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Ecoquij-Tzep v. Le Arlington, Inc

United States District Court, N.D. Texas, Dallas Division

January 23, 2018

PASCUAL ECOQUIJ-TZEP, and all others similarly situated under 29 USC 216b, Plaintiff,
v.
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

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         Defendants 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 “MSJ”).

         Plaintiff 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.

         Defendants filed a response in opposition, see Dkt. No. 143, and Ecoquij-Tzep filed a reply, see Dkt. No. 145.

         For the 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. No. 138].

         Background

         Ecoquij-Tzep 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”).

         As 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.

         According 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.

         Ecoquij-Tzep 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.

         As 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).

         Ecoquij-Tzep 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).

         As “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 “fishing expedition.”

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.

         Legal Standards

         Federal 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. 1990).

         “[T]o 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 marks omitted)).

         In 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).

         Rule 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 Fed.R.Civ.P. 56(f)).

         But a 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 ...


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