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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CAMERON PIERCE and PATRICIA

PIERCE, husband and wife; KAREN KIRBY,

a single woman; GREGORY SHERMAN and

PAULA SHERMAN, husband and wife,

MICHAEL LEPAGE and GERTRUDE

LEPAGE, husband and wife; 

LARRY BROWN, a single man; and RALPH

MARTINELLI, a single man, on behalf of

themselves and a class of similarly situated

individuals,

Plaintiffs,

v.

NOVASTAR MORTGAGE, INC., a foreign

corporation,

Defendant.

CASE NO. C05-5835RJB

ORDER GRANTING

CONTINUANCE OF MOTION

This matter comes before the Court on NovaStar Mortgage’s request for a continuance

under Federal Rule 56(f), contained in the response (Dkt. 223) to the Plaintiffs’ Motion for

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ORDER

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Partial Summary Judgment (Dkt. 213). The Court has considered the pleadings filed in support

of and in opposition to the request and the remainder of the file herein.

I. BACKGROUND AND DISCUSSION

The plaintiffs move for partial summary judgment, asking the Court to rule as a matter of

law that NovaStar Mortgage’s conduct violated the Consumer Loan Act and was per se unfair or

deceptive under the Consumer Protection Act as to Plaintiffs Larry Brown and Ralph Martinelli.

Dkt. 213 at 2.

Before moving for summary judgment on Mr. Brown’s claim, class counsel sought

interpretation of the Consumer Loan Act from the Washington State Department of Financial

Institutions (“the Department”). Dkt. 211-3, Exh. 26 at 12. The Department determined that,

based upon the assumptions provided, NovaStar Mortgage violated RCW 31.04.105(4).

Id. at 11. This letter is dated May 14, 2007. Id. at 9. 

 NovaStar Mortgage is scheduled to depose a witness for the Department of Financial

Institutions and seeks a continuance under Federal Rule 56(f) until after that deposition. Dkt.

223 at 7-8. In the response and accompanying affidavit, NovaStar Mortgage lists the date of the

deposition as “Tuesday, May 23, 2007.” Dkt. 223 at 8; Dkt. 223-2 at 2. In a conference call with

chambers staff, counsel for both parties confirmed that the deposition did not take place on

Wednesday, May 23, 2007, and is instead scheduled for May 29, 2007. NovaStar Mortgage also

informed the Court that it will be deposing Rick St. Onge on May 30, 2007. In the response and

accompanying affidavit, NovaStar Mortgage did not list this deposition as a basis for a

continuance. 

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ORDER

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During the conference call, counsel for NovaStar Mortgage also clarified the length of

the proposed continuance. NovaStar Mortgage asks that the Court allow for the filing of a

supplemental response on Monday, June 4, 2007. Class counsel, while not agreeing to the

continuance, stated that a supplemental reply could be filed on the day after the filing of any

supplemental response. 

Federal Rule 56 allows the Court to deny or continue a motion for summary judgment if

the defending party establishes that it is unable to properly defend against the motion:

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 refuse the application for 

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.

Fed. R. Civ. P. 56(f). The party seeking such a continuance must articulate how additional

discovery may preclude summary judgment. Qualls v. Blue Cross of California, Inc., 22 F.3d

839, 844 (9th Cir. 1994).

In this case, NovaStar Mortgage seeks a continuance on the portion of the plaintiffs’

motion seeking partial summary judgment that the defendant violated RCW 31.04.105(4). See

Dkt. 223 at 8. NovaStar Mortgage contends that it is unable to fully defend against this argument

until it conducts a deposition of a Department of Financial Institutions representative to

determine “[the Department’s] communications with plaintiffs’ counsel that led to the

interpretive letter on which plaintiffs now rely.” Id. It is unclear how evidence of such

communications will impact the summary judgment motion. On the other hand, the plaintiffs do

not contend that prejudice would result from a short continuance. The Court is aware that the

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ORDER

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trial date is quickly approaching. The Court should nevertheless delay its ruling on whether

NovaStar Mortgage violated RCW 31.04.105(4) as to Mr. Brown’s loan and allow NovaStar

Mortgage to supplement its response after conducting the May 29, 2007, deposition. The Court

will entertain supplemental briefing on this very narrow issue as follows: the defendant may

supplement its response on or before Thursday, May 31, 2007, and the plaintiffs may supplement

their reply on or before Friday, June 1, 2007. The parties are cautioned that any supplemental

briefing should be limited to addressing evidence and argument related to the Department of

Financial Institutions depositions.

II. ORDER

Therefore, it is hereby

ORDERED that NovaStar Mortgage’s request for a continuance under Federal Rule

56(f), contained in the response (Dkt. 223), is GRANTED as follows: the defendant may

supplement its response on or before Thursday, May 31, 2007, and the plaintiffs may supplement

their reply on or before Friday, June 1, 2007.

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address.

DATED this 29th day of May, 2007.

ARobert J. Bryan

United States District Judge 

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