IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CAROL A. WILSON, et al., 

Plaintiffs,

v. Civil Action 2:17-cv-1071

Magistrate Judge Jolson

EBONY CONSTRUCTION LLC,

Defendant.

OPINION AND ORDER

This matter, in which the parties have consented to the jurisdiction of the Magistrate Judge 

pursuant to 28 U.S.C. § 636(c), is before the Court on Defendant’s Motion for Leave to File an 

Amended Answer and Defenses and Counterclaims (“Motion for Leave to Amend”) (Doc. 14) and 

its Motion for Fed. R. Civ. P. 56(d) Relief (“Rule 56(d) Motion”) (Doc. 23). For the reasons that 

follow, the Motion for Leave to Amend (Doc. 14) is GRANTED and the Rule 56(d) Motion (Doc. 

23) is GRANTED in part. 

I. BACKGROUND

Plaintiffs are the Administrator and Trustees of jointly administered, multiemployer fringe 

benefit programs established for the benefit of employees who perform work pursuant to collective 

bargaining agreements with the International Union of Operating Engineers, Local Nos. 18, 18A 

and 18B (the “Union”). (Doc. 1 at ¶¶ 2, 9). The Administrator of the Funds is Plaintiff Carol A. 

Wilson. (Id. ¶ 2). Plaintiffs brought suit against Defendant Ebony Construction Co. (“Ebony”), 

alleging that Defendant failed to pay a significant amount of fringe benefit contributions owed 

under the collective bargaining agreement. (Id. at ¶¶ 6–8). Plaintiffs filed suit under the Employee 

Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1132(a)(3) and 1145, to recover these 

contributions. (Id. at ¶ 1). 
2

Under the current scheduling order, discovery closes on October 12, 2018, and dispositive 

motions are due November 15, 2018. (Doc. 13). On July 7, 2018, Defendant filed its Motion for 

Leave to Amend. (Doc. 14). Plaintiffs opposed that Motion on July 27, 2018 (Doc. 17), and 

Defendant filed a Reply (Doc. 22). On July 27, 2018, Plaintiffs filed a Motion for Summary 

Judgment. (Doc. 16). Rather than filing an opposition, Defendant filed a Motion for Rule 56(d)

relief, seeking “additional time to complete discovery before responding to Plaintiffs’ Motion for 

Summary Judgment in order to complete written discovery and conduct depositions.” (Doc. 23). 

Plaintiffs opposed the Rule 56(d) Motion (Doc. 24), and Defendant filed a Reply (Doc. 25). Thus, 

both Motions are now ripe for review.

II. MOTION FOR LEAVE TO AMEND (Doc. 14) 

Defendant seeks leave from this Court to amend its answer, defenses and counterclaims, 

alleging, specifically, that the Funds are wrongfully diverting its monthly benefit contributions to 

the amounts currently disputed in this action. (See generally Doc. 14). 

A. Standard

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that when a party seeks 

leave of court to file an amended pleading, “[t]he court should freely give leave when justice so 

requires.” However, “[o]nce a scheduling order’s deadline passes, a [party] first must show good 

cause under Rule 16(b) for failure earlier to seek leave to amend before a court will consider 

whether amendment is proper under Rule 15(a).” Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 

2003). “Rule 16, in other words, prescribes the time by which any motion for leave to amend must 

be filed; Rule 15 provides guidance to the courts on deciding the merits of timely motions.” Cooke 

v. AT&T Corp., No. 2:05-CV-374, 2007 WL 188568, at *1 (S.D. Ohio Jan. 22, 2007). This rule, 

which allows a liberal policy in favor in favor of granting amendments, “reinforce[s] the principle 
3

that cases ‘should be tried on their merits rather than the technicalities of pleadings.’” Inge v. Rock 

Finan. Corp., 388 F.3d 930, 936 (6th Cir. 2004) (quoting Moore v. City of Paducah, 790 F.2d 557, 

559 (6th Cir. 1986)). Thus, the trial court enjoys broad discretion in deciding motions for leave to 

amend. See Gen. Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). In exercising 

its discretion, the trial court may consider such factors as “undue delay, bad faith or dilatory motive 

on the part of a movant, repeated failures to cure deficiencies by amendments previously allowed, 

undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of 

the amendment.” Foman v. Davis, 371 U.S. 178, 183 (1962). Relevant here, “[a]t this stage of 

the litigation, the Court is charged with determining whether the futility of an amendment is so 

obvious that it should be disallowed.” Bear v. Delaware Cnty., Ohio, No. 2:14-CV-43, 2015 WL 

1954451, at *3 (S.D. Ohio Apr. 28, 2015).

Here, the parties dispute the deadline by which a party needed to seek leave to amend. 

Defendant proposed the parties’ current case schedule (Doc. 12), which provides that “[a]ny 

motion to amend the pleadings or join additional parties shall be filed on July 7, 2018. (See id. at 

¶ 7). The Court adopted this case schedule. (Doc. 13). However, Defendant filed its Motion for 

Leave to Amend two days late, on July 9, 2018. (Doc. 14). Defendant explains that it filed its 

Motion on the Monday following the Saturday deadline “due to an innocent, but mistaken 

application of [Fed. R. Civ. P.] 6(a)(1)(C) to automatically treat its Saturday deadline as extended 

to Monday.” (Doc. 22 at 3). The Court gives Defendant the benefit of the doubt and views its

misunderstanding as “excusable neglect” under Fed. R. Civ. P. 6(b). Accordingly, the Court treats

Defendant’s Motion as if timely filed and applies Fed. R. Civ. P. 15(a)’s liberal standard for 

amendment. 
4

B. Discussion

In reviewing their briefing on this matter, the Court finds that the parties rely on opposing 

interpretations of the operative contracts and starkly different perceptions of the critical facts at 

issue. For example, Defendant contends that “Plaintiff-Funds are attempting to circumvent the 

judicial process in this case by wrongfully diverting Ebony Construction’s current monthly benefit 

contributions and applying those contributions to the amounts that the Funds claim Ebony 

Construction owes them in this lawsuit, which are disputed.” (Doc. 14 at 1). Plaintiffs respond 

that ERISA preempts such counterclaims, and that the Funds “have discretion to determine 

allocation of contributions as ERISA fiduciaries.” (Doc. 17 at 4–7 (citing Bunn Enterprises, Inc. 

v. Ohio Operating Engineers Fringe Ben. Programs, 7 F. Supp. 3d 752 (S.D. Ohio 2014), aff’d

606 F. App’x 798 (6th Cir. 2015))). Thus, Plaintiffs argue, amendment is futile. In contrast, 

Defendant asserts that ERISA is silent on this matter but that federal law recognizes a common 

law claim for restitution of overpayments made to multiemployer plans. (See Doc. 22 at 10 (citing 

Trustees of Painters Union Deposit Fund v. Interior/Exterior Specialist Co., 371 F. App’x 654 

(6th Cir. 2010))). 

It may well be the case that ERISA preempts Defendant’s proposed counterclaims. 

However, given the parties’ opposing characterizations of the contracts and applicable law at issue, 

the Court cannot conclude at this stage, that the futility of Defendant’s amendment “is so obvious 

that it should be disallowed.” Bear, 2015 WL 1954451, at *3. Accordingly, the Court GRANTS

Defendant’s Motion for Leave to Amend (Doc. 14). 

III. RULE 56(D) MOTION (Doc. 23) 

Defendant has also moved for relief under Fed. R. Civ. P. 56(d), alleging that it must have 

an opportunity to complete discovery to respond sufficiently to Plaintiffs’ summary judgment 
5

motion. (See generally Doc. 23). As set forth below, the Court finds that Defendant has met its 

burden under Rule 56(d) and accordingly allows Defendant to pursue discovery before responding 

to Plaintiffs’ summary judgment motion. 

A. Standard 

Rule 56(d) of the Federal Rules of Civil Procedure establishes the proper procedure when 

a party asserts that additional discovery is necessary to respond to a motion for summary judgment:

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. 

Fed. R. Civ. P. 56(d). “Rule 56(d) is intended to provide a mechanism for the parties and the court 

‘to give effect to the well-established principle that the plaintiff must receive a full opportunity to 

conduct discovery to be able to successfully defeat a motion for summary judgment.’” Chubb 

Custom Ins. Co. v. Grange Mut. Cas. Co., No. 2:07-CV-1285, 2012 WL 1340369, at *2 (S.D. Ohio 

April 17, 2012) (quoting Cardinal v. Metrish, 564 F.3d 794, 797 (6th Cir. 2009)). “Likewise, it is 

improper to grant summary judgment if [the party seeking Rule 56(d) relief] is given an insufficient 

opportunity for discovery.” Dish Network LLC v. Fun Dish Inc., No. 1:08-CV-1540, 2011 WL 

13130841, at *3 (N.D. Ohio Aug. 12, 2011) (citing White’s Landing Fisheries, Inc. v. Bucholzer, 

29 F.3d 229, 231–232 (6th Cir. 1994)). 

As for the required affidavit or declaration, it must “‘indicate to the district court [the 

party’s] need for discovery, what material facts [the party] hopes to uncover, and why [the party] 

has not previously discovered the information.’” Clifford v. Church Mut. Ins. Co., No. 2:13-CV853, 2014 WL 5529664, at *2 (S.D. Ohio Nov. 3, 2014) (alterations in original) (quoting Cacevic 
6

v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000)). “The Sixth Circuit has held that it is not 

an abuse of discretion for the district court to deny the Rule 56 request for discovery when the 

party ‘makes only general and conclusory statements [ ] regarding the need for more discovery 

and does not show how an extension of time would have allowed information related to the truth 

or falsity of the [claim] to be discovered.’” Snow v. Kemp, No. 10-2363-STA-CGC, 2011 WL 

345864, at *1 (W.D. Tenn. Feb. 2, 2011) (second alteration in original) (quoting Ironside v. Simi 

Valley Hosp., 188 F.3d 350, 354 (6th Cir. 1999)). 

Where, as here, the party seeking relief under Rule 56(d) has complied with the Rule’s 

procedural requirements, “the Sixth Circuit has provided guidance as to the factors a court should 

evaluate in considering whether to permit the requested discovery.” Cressend v. Waugh, No. 2:09-

CV-01060, 2011 WL 883059, at *2 (S.D. Ohio Mar. 11, 2011) (citing CenTra, Inc. v. Estrin, 538 

F.3d 402, 420 (6th Cir. 2008)). 

These factors include (1) when the [party seeking discovery] learned of the issue 

that is the subject of the desired discovery; (2) whether the desired discovery would 

. . . change[] the ruling . . . ; (3) how long the discovery period has lasted; (4) 

whether the [party seeking discovery] was dilatory in its discovery efforts; and (5) 

whether the [party moving for summary judgment] was responsive to discovery 

requests. 

Id. (alterations in original) (internal quotation marks omitted) (citing Plott v. Gen. Motors Corp., 

71 F.3d 1190, 1196–97 (6th Cir. 1995)). Relevant here, the Sixth Circuit has made clear that “[i]f

the [party seeking relief under Rule 56(d)] has not ‘receive[d] a full opportunity to conduct 

discovery,’ denial of that party’s Rule 56(d) motion and ruling on a summary judgment motion 

would likely constitute an abuse of discretion.” Id. (second alteration in original) (quoting Ball v. 

Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004)).
7

B. The Discovery at Issue 

Defendant argues that it requires numerous pieces of discovery before it can respond fully 

to Plaintiffs’ summary judgment motion. (See generally Doc. 23). The Court places the discovery 

into three categories. First, Defendant contends it is entitled to discovery regarding the Funds’ 

“oldest outstanding balance policy,” arguing that Plaintiffs “seek damages based on [the policy].” 

(Id. at 13). Defendant’s request for this policy and Plaintiffs’ response provides: 

5. All documents reflecting on, referring to, or relating to Plaintiffs’ policy to 

credit contributions towards the oldest outstanding amounts due as claimed 

in the Funds’ letter dated May 14, 2018 to Andrew J. Marton. 

Response: Objection. Request seeks production of documents not relevant 

to any of Plaintiffs’ claims or Defendants’ defenses. Any policy of the 

funds regarding application of contributions to outstanding amounts is of no 

significance to whether [sic] Defendant is currently obliged to make the 

alleged contributions owed to the funds pursuant to the CBA. 

(Doc. 23-9 at 4). Defendant maintains that “[t]he Funds’ assertion that this document request is 

irrelevant cannot be reconciled with the fact that the Funds attached an affidavit of their

Administrator specifically referring to and relying on that very policy.” (Doc. 23 at 13–14 (citing 

Doc. 16-1 at ¶ 7 (“Per the policy of the Funds, these January-May 2018 payment amounts were 

applied to the older delinquent contributions found in the September 20, 2017 audit first, which 

resulted in amounts due for January-May 2018 to remain unpaid.”))). 

Second, Defendant seeks an audit conducted on July 10, 2018, which Plaintiffs originally 

refused to produce, arguing that it was irrelevant. (See id. at 14 (citing Doc. 23-10 at 6)). It 

appears, however, that Plaintiffs recently produced the requested audit on September 4, 2018. (See

Doc. 24 at 2 n.1; Doc. 25 at 3). While Defendant takes issue with Plaintiffs’ delay in producing 

the audit (see Doc. 25 at 7–8), the Court finds that this discovery dispute has been sufficiently 

resolved. 
8

Third, Defendant alleges that Plaintiffs “refused to provide other documents critical to 

conducting depositions in this case and ultimately responding to a Motion for Summary 

Judgment.” (Doc. 23 at 15). Defendant asserts that the Funds refused to provide: 

• Documents exchanged between the Funds and Ebony Construction in response 

to document requests 2 and 3; 

• The Funds’ correspondence regarding Ebony Construction that the Funds had 

with labor organizations or other multiemployer plans in response to document 

requests 6 and 7; 

• The Funds’ correspondence with Ebony Construction’s employees in response 

to document request 8; the Funds’ bylaws, rules and regulations, reciprocal 

agreements, and resolutions pertaining to operation of the plans in response to 

document request 13; 

• The Funds’ trustee minutes in response to document request 14; and 

• Communications between the Funds and Ebony Construction in response to 

document request 29. 

(Id. at 15–16 (citing Docs. 23-1, 23-9)). 

Plaintiffs respond that “[n]one of the Discovery will address the question of whether 

[Defendant] owed the delinquent contributions alleged.” (Doc. 24 at 3). Plaintiffs emphasize that 

Section 515 of ERISA curbs Defendant’s attempt to raise “‘unrelated’ and ‘extraneous’ defenses, 

i.e., those relying on facts established by extrinsic documents or information.” (Id. (quoting Kaiser 

Steel Corp. v. Mullins, 455 U.S. 72, 88 (1982))). Plaintiffs also assert that the Collective 

Bargaining Agreement is unambiguous, and, therefore, the requested discovery is inadmissible

extrinsic evidence. (See id. at 4–9). 

C. Analysis 

As noted, supra, Defendant must clear a procedural hurdle and then, on balance, satisfy the 

Plott factors. As set forth below, the Court finds Defendant has met its burden under Rule 56(d) 

and is entitled to further discovery before responding to Plaintiffs’ summary judgment motion. 
9

1. Defendant’s Affidavit

As a threshold matter, Defendant has complied with the technical requirements of Rule 

56(d) by filing a motion setting forth the specific information it needs to respond to Plaintiffs’ 

summary judgment motion. In other words, Defendant’s motion properly “demonstrate[s] [its] 

need for further discovery with particularity.” Williams v. Goodyear Tire & Rubber Co., No. 11-

2-35-STA, 2012 WL 1228860, at *3 (W.D. Tenn. Apr. 11, 2012). The Court does not find—nor 

do Plaintiffs argue—that Defendant’s Rule 56(d) Motion “‘makes only general and conclusory 

statements [] regarding the need for more discovery.’” Cacevic, 226 F.3d at 488 (quoting Ironside, 

188 F.3d at 354). To the contrary, Defendant’s Motion describes the discovery it seeks, 

specifically articulates the basis for its request, and provides a comprehensive explanation of the 

discovery’s necessity. Accordingly, Defendant has cleared Rule 56(d)’s procedural hurdle. 

2. The Plott Factors

Having found that Defendant has satisfied the procedural requirements of Rule 56(d), the 

Court now turns to the five factors from Plott v. Gen. Motors Corp. See Cressend, 2011 WL 

883059, at *2 (citing CenTra, Inc., 538 F.3d at 420). Considering the Plott factors in their entirety, 

the weight favors granting relief under Rule 56(d) for additional discovery. See, e.g., Brooks v. 

Sanofi-Aventis U.S., LLC, No. 2:14-CV-976, 2015 WL 4399617, at *3 (S.D. Ohio July 17, 2015)

(granting Rule 56(d) relief after finding that two of the five Plott factors weighed clearly in favor 

of relief and noting that, on balance, the weight of the factors permitted additional discovery). 

i. Timeliness and Diligence 

The Sixth Circuit has made clear that “[t]he main inquiry in assessing a request under Rule 

56(d) is ‘whether the moving party was diligent in pursuing discovery.’” Bailey v. Sperry Van 

Ness/R.M. Moore, LLC, No. 3:16-CV-128, 2016 WL 4250328, at *1 (E.D. Tenn. Aug. 10, 2016) 
10

(quoting F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 623 (6th Cir. 2014)). Indeed, three of 

the five Plott factors hinge on issues of timeliness and diligence: (1) when the party seeking 

discovery learned of the issue that is the subject of the desired discovery; (2) how long the 

discovery period has lasted; and (3) whether the party seeking discovery was dilatory in its 

discovery efforts. See Plott, 71 F.3d at 1196–97. Notably, Plaintiffs do not dispute the importance 

of timeliness, nor do they argue that Defendant displayed a lack of diligence in its discovery efforts. 

In weighing the Plott timeliness factors as a whole, the Court is particularly mindful of the 

early juncture of these proceedings. Discovery has not yet closed, and in fact, Plaintiffs moved 

for summary judgment approximately two-and-a-half months before the close of discovery. At 

this early juncture, the Court is wary to put the proverbial cart before the horse and rule on

Plaintiffs’ summary judgment motion. Indeed, “[t]he Sixth Circuit has admonished district courts 

that ‘summary judgment should not ordinarily be granted before discovery has been completed.’” 

Dish Network LLC, 2011 WL 13130841, at *4 (quoting Tarleton v. Meharry Med. Coll., 717 F.2d 

1523, 1535 (6th Cir. 1983)). Under these circumstances, the three Plott timeliness factors weigh 

heavily in favor of granting Defendant’s request to pursue discovery before responding to 

Plaintiffs’ summary judgment motion. 

Turning to the first timeliness factor—when Defendant learned of the issue that is the

subject of the desired discovery—the Court finds that this factor weighs strongly in favor of Rule 

56(d) relief. This is not a situation where Defendant knew about the discovery it sought and failed 

to take advantage of discovery. Nor do Plaintiffs make this argument. See, e.g., Miller v. Delaware

Cty. Comm’rs, No. 2:13-CV-501, 2015 WL 2194789, at *3 (S.D. Ohio May 11, 2015) (denying

Rule 56(d) relief in part because plaintiffs knew about the discovery at issue but waited nearly ten 

months to conduct discovery). Here, Defendant timely requested the discovery at issue, but is 
11

dissatisfied with Plaintiffs’ responses. (See generally Docs. 23, 25). Accordingly, the first 

timeliness factor weighs in favor of allowing Defendant to complete discovery. 

As for the second timeliness factor—how long the discovery period has lasted—the Court 

again notes the early stage of these proceedings. Rule 56(d) “recogni[zes] that a party should not 

be forced to respond to a motion for summary judgment without a reasonable opportunity to obtain 

evidence it needs to defeat a motion.” Bailey, 2016 WL 4520328, at *2 (citing McKinley v. City 

of Mansfield, 404 F.3d 418, 443 (6th Cir. 2005)); see also Cressend, 2011 WL 883059 at *2 (“If 

the [party seeking Rule 56(d) relief] has not ‘receive[d] a full opportunity to conduct discovery,’ 

denial of that party’s Rule 56(d) motion and a ruling on a summary judgment motion would likely 

constitute an abuse of discretion.”) (second alteration in original) (quoting Ball, 385 F.3d at 719); 

Siggers v. Campbell, 652 F.3d 681, 697 (6th Cir. 2011) (finding district court abused its discretion 

in denying plaintiff’s motion to delay consideration of summary judgment motions in order to 

obtain more discovery). Notably, Plaintiffs do not argue that Defendant has failed to pursue 

discovery diligently. And, considering the early stage in the proceedings, the Court’s decision to 

allow Defendant the opportunity to pursue discovery before responding to Plaintiff’s summary 

judgment motion will not delay trial or otherwise prejudice Plaintiffs. See, e.g., Williams, 2012 

WL 1228860 at *4 (noting that, because the court continued the trial date, an opportunity for 

additional discovery would not prejudice plaintiff). Thus, considering that discovery has not yet 

closed, the Court finds that the second Plott timeliness factor weighs significantly in favor of 

granting Rule 56(d) relief.

Turning to the final Plott timeliness factor—whether the party seeking discovery was 

dilatory in its discovery efforts—the Court does not have any evidence—nor do Plaintiffs put forth 

any evidence—that Defendant purposefully delayed discovery. This is not, for example, a case in 
12

which there were “ample opportunities for parties to conduct discovery beforehand” or where “the 

need for additional information is attributable to the party’s own lack of diligence during the 

discovery period.” Peltier v. Macomb Cty., Mich., No. 10-CV-10796, 2011 WL 3320743, at *2 

(E.D. Mich. Aug. 2, 2011) (quotations and citations omitted). See, e.g., Siler v. Webber, 443 F. 

App’x 50, 56 (6th Cir. 2011) (holding that plaintiffs were dilatory when they had six months, 

including four separate extensions of time, to prepare their summary judgment response); Tate v. 

Boeing Helicopters, 140 F.3d 654, 661 (6th Cir. 1998) (holding that plaintiffs were dilatory when 

the complaint was filed roughly four and one-half years before the district court issued its order of 

summary judgment). The Court does not find that Defendant filed its Rule 56(d) Motion in bad 

faith or that it somehow delayed discovery. Rather, Defendant timely served its requests for the 

discovery at issue and has timely asserted its dissatisfaction with Plaintiffs’ discovery responses 

and its alleged need for that discovery. Because the Court finds that Defendant was not dilatory 

in its discovery efforts, the final Plott timeliness factor also weighs strongly in favor of Rule 56(d) 

relief. 

ii. Relevance of Requested Discovery

The Court now turns to whether the desired discovery would change the Court’s summary 

judgment ruling and whether the party moving for summary judgment was responsive to discovery 

requests. See Plott, 71 F.3d at 1196–97. First, in assessing whether the requested discovery would 

affect this Court’s ruling, the Court finds that the evidence Defendant seeks “at least . . . ha[s] the 

potential to materially influence the Court’s summary judgment determination.” Ashley Furniture 

Indus. Inc. v. Am. Signature, Inc., No. 2:11-CV-00427, 2011 WL 4383594, at *4 (S.D. Ohio Sept. 

19, 2011). In other words, the requested discovery is not wholly “‘irrelevant to the underlying 

issues to be decided.’” Gonzalez v. Great Am. Ins. Co., No. 3:17-CV-293-TBR, 2018 WL 660639, 
13

at *4 (W.D. Ky. Feb. 1, 2018) (quoting Brown v. Tax Ease Lien Servicing, LLC, No. 3:15-CV208-CRS, 2017 WL 6940734, at *9 (W.D. Ky. May 25, 2017)). 

To be sure, the parties disagree as to the ultimate admissibility of the discovery at issue. 

However, at this juncture, the Court must simply decide whether the evidence “might” influence 

the court’s perception of a genuine factual dispute. Dobbins v. Craycraft, 423 F. App’x 550, 554 

(6th Cir. 2011) (emphasis added) (holding that district court abused its discretion in both denying 

Rule 56(d) relief and granting summary judgment motion). Therefore, even if the Court has not 

established that the discovery would change the ultimate outcome, the Court may still permit 

discovery under Rule 56(d) so that the parties may “develop the relevant facts.” Malibu Boats, 

LLC v. Mastercraft Boat Co., LLC, No. 3:15-CV-276-TAV-HBG, 2016 WL 589691, at *6 (E.D. 

Tenn. Feb. 11, 2016). Said differently, the Court is not required to reach the parties’ arguments 

on the merits at this time. See, e.g., Kras v. Conifer Ins. Co., No. 2:16-CV-224-JD-JEM, 2016 WL 

6893686, at *8 (N.D. Ind. Nov. 23, 2016), reconsideration denied, No. 2:16-CV-224-JD-JEM, 

2017 WL 65311 (N.D. Ind. Jan. 6, 2017) (granting Rule 56(d) relief and allowing additional 

discovery despite the fact that the court had yet to rule on the parties’ interpretation of the contract 

at issue); Cent. Contracting, Inc. v. Kenny Const. Co., No. 11 C 9175, 2012 WL 832842, at *4 

(N.D. Ill. Mar. 12, 2012) (same). See also Graf v. Resilience Capital Partners, LLC, No. 1:12-

CV-2278, 2013 WL 12110251, at *2 (N.D. Ohio Nov. 26, 2013) (refraining from reaching the 

merits until plaintiff had an opportunity to conclude discovery efforts). In sum, this factor tilts 

slightly in Defendant’s favor. 

iii. Plaintiffs’ Responsiveness to Discovery Requests

Because the first four Plott factors weigh, on balance, in favor of granting relief under Rule 

56(d), the Court need not reach the final Plott factor regarding whether Plaintiffs were responsive 
14

to discovery requests. In any event, the Court—based on the parties’ briefing alone—is not in a 

position to determine whether Plaintiffs have or have not been responsive to Defendant’s discovery 

requests. And, for the purposes of resolving Defendant’s Rule 56(d) Motion, the Court is not 

required to resolve whether Defendant is in fact entitled to all the discovery it seeks. See, e.g., 

Ashley Furniture Indus. Inc., 2011 WL 4383594 at *5 (“Recognizing the interests of judicial 

restraint and economy, the Court has purposefully refrained at this time from reaching discovery 

issues beyond its Rule 56(d) determination.”). 

Regarding their specific discovery disputes, the parties are DIRECTED to continue to 

meet and confer. The Court notes, however, that ERISA establishes a procedure to “streamline[] 

the process for collecting delinquent contributions to ERISA plans from employers by limiting 

‘unrelated’ and ‘extraneous’ defenses.” Orrand v. Scassa Asphalt Inc., 794 F.3d 556, 562 (6th 

Cir. 2015) (quoting Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 88 (1982)). Indeed, “Congress 

adopted § 515 [of ERISA] because ‘simple collection actions brought by plan trustees ha[d] been 

converted into lengthy, costly and complex litigation concerning claims and defenses unrelated to 

the employer’s promise and the plans’ entitlement to the contributions, and steps [were required] 

to simplify delinquency collection.’” Id. (alterations in original) (quoting Kaiser Steel Corp., 455 

U.S. at 87). Therefore, while the Court finds that Defendant has met its burden under Rule 56(d), 

the Court equally notes that it will follow Sixth Circuit law in this ERISA case. See Lipker v. AK 

Steel Corp., 698 F.3d 923, 928 (6th Cir. 2012) (“When interpreting ERISA plan provisions, general 

principles of contract law apply”); Wilson v. Bridge Overlay Sys., 129 F. Supp. 3d 560, 575 (S.D. 

Ohio 2015) (citations omitted) (“The Sixth Circuit has consistently stated that extrinsic evidence 

should only be admitted after a provision has been found to be ambiguous.”).
15

IV. CONCLUSION 

For the above reasons, Defendant’s Motion for Leave to Amend (Doc. 14) is GRANTED. 

Further, Defendant’s Rule 56(d) Motion (Doc. 23) is GRANTED in part to the extent that 

discovery is appropriate before resolving Plaintiffs’ pending summary judgment motion. As 

noted, however, the Court is not defining the parameters of permissible discovery at this time. 

Instead, the parties are DIRECTED to work together to resolve discovery disputes informally 

before seeking judicial intervention. If unable to resolve their discovery disputes by October 16, 

2018, the parties shall file a joint status report regarding the specific disputes.

Given this procedural posture, the discovery deadline in this matter is EXTENDED from 

October 12, 2018 to November 9, 2018. The Court intends to extend other deadlines in this case 

as well, and, to that end, the parties are DIRECTED to submit a proposed case schedule by 

October 16, 2018. 

IT IS SO ORDERED.

Date: October 2, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE