United States District Court, N.D. Texas, Dallas Division
PASCUAL ECOQUIJ-TZEP, and all others similarly situated under 29 USC 216b, Plaintiff,
LE ARLINGTON, INC. d/b/a MW HAWAIIAN GRILL also d/b/a MW'S HAWAIIAN GRILL also d/b/a LITTLE TOKYO and f/k/a SHUN FAR EL PASO INC., GRAND FAST FOOD INC d/b/a FAMOUS CAJUN GRILL and also d/b/a FAMOUS WOK, SHIZHONG ZHANG, YING HUI WANG, and KONG SHEN WANG, Defendants.
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE.
Le Arlington, Inc. d/b/a/ MW Hawaiian Grill also d/b/a
MW's Hawaiian Grill also d/b/a Little Tokyo and f/k/a
Shun Far El Paso, Inc. (“Le Arlington”), Grand
Fast Food, Inc. d/b/a Famous Cajun Grill and also d/b/a
Famous Wok (“Grand Fast Food”), Shizhong Zhang,
Ying Hui Wang, and Kong Shen Wang (collectively,
“Defendants”) have filed a Rule 56 Motion for
Summary Judgment. See Dkt. No. 117 (the
Pascual Ecoquij-Tzep has filed a First Motion for Extension
of Time to Respond to Defendants' Motion for Summary
Judgment, see Dkt. No. 138 (the “56(d)
Motion”), “ask[ing] the Court to continue the
submission of Defendants' Rule 56 Motion for Summary
Judgment (DE 117), and to allow [Ecoquij-Tzep] additional
time to obtain evidence and conduct discovery, as authorized
by Federal Rule of Civil Procedure 56(d)(2), ”
id. at 1.
filed a response in opposition, see Dkt. No. 143,
and Ecoquij-Tzep filed a reply, see Dkt. No. 145.
following reasons, the Court GRANTS Plaintiff Pascual
Ecoquij-Tzep's First Motion for Extension of Time to
Respond to Defendants' Motion for Summary Judgment [Dkt.
sued Hawaiian Grill, his former employer, alleging that it
failed to pay him the minimum wage or overtime, in violation
of the Fair Labor Standards Act, 28 U.S.C. § 206, et
seq. (the “FLSA”).
Ecoquij-Tzep notes, “[d]iscovery in this case was
conducted in phases at the request of Defendant Le Arlington,
Inc., with Phase 1 discovery limited to issues relating to
certification and to identifying related corporate entities
and potential individual and corporate defendants, ”
and “[g]eneral Phase 2 discovery did not open until
August 9, 2017 and was interrupted shortly thereafter by
Defendants changing counsel.” Dkt. No. 138 at 2.
to Ecoquij-Tzep, his “counsel has been engaged in
ongoing discussions with Defendants' counsel in an
attempt to resolve a number of discovery disputes involving
both written discovery requests and conducting depositions
without requiring further intervention by the Court, ”
and “[t]hese discussions are ongoing and involve, among
other things, Defendants raising the same type of objections
to [Ecoquij-Tzep's] Phase 2 written discovery that the
Court previously found to be improper during Phase 1
discovery in this very case and scheduling the Phase 2
depositions of the Defendants.” Id.
explains that, “[a]s it pertains to the [56(d) Motion],
the discovery [Ecoquij-Tzep] is seeking is related to: 1)
identifying which goods or materials regularly used and/or
handled by Defendants' employees moved through interstate
commerce prior to their use by the same; 2) identifying and
locating evidence of and witnesses with knowledge of
[Ecoquij-Tzep's] hours worked and Defendants timekeeping
and payment practices; and, 3) identifying evidence of and
witnesses with knowledge of Defendants' business
structure and the relationship between the Defendants.”
Id. at 2-3.
Ecoquij-Tzep notes, “[t]he current discovery period
does not end until July 10, 2018”; “[t]he
deadline for filing dispositive motions is July 10,
2018”; and “[a] class was conditionally certified
in this case on June 21, 2017 and the class notice period
does not end until February 27, 2018.” Id. at
3 (citations omitted).
explains that “Defendants filed their Rule 56 Motion
for Summary Judgment with supporting brief and evidence  on
December 1, 2017, more than seven months before the end of
the current discovery period”; that
“Defendants' MSJ raises three issues: 1) whether
[Ecoquij-Tzep] can establish minimum wage or overtime
violations by the Defendants; 2) whether [Ecoquij-Tzep] can
establish enterprise coverage under the FLSA; and, 3) whether
[Ecoquij-Tzep] can establish that Defendants comprise a joint
enterprise as defined by the FLSA”; and that,
“[t]hough listed as a fourth issue, Defendants'
‘Bad Faith' argument simply reiterates their
position that [Ecoquij-Tzep] cannot present sufficient
evidence to prevail.” Id. (citations omitted).
“supported by the Affidavit of Joshua A. Petersen,
included in the Appendix and incorporated herein by
reference” - which states that “I have reviewed
the file materials and personally drafted Plaintiff's
First Motion for Extension of Time to Respond to
Defendants' Motion for Summary Judgment” and
“[t]he facts set out in paragraphs 1 through 14 of that
Motion are true and correct, ” Dkt. No. 139 at App. 003
- Ecoquij-Tzep's 56(d) Motion “asks the Court to
extend the time for [Ecoquij-Tzep] to respond to
Defendants' MSJ until twenty-one days after the
expiration of the current discovery period to enable
[Ecoquij-Tzep] to conduct discovery and obtain the testimony
and other evidence necessary to fully respond to
Defendants' MSJ.” Id. More specifically,
he “asks the Court to continue the deadline for
[Ecoquij-Tzep] to respond to Defendants' MSJ until July
31, 2018, which is twenty-one days after the current deadline
to file dispositive motions (DE 114 at p. 7), so that
[Ecoquij-Tzep] may take the depositions and conduct other
discovery necessary to respond to and provide the evidence
required for the Court to decide Defendants' MSJ pursuant
to the applicable law and a complete factual record.”
Dkt. No. 138 at 10.
Defendants respond that,
[a]s required by Rule 56(d), the Plaintiff's affidavit in
support [Ecoquij-Tzep's 56(d) Motion] has to set forth
with “some precision” the plausible basis
[Ecoquij-Tzep] believes additional time is required to obtain
evidence and facts in opposition to the Defendants'
summary judgment motion on the minimum wage and overtime
issue. Additionally, the Plaintiff's affidavit must state
how further discovery will assist him in opposing the summary
judgment. The affidavit is procedurally defective by merely
states that the allegations in his motion are “true and
correct”. As such, [Ecoquij-Tzep's 56(d) Motion]
itself does not address the requirements to prevail under
Rule 56(d) as stated by the 5th circuit in both
Raby and Whitener.
Neither the Affidavit nor [Ecoquij's 56(d) Motion]
adequately address the need for additional information with
regards to hours worked, minimum wage or overtime and joint
enterprise challenges in the Defendants' [MSJ]. The
pending oral deposition of the defendant individuals will not
and cannot change or alter any of the facts and evidence
provided already to [Ecoquij-Tzep] in discovery.
[Ecoquij-Tzep] has not shown that further discovery will
provide evidence creating a genuine issue of material fact as
given in the Defendants' [MSJ]. Therefore, [Ecoquij's
56(d) Motion] should be denied.
Dkt. No. 143 at 5-6 (citations and emphasis omitted).
In reply, Ecoquij-Tzep notes that,
[i]n their Response, Defendants raise three primary arguments
as to why Plaintiffs' Motion should be denied. First,
Defendants argue that the affidavit in support of
Plaintiff's Motion to Extend Time is insufficient.
Second, Defendants contend that Plaintiff has not shown with
sufficient precision and specificity what additional
discovery he seeks in relation to Defendants' MSJ.
Finally, Defendants argue that Plaintiff has “completed
substantial written and oral discovery” and that any
further discovery sought by Plaintiff is merely a
Dkt. No. 145 at 3 (citing Dkt. No. 143). Ecoquij-Tzep replies
that (1) the affidavit in support of his 56(d) Motion is
sufficient; (2) he “has identified what additional
discovery he is seeking related to Defendants'
MSJ”; and (3) “Defendants' representations
regarding what discovery [Ecoquij-Tzep] has been able to
complete are inaccurate.” Id. at 3-7.
Rule of Civil Procedure 56(d) provides that the Court may
defer a motion for summary judgment or allow time for a
nonmovant to obtain affidavits or declarations or to take
discovery if the nonmovant “shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition.”
Fed.R.Civ.P. 56(d) (“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.”). This rule is
“designed to safeguard against a premature or
improvident grant of summary judgment.” Washington
v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir.
justify a continuance, the Rule [56(d)] motion must
demonstrate 1) why the movant needs additional discovery and
2) how the additional discovery will likely create a genuine
issue of material fact.” Stearns Airport Equip. Co.
v. FMC Corp., 170 F.3d 518, 534-35 (5th Cir. 1999)
(construing former Fed.R.Civ.P. 56(f)); accord Access
Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 720
(5th Cir. 1999) (“To obtain a continuance of a motion
for summary judgment, a party must specifically explain both
why it is currently unable to present evidence creating a
genuine issue of fact and how a continuance would enable the
party to present such evidence.” (internal quotation
response to a proper motion for a continuance to obtain
further discovery, the Court may “(1) defer considering
the [summary judgment] 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) “discovery motions are broadly favored and should
be liberally granted.” Raby v. Livingston, 600
F.3d 552, 561 (5th Cir. 2010) (internal quotation marks
omitted). The Court generally should grant “a
continuance for additional discovery if [the nonmovant]: (i)
requested extended discovery prior to [the Court's]
ruling on summary judgment; (ii) placed [the Court] on notice
that further discovery pertaining to the summary judgment
motion was being sought; and (iii) demonstrated to [the
Court] with reasonable specificity how the requested
discovery pertained to the pending motion.”
Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1291 (5th
Cir. 1994) (citations omitted) (construing former
Rule 56(d) “motion to re-open discovery [is]
procedurally defective” - and therefore must be denied
- if “a party requesting additional discovery as to
facts essential to its opposition of a motion for summary
judgment [fails] to present an affidavit or
declaration.” Leza v. City of Laredo, 496
Fed.Appx. 375, 377-78 (5th Cir. 2012) (per curiam). “To
succeed on a Rule 56(d) motion, ... the party requesting
discovery must provide an affidavit or declaration in support
of the request that ‘state[s] with some precision the
materials he hope[s] to obtain with further discovery, and
exactly how he expect[s] those materials w[ill] assist him in