United States District Court, W.D. Texas, San Antonio Division
DEXTER SISTRUNK, individually and on behalf of a class of similarly situated individuals, Plaintiff,
TITLEMAX, INC., et al., Defendants.
PITMAN UNITED STATES DISTRICT JUDGE.
the Court in the above-styled cause are Defendants'
Motion to Stay Consideration of Objections and Objections to
Order Denying Rule 56(d) Motion. (Dkt. 278). Having reviewed
the parties' filings and the extensive record, the Court
finds that the objections should be overruled.
case is a class action concerning Defendants' alleged
violations of the Driver's Privacy Protection Act
(“DPPA”), 18 U.S.C. §§ 2721, et
seq. Though initially filed in July 2014, a class was
only certified in this matter on November 21, 2016.
(See Order Adopting R. & R., Dkt. 243). Days
later, on November 30, 2016, the parties filed a joint notice
informing the Court that Plaintiff intended to file a motion
for summary judgment and that Defendants would oppose the
motion as premature pursuant to Rule 56(d), complaining that
no discovery had taken place on the merits.
filed his motion for summary judgment a month later, on
December 28, 2016. Two weeks later-on the last day to respond
to Plaintiff's motion-Defendants filed an unopposed
motion for an extension of time to respond. The reason for
seeking the extension was not to conduct additional discovery
pursuant to Rule 56(d), but rather to engage in a second
mediation after a first attempt failed. (See Mot.
Cancel Mediation, Dkt. 258, at 1). United States Magistrate
Judge Henry Bemporad granted Defendants' request to
extend the deadline to fourteen days after the mediation.
(See Order, Dkt. 258). Plaintiff informed the
Magistrate Court that the second mediation failed on February
22, 2017, making the deadline for Defendants to respond to
Plaintiff's summary judgment motion March 8, 2017.
filed their response to Plaintiff's motion on March, 8,
2017, and also filed a motion to continue consideration of
the summary judgment motion for an unspecified period of time
so that Defendants could conduct discovery on several topics.
(See Response, Dkt. 272; Rule 56(d) Mot., Dkt. 271).
These topics included: (1) whether the employees identified
in Plaintiff's summary judgment motion acted within the
scope of their employment; (2) whether the employees misused
access to driver records or acted willfully; (3) whether the
employees engaged in criminal conduct; (4) the identity of
the individuals who created a list of vehicle owners; and (5)
the extent of any class member's actual damages. (Rule
56(d) Mot., Dkt. 271, at 2-4).
Magistrate Judge denied Defendants' Rule 56(d) motion on
March 10, 2017. (Order Denying Mot., Dkt. 275). He found as
to the first four topics that Defendants had not diligently
sought discovery despite knowing of the relevant evidence for
more than a year. (Id. at 2-3). He also pointed out
that Defendants had not explained why they had sought a
continuance after previously seeking an extension of time to
respond. Additionally, the Magistrate Judge found discovery
into the issue of actual damages to be futile as the class
was not seeking actual damages.
thereafter filed a motion to reconsider the denial before the
Magistrate Judge and simultaneously filed objections to the
Magistrate Judge's order before this Court along with a
request to stay consideration of those objections until the
Magistrate Judge ruled on their motion for reconsideration.
The Magistrate Judge issued an order denying Defendants'
motion for reconsideration as moot following his issuance of
a Report and Recommendation on Plaintiff's motion for
summary judgment. This Court therefore finds it appropriate
to consider Defendants' objections at this time.
are authorized under Rule 56(d) to defer ruling on a summary
judgment motion and allow discovery, but ‘Rule 56 does
not require that any discovery take place before
summary judgment can be granted.'” Mendez v.
Poitevent, 823 F.3d 326, 336 (5th Cir. 2016) (quoting
Baker v. Am. Airlines, Inc., 430 F.3d 750, 756 (5th
Cir. 2005)). “[D]eferring summary judgment and ordering
discovery is appropriate only if the ‘nonmovant shows
by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its
opposition.'” Id. (quoting Fed.R.Civ.P.
56(d)). “A party ‘may not simply rely on vague
assertions that additional discovery will produce needed, but
unspecified, facts.'” Id. (quoting Am.
Family Life Assurance Co. of Columbus v. Biles, 714 F.3d
887, 894 (5th Cir. 2013)). Rather, the party must “set
forth a plausible basis for believing that specified facts,
susceptible of collection within a reasonable time frame,
probably exist and indicate how the emergent facts, if
adduced, will influence the outcome of the pending summary
judgment motion.” Biles, 714 F.3d at 894
(quoting Raby v. Livingston, 600 F.3d 552, 561 (5th
Cir. 2010)). “If the requesting party ‘has not
diligently pursued discovery, however, [it] is not entitled
to relief' under Rule 56(d).” McKay v. Novartis
Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014). The
court's disposition of a Rule 56(d) motion is reviewed
for abuse of discretion. Raby, 600 F.3d at 561.
assert three primary arguments in their objections to the
Magistrate Court's order. First, they insist that the
Magistrate Court had bifurcated discovery and that Defendants
therefore had no opportunity to conduct merits-based
discovery. Second, Defendants reiterate the need for
discovery as to the five topics mentioned above. Finally,
Defendants argue that their actions in asking for additional
time to respond only to file a rule 56(d) motion were not
inconsistent with their purported need for discovery. The
Court first addresses the applicable standard of review
before turning to Defendants' arguments.
Applicable Standard of Review
Rule of Civil Procedure 72 provides that a district court
reviews objections to a magistrate judge's order under a
“clearly erroneous or contrary to law” standard
if the matter is non-dispositive, and under a de
novo standard if a party objects to a magistrate
judge's report and recommendation on a dispositive
matter. Fed.R.Civ.P. 72. Defendant suggests that this Court
should review de novo the Magistrate Court's
order denying Defendants' Rule 56(d) motion-which is
non-dispositive-on the ground that it is related ...