it were was for discovery as opposed to this broad brushed i would like discovery on everything potentially that could be relevant to what the questionis  ms adams counsel also brought up the premises liability claim and that one ability claim and i see that my time is almost expired so i'll be very brief here that liability claim was raised in her response to the motion for summary judgment it was not raised in emotions and to miss a minute and it also provided the court the wrong standard it is not necessarily standard ordinary care when you're looking at a premises why billeted claim involving independent contractors again as as the court noted these are questions of control the premises liability claim would come into in terms of an image it and it contractor would come into play if there was control the affidavits as well as the master service agreement which provides the essential legal underpinnings of the relationship between c three and out the district court was clearly anticipating that the action would proceed with regards to the form of the rule fifty six d affidavit the district court in the defense we want to elevate form o the reality is that the council had no choice but to request broad categories of facts and with respect to the disputed facts counsel's essentially saying that the court should trust the defendant