1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

Leslie A. Merritt, Jr., 

Plaintiff, 

v. 

State of Arizona; Maricopa County; Bill 

Montgomery, Maricopa County Attorney; 

Heston Silbert; Christopher Kalkowski; 

Frank Milstead; Ken Hunter; Kelley Heape; 

Jennifer Pinnow; and Anthony Falcone, 

Defendants. 

No. CV-17-04540-PHX-DGC 

ORDER 

 

 This action arises out of Plaintiff’s arrest, incarceration, and attempted prosecution 

for the much-publicized I-10 freeway shootings. Plaintiff asserts multiple claims for 

relief, including false arrest, false imprisonment, malicious prosecution, negligence, 

intentional infliction of emotional distress, and aiding and abetting. Doc. 8. Defendants 

have filed motions for summary judgment. Docs. 63, 65. Plaintiff has filed motions for 

additional time to conduct discovery pursuant to Federal Rule of Civil Procedure 56(d). 

Docs. 82, 83. The Court will grant Plaintiff’s motions.1

 

1

 Plaintiff failed to comply with the requirement set forth in the Case Management Order that he place a joint conference call to the Court to discuss whether additional 

discovery is warranted. Doc. 45 ¶ 12. Because Plaintiff addressed the relevant issues in 

his written motions, however, the Court finds a conference call unnecessary. In the future, counsel should follow the Court’s orders more carefully. 

Case 2:17-cv-04540-DGC Document 98 Filed 05/17/18 Page 1 of 6
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 Rule 56(d) grants the Court discretion to deny a motion for summary judgment in 

order to allow more time for discovery where the opposing party “shows by affidavit or 

declaration that, for specified reasons, it cannot present facts essential to justify its 

opposition[.]” When making a Rule 56(d) determination, the Court should consider 

“whether the parties have diligently conducted discovery prior to the Rule 56(d) motion, 

whether they complied with the procedural requirements of the Rule, and whether 

further discovery would aid the party opposing summary judgment or merely delay the 

proceedings.” Roosevelt Irrigation Dist. v. Salt River Project, No. 2:10-CV-290-DAE 

(BGM), 2016 WL 3613278, at *2 (D. Ariz. Feb. 2, 2016). 

 In this case, there is no dispute that Plaintiff has diligently conducted discovery 

prior to filing the Rule 56(d) motion. See Doc. 88 at 3. Plaintiff has obtained nearly 

500,000 pages of discovery from Defendants and has taken more than a dozen 

depositions. 

 Plaintiff also has complied with the procedural requirements of Rule 56(d) by 

submitting declarations of counsel specifically stating the need for further fact discovery 

to adequately respond to the summary judgment motions. Docs. 82-1, 83-1. With 

respect to the State Defendants’ motion, Plaintiff seeks to conduct discovery regarding 

the DPS crime lab, DPS law enforcement personnel, and the Maricopa County Attorney’s 

Office personnel. Doc. 82-1 ¶ 3. For the motion filed by the County Defendants, 

Plaintiff intends to depose Mr. Montgomery, Deputy County Attorneys, and other County 

employees with relevant knowledge. Doc. 83-1 ¶ 3. The depositions of former 

defendants Edward Leiter and Vanessa Lossico are noticed for June 26, 2018, and the 

deposition of County Attorney Keith Manning is noticed for the following day. Doc. 94 

at 4. Counsel describes with sufficient particularity the facts he expects to learn from the 

anticipated discovery, and avows that those facts are essential to oppose summary 

judgment. Docs. 82-1 ¶¶ 4-12, 83-1 ¶¶ 4-8. Counsel further states that additional time is 

needed to prepare declarations from expert witnesses regarding firearms examinations, 

crime lab operations, and prosecutorial and police procedures. Id. ¶¶ 13, 9. 

Case 2:17-cv-04540-DGC Document 98 Filed 05/17/18 Page 2 of 6
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 The State Defendants’ motion seeks summary judgment for seven individuals on 

all ten claims asserted in the complaint. Doc. 63. The statement of facts includes more 

than 60 separate paragraphs and exhibits spanning some 700-plus pages. Doc. 64. The 

County Defendants have joined the State Defendants’ motion, and separately seek 

summary judgment on similar grounds. Docs. 65, 71. The parties disagree on the scope 

of facts required to address the probable cause and immunity inquiries. 

 The Court cannot conclude that the additional discovery sought by Plaintiff will 

shed no light on those issues or other issues raised by the summary judgment motions. 

See Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (noting that “summary judgment 

in the face of requests for additional discovery is appropriate only where such discovery 

would be ‘fruitless’ with respect to the proof of a viable claim”); Nyland v. Rooke, LLC, 

No. 2:15-cv-01670 JWS, 2016 WL 649072, at *2 (D. Ariz. Feb. 18, 2016) (“While it is 

proper for a court to deny a Rule 56(d) application ‘where it is clear that the evidence 

sought is almost certainly nonexistent or is the object of pure speculation,’ here the court 

cannot conclude that such facts are clearly nonexistent[.]” (quoting Terrell v. Brewer, 935 

F.2d 1015, 1018 (9th Cir. 1991)). The Court will grant Plaintiff’s Rule 56(d) motions 

and deny the summary judgment motions without prejudice to their refiling 

after discovery has been completed. 

 Defendants’ various arguments do not require a different result. The County 

Defendants ask the Court to construe Plaintiff’s Rule 56(d) motion as a response to 

Defendants’ summary judgment motion because it includes arguments as to why 

summary judgment should be denied. Doc. 88 at 1-2. Defendants cite no legal authority 

in support of this request. The mere fact that Plaintiff addressed certain summary 

judgment issues in his motion is no basis for converting it into a response brief. 

 Defendants contend that the Rule 56(d) motion should be denied because Plaintiff 

lacks the evidence necessary to preclude summary judgment. Id. at 3. They assert that 

“Rule 56 requires what Plaintiff cannot show – genuine issues of material fact,” and yet 

in the same breath assert that “Plaintiff does not need more time so that he can ‘present 

Case 2:17-cv-04540-DGC Document 98 Filed 05/17/18 Page 3 of 6
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

all the facts essential to justify his opposition.’” Id. The very purpose of Rule 56(d) is to 

allow a party sufficient time to take discovery so that he may present facts essential to his 

opposition. Fed. R. Civ. P. 56(d)(2); see Choquette v. Warner, No. 3:15-CV-05838-

BHS-JRC, 2017 WL 773670, at *3 (W.D. Wash. Feb. 27, 2017) (granting Rule 56(d) 

request without limiting the scope of discovery to ensure that the court was “provided 

with a complete and accurate record prior to ruling on a motion for summary judgment”).

 Defendants further contend that Plaintiff has had ample time to conduct discovery 

and did not object to the filing of an early summary judgment motion at the case 

management conference. Docs. 88 at 7-8, 90 at 8-9. But Defendants cite no authority 

suggesting that the lack of an objection constitutes a waiver of the right to seek 

Rule 56(d) relief once a summary judgment motion is filed. Moreover, the Case 

Management Order sets a September 7, 2018 discovery deadline, a date proposed by 

Defendants. Docs. 32 at 16, 45 at 2. The filing of an early summary judgment motion 

did not change this deadline or require Plaintiff to complete discovery in time to file a 

response. 

 Defendants claim that their right to immunity will be compromised if Plaintiff is 

permitted to conduct further discovery. Doc. 88 at 2-3. But the purpose of the immunity 

doctrine is to ensure that “‘insubstantial claims’ against government officials be resolved 

prior to discovery and on summary judgment if possible.” Anderson v. Creighton, 483 

U.S. 635, 640 n. 2 (1987); see Pearson v. Callahan, 555 U.S. 223, 232 (2009) (same). 

Where, as in this case, “there is a dispute as to both the reasonableness of the official’s 

actions and the factual characterization of those actions, discovery as to the issue of 

qualified immunity [is] necessary.” Choquette, 2017 WL 773670, at *2 (citing Anderson, 

483 U.S. at 646 n.6); see Ngerntongdee v. Vaughn, No. C08-1070RSM, 2008 WL 

5000244, at *3 (W.D. Wash. Nov. 21, 2008) (noting that qualified immunity principles 

“do not suggest that courts should make hasty determinations based on an incomplete 

record”); Hart v. Gaione, No. CV-02-013311-RMT-MANX, 2003 WL 22846344, at *1 

(C.D. Cal. Nov. 17, 2003) (noting that the qualified immunity defense must be balanced 

Case 2:17-cv-04540-DGC Document 98 Filed 05/17/18 Page 4 of 6
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

against a plaintiff’s right to discovery). 

 The State Defendants assert that the Rule 56(d) request is merely an attempt to 

postpone a ruling on their “straightforward” summary judgment motion. Doc. 90 at 2. 

As noted above, however, Defendants seek summary judgment on all ten claims, for a 

host of different reasons. Doc. 63 at 2-4. The motion is not limited solely to the issue of 

probable cause. See id. Moreover, the probable cause inquiry involves a consideration of 

the totality of the circumstances and “necessarily turns upon the particular facts of the 

individual case.” Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009). 

Plaintiff should be permitted to conduct further discovery into the investigation and facts 

known to Defendants before his arrest. See Spencer v. Peters, No. C11-5424 BHS, 2012 

WL 4514417, at *16-19 (W.D. Wash. Oct. 2, 2012) (granting Rule 56(d) request on the 

issue of probable cause where the plaintiff challenged the facts known to officials at the 

time of his arrest). 

 Plaintiff requests an additional six months to conduct the discovery he needs to 

respond to the summary judgment motions. Docs. 82 at 2, 83 at 2. As noted above, the 

Case Management Order set a September 7, 2018 deadline for the completion of fact 

discovery. Doc. 45 ¶ 4. The order made clear that the Court intends to enforce the 

deadlines and the parties should plan their litigation activities accordingly. Id. ¶ 9. The 

Court will not extend the fact discovery period beyond the September 7 deadline. The 

remaining four months provides ample time for Plaintiff to conduct the discovery needed 

to oppose summary judgment. 

IT IS ORDERED:

 1. Plaintiff’s motions for additional time pursuant to Rule 56(d) (Docs. 82, 83) 

are granted. 

 2. Defendants’ motions for summary judgment (Docs. 63, 65) are denied 

without prejudice to their refiling after the close of discovery. 

Case 2:17-cv-04540-DGC Document 98 Filed 05/17/18 Page 5 of 6
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 3. The schedule set forth in the Case Management Order (Doc. 45) is 

affirmed. 

 Dated this 17th day of May, 2018. 

Case 2:17-cv-04540-DGC Document 98 Filed 05/17/18 Page 6 of 6