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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JAMES P. DEFAZIO, et al.,

NOS. CIV. 04-1358 WBS GGH

 05-0559 WBS GGH

Plaintiffs, 05-1726 WBS GGH

CONSOLIDATED 

v. ORDER RE: REQUEST FOR STAY OF

MOTION FOR PARTIAL SUMMARY

JUDGMENT

HOLLISTER, INC., et al.,

Defendants.

_____________________________/

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After filing their Fifth Amended Complaint, plaintiffs

Jim DeFazio, Theresa Beetham, Brenda Dimaro, DeLane Humphries,

Hallie Lavick, Michael McNair, Sonya Pace, Judy Seay, Nancy

Russell Stanton, and Cindy Wirth (collectively “plaintiffs”)

filed a motion on August 15, 2008 for partial summary judgment on

their prohibited transaction claims against defendants Hollister,

Inc., Hollister Employee Share Ownership Trust, The Firm of John

Dickinson Schneider, Inc. (“JDS”), Samuel Brilliant, Richard

Fremgen, Donald Groneberg, Charles Gunderson, Alan Herbert, James

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1 Because of plaintiff’s rescheduling of the hearing

date, the motion for summary judgment was filed and re-noticed on

August 26, 2008. 

2

Karlovsky, Lori Kelleher, James McCormack, Charles

Schellentrager, Howard Simon, Loretta Stempinski, Michale Winn,

and Richard Zwirner pursuant to Federal Rule of Civil Procedure

56.1

 Plaintiff Kathleen Ellis joined plaintiffs’ motion for

partial summary judgment on September 15, 2008. On August 20,

2008, defendants JDS, Hollister Inc., Alan F. Herbert, and

Richard I. Fremgen moved to stay consideration of plaintiffs’

motion for partial summary judgment until the close of discovery

pursuant to Federal Rule of Civil Procedure 56(f).

Federal Rule of Civil Procedure 56(f) provides that,

“[i]f a party opposing the motion shows by affidavit that, for

specified reasons, it cannot present facts essential to justify

its opposition, the court may: (1) deny the motion; (2) order a

continuance to enable affidavits to be obtained, depositions to

be taken, or other discovery to be undertaken; or (3) issue any

other just order.” Fed. R. Civ. P. 56(f). For a court to grant

a Rule 56(f) request, the party requesting it “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.” California

v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). A court must

liberally construe a Rule 56(f) request and “should continue a

summary judgment motion upon a good faith showing by affidavit

that the continuance is needed to obtain facts essential to

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preclude summary judgment.” Id.; Visa Int’l Serv. Ass’n v.

Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986).

The court finds that the defendants’ request, along

with the declaration by defense counsel L. Andrew Brehm, meets

this standard. Accordingly, pursuant to Federal Rule of Civil

Procedure 56(f), the court will deny plaintiffs’ motion for

partial summary judgment without prejudice to its renewal

following the close of discovery. Discovery is set to conclude

on January 30, 2009. (Feb. 19, 2008 Status (Pretrial Scheduling)

Order 2:20-22.) In the interests of judicial economy, even

though not all defendants named in the motion for partial summary

judgment have made requests pursuant to Federal Rule of Civil

Procedure 56(f), the court will deny the motion for partial

summary judgment without prejudice as to all defendants.

IT IS THEREFORE ORDERED that plaintiffs’ motion for

partial summary judgment of the prohibited transaction claims be,

and the same hereby is, DENIED without prejudice to plaintiffs’

right to renew such motion after the close of discovery.

DATED: October 6, 2008

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