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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

David Steele Douglass,

Plaintiff,

v. 

City of Mesa, et al.,

Defendants.

No. CV-17-04686-PHX-SMB

ORDER 

Pending before the Court is Plaintiff David Steele Douglass’ Declaration Regarding 

Deferment of Consideration of Defendants’ Motion for Summary Judgment and Allowing 

Time to Obtain Affidavits or Declarations or to Take Discovery. (Doc. 36, “Req.”) 

Defendants1 oppose the request, (Doc. 39, “Opp.”), and Plaintiff replied, (Doc. 41, 

“Repl.”). Plaintiff requests oral argument, but the Court elects to resolve the request 

without it. LRCiv 7.2(f). Plaintiff appears to request the Court defer considering 

Defendants’ summary judgment motion under Rule 56(d)(2).2 Having considered the 

pleadings and relevant law, the Court denies Plaintiff’s request as explained below.

I. LEGAL STANDARD

Federal Rule of Civil Procedure 56(d) provides that “[i]f 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 

1 Defendants include the City of Mesa, Clyde Spillers, Steven Hether, Jose Rodriguez, 

Brett Metcalf, and Thomas McKnight.

2 Plaintiff moves under Rule 56(d), but identifies no specific subsection.
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obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate 

order.” Fed. R. Civ. P. 56(d).3 Rule 56(d) creates “a device for litigants to avoid summary 

judgment when they have not had sufficient time to develop affirmative evidence.” United 

States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). “The burden is on 

the party seeking additional discovery to proffer sufficient facts to show that the evidence 

sought exists and that it would prevent summary judgment.” Okabayashi v. Travelers 

Home & Marine Ins. Co., No. CV-17-03612-PHX-DJH, 2019 WL 1059982, at *3 (D. Ariz. 

Mar. 6, 2019) (citing Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 

2001)).

To prevail under Rule 56(d), the moving party 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.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. 

Corp., 525 F.3d 822, 827 (9th Cir. 2008); see California v. Campbell, 138 F.3d 772, 779 

(9th Cir. 1998) (noting same three elements). Thus, a party requesting relief under Rule 

56(d) must “make clear what information is sought and how it would preclude summary 

judgment.” Nicholas v. Wallenstein, 266 F.3d 1083, 1088-89 (9th Cir. 2001). “Failure to 

comply with these requirements ‘is a proper ground for denying discovery and proceeding 

to summary judgment.’” Family Home & Fin. Ctr., 525 F.3d at 827 (quoting Campbell, 

138 F.3d at 779). 

II. DISCUSSION

Plaintiff requests the Court defer considering Defendants’ summary judgment 

motion so that he may “obtain affidavits or declarations or take discovery.” (Req. at 1.) In 

support, Plaintiff declares he cannot oppose Defendants’ summary judgment motion 

exhibits because they “set[] forth facts that are not fully disclosed in the police reports or 

other papers that [they] provided in discovery.” (Id.) More specifically, Plaintiff claims 

3 According to the Ninth Circuit in Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 n. 8 (9th 

Cir. 2011), cases interpreting Rule 56(f) apply to Rule 56(d). See Slama v. City of Madera, 

No. 1:08-cv-810 AWI GSA, 2012 WL 1067198, at *2 n.4 (E.D. Cal. Mar. 28, 2012) 

(acknowledging Rule 56(f)’s “relocation” to Rule 56(d)).
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“[t]he allegations in the [summary judgment exhibit] affidavits . . . will need to be 

investigated through depositions or other discovery to respond adequately to the motion 

for summary judgment.” (Id. at 2.) Plaintiff further claims he “[o]nly recently . . . had the 

opportunity to complete review of these disclosures.” (Id. at 3.) He also claims his witness, 

Lance White, “has become an uncooperative witness.” (Id. at 4.) For these main reasons, 

Plaintiff requests the Court defer consideration on the summary judgment motion.

In response, Defendants argue Plaintiff’s request should be denied because he does 

not satisfy Rule 56(d)’s substantive or procedural requirements. (Opp. at 2.) They argue 

the substantive requirements are unsatisfied because Plaintiff fails to “identify any facts 

that he expects to obtain with additional discovery, and that, even if obtained, would 

preclude summary judgment.” (Id.) Defendants further argue the procedural requirements 

are not satisfied because “[d]iscovery has closed, Plaintiff had adequate time to conduct 

discovery, Plaintiff failed to take any depositions or to obtain any affidavits, and Plaintiff 

provides no basis for modifying the existing Scheduling Order.” (Id.) The Court finds

Defendants’ arguments persuasive.

Plaintiff’s request falls short of meeting Rule 56(d)’s threshold requirements. See 

Family Home & Fin. Ctr., 525 F.3d at 827. Plaintiff identifies no specific facts that he 

hopes to obtain through additional discovery, let alone how such facts would be essential 

to oppose Defendants’ summary judgment motion. Id. Rather, he appears to simply be 

requesting more time to investigate discovery already provided to him. (See Req. at 2 (“The 

allegations . . . will need to be investigated.”)). This is inadequate for Rule 56(d) relief. See 

Mackey v. Pioneer Nat’l Bank, 867 F.2d 520, 524 (9th Cir. 1989) (“A movant cannot 

complain if [he] fails diligently to pursue discovery before summary judgment.”). Granting

Rule 56 relief under these circumstances, where Plaintiff identifies no specific information

that would be obtained or how such information could be used to oppose summary 

judgment would cause unnecessary delay for both parties. See Nicholas, 266 F.3d at 1088-

89. In other words, and contrary to Rule 56(d)’s requirements, Plaintiff does not “make 

clear what information is sought and how it would preclude summary judgment.” Cf. id.
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(quoting Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998)). As a consequence, the Court 

finds Plaintiff’s requested relief unwarranted. Family Home & Fin. Ctr., 525 F.3d at 827.

Accordingly,

IT IS ORDERED DENYING Plaintiff’s Request, (Doc. 36).

Dated this 28th day of January, 2020.