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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

STEVE EIDEN,

NO. CIV. S-04-977 LKK/CMK

Plaintiff,

v. O R D E R

HOME DEPOT USA, INC., dba

HOME DEPOT #6609; and HD

PROPERTIES OF MARYLAND,

Defendants.

 /

The court is in receipt of both defendant’s motion for summary

judgment as well as plaintiff’s opposition to (and cross-motion

for) summary judgment. The court is further in receipt of

plaintiff’s declaration and request for a Rule 56(f) continuance.

“Federal Rule of Civil Procedure 56(f) provides a device for

litigants to avoid summary judgment when they have not had

sufficient time to develop affirmative evidence.” Burlington

Northern & Santa Fe R.R. Co. v. The Assiniboine and Sioux Tribes

of the Fort Peck Indian Reservation, Montana, 323 F.3d 767, 773.

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1 Defendants 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. Campbell, 138 F.3d at 779. 

2

Although district courts have “wide latitude in controlling

discovery,” State of California v. Campbell, 138 F.3d 772, 779

(9th Cir. 1998), the Supreme Court has required allowing discovery

“where the nonmoving party has not had the opportunity to discover

information that is essential to its opposition.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5 (1986). A Rule 56(f)

motion must be brought before the summary judgment hearing, AshtonTate Corp. v. Ross, 916 F.2d 516, 520 (9th Cir. 1990), and the

facts supporting a Rule 56(f) motion must be set forth in an

accompanying affidavit. Campbell, 138 F.3d at 779 (9th Cir.

1998).1

In the case at bar, plaintiff brings his action under the

Americans with Disabilities Act (“ADA”) and state law. Plaintiff

seeks injunctive relief and damages from defendant, Home Depot,

based on alleged access barriers at the Home Depot store located

at 2580 Notre Dame Boulevard in Chico, California. In its motion

for summary judgment, Home Depot maintains that plaintiff’s claims

are moot as the Store’s premises were recently modified and are now

in full compliance with the requirements of the ADA. Def.’s Mot.

for Summ. J. at 4:26. 

In plaintiff’s request for a Rule 56 (f) continuance,

plaintiff asserts that he “cannot responded to defendant’s mootness

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3

argument without conducting a site inspection.” An inspection by

both the plaintiff himself and plaintiff’s expert will allow

plaintiff to determine if the previously identified ADA violations

have been removed. Hubbard Dec. at ¶¶ 6-8. 

Given that discovery is not closed and plaintiff has yet to

inspect the recent modifications made at the Home Depot facility,

any motion for summary judgment by defendant would be premature at

this point in time. Knowing exactly what modifications were made

constitutes sought-after facts clearly essential to the plaintiff’s

ability to respond to the defendant’s motion for summary judgment.

Because plaintiff has set forth sought-after facts that are

“essential” to avoid summary judgment, defendant’s motion for

summary judgment is DENIED without prejudice to renewal after the

close of discovery. Plaintiff’s cross-motion is likewise DENIED.

IT IS SO ORDERED. 

DATED: September 14, 2005

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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