IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BLUE ROCK INVESTMENTS, et 

al.,

Plaintiffs,

v.

CITY OF XENIA, OHIO, et al., 

Defendants.

:

:

:

Case No. 3:17-cv-409

JUDGE WALTER H. RICE

ORDER SUSTAINING BADGER CONSTRUCTION’S RULE 56(d) 

MOTION FILED IN RESPONSE TO COMPLETE GENERAL 

CONSTRUCTION COMPANY’S MOTION FOR SUMMARY 

JUDGMENT (DOC. #123); STAYING DEADLINE TO RESPOND TO 

MOTION FOR SUMMARY JUDGMENT; CONFERENCE CALL SET

On June 15, 2020, Third Party Defendant, Complete General Construction 

Company, filed a Motion for Summary Judgment, Doc. #122. In response, Third 

Party Plaintiff, Badger Construction Company, Inc., filed a Rule 56(d) motion, Doc. 

#123, asking for additional time to conduct discovery, including taking several 

depositions, before responding to the motion for summary judgment. Fed. R. Civ. 

P. 56(d) provides: 

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant 

shows by affidavit or declaration that, for specified reasons, it cannot 

present facts essential to justify its opposition, 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.

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Fed. R. Civ. P. 56(d).

Badger’s counsel, Carmen Sarge, has submitted an Affidavit in support of 

the motion. He states that, although the parties have exchanged basic written 

discovery, no depositions have been taken. He further indicates that a mediation 

was held in February of 2020, and that the parties have reached a settlement 

contingent on approval by the Probate Court and the Estate of Sam Boymel.1 That 

process has been delayed by COVID-19. If approval is not granted, then Badger 

needs to take depositions of certain key witnesses concerning Complete General 

Construction’s activities at the demolition site prior to responding to the summary 

judgment motion. Doc. #123-1.

Pursuant to Fed. R. Civ. P. 56(d), the Court SUSTAINS Badger 

Construction’s Rule 56(d) motion, Doc. #123, and will stay the deadline for Badger 

to respond to Complete General Construction Company’s Motion for Summary 

Judgment. 

The Court notes that trial is currently set for December 7, 2020. The Court 

neglected to issue a scheduling order following the last conference call held on 

December 5, 2019. In light of the pending settlement and COVID-19, the dates

suggested in the parties’ Joint Rule 26(f) Report, filed on August 1, 2019, Doc. 

#102, may no longer be viable. Accordingly, the Court will hold a conference call 

1

 It is not clear whether this is a global settlement or whether it is limited to 

Plaintiffs’ claims against Badger. 

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on ______________, 2020, at _______, to discuss the status of the pending 

settlement and adjust deadlines if necessary. 

Date: July 8, 2020

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

July 22 4:00 PM

(tp - per Judge Rice authorization after his review)

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