United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
TIMOTHY S. HILLMAN, District Judge.
Elizabeth Annobil ("Annobil" or Plaintiff") has filed an Amended Complaint asserting claims against Worcester Skilled Care Center, Inc. ("WSCC"), Patricia Kennedy ("Kennedy"), Susan M. Casey ("Casey"), Denise Zuffante ("Zuffante"), Joel Stevens ("Stevens"), Wingate Healthcare, Inc. ("Wingate"), Senior Residential Care/Worcester, Inc. d/b/a Nuerorehabilitation Center at Worcester ("Senior Care") and Continental Asset Management, Inc. ("Continental"), alleging claims for: violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), and the Pregnancy Discrimination Act of 1978, 42 U.S.C. §2000e(k) ("PDA")(Count I), violation of the Massachusetts Maternity Leave Act, Mass.Gen.L. ch. 149, §105D ("MMLA") (Count II), violation of the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA") (Count III), violation of 42 U.S.C. §2000e-2(a)(1)(disparate treatment/disparate impact)(Count IV), violation of Mass.Gen. L. ch. 151B, §4 ("Chapter 151B")(Count V), violation of Mass.Gen.L. ch. 93, § 102(a)(Count VI), violation of Mass.Gen.L. ch. 12, §11I and 11H ("MCRA")(Count VII), violation of Mass.Gen.L. ch. 151B and the Americans with Disabilities Act, 42 U.S.C. §10211 ("ADA") (Count VIII), Defamation (Count IX), Wrongful Termination (Count X), violation of 29 U.S.C. §1161(a)("COBRA")(Count XI), and Intentional and Negligent Infliction of Emotional Distress (Count XII).
This Memorandum of Decision and Order addresses the following motions:
1. Defendants' Patricia Kennedy's and Denise Zuffantes's Motion for Summary Judgment (Docket No. 68); and
2. Defendants' Worcester Skilled Care Center, Inc.'s, Wingate Healthcare Inc's and Senior Residential Care/Worcester, Inc's Motion For Summary Judgment (Docket No. 69).
For the reasons set forth below, these motions are granted. In her oppositions, Plaintiff seeks additional discovery pursuant to Fed.R.Civ.P. 56(d); that request is denied.
Standard of Review
Summary Judgment is appropriate where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed.R.Civ.P. 56(c)). "A genuine' issue is one that could be resolved in favor of either party, and a material fact' is one that has the potential of affecting the outcome of the case." Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 153 (1st Cir. 2009). The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id., at 152. "Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.'" Id. (citation to quoted case omitted). "[T]he nonmoving party "may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial."'" Id. (citation to quoted case omitted). The nonmoving party cannot rely on "conclusory allegations" or "improbable inferences." Id. (citation to quoted case omitted). "The test is whether, as to each essential element, there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."'" Id. (citation to quoted case omitted).
Plaintiff's Request For Additional Discovery
In her opposition, Plaintiff requests that the Court defer ruling on Defendants' motions pursuant to Fed.R.Civ.P. 56(d) until she has had an opportunity to conduct further discovery. In support of her request, Plaintiff alleges that Defendants failed to adequately respond to her requests for discovery. Essentially, the Plaintiff is asking the Court to extend the deadline for fact discovery. Generally, a party seeking to extend discovery deadlines:
must show good cause for the desired extension. But where, as here, the litigant is faced with an expired deadline, more is required: she must show that her failure to request an extension in a [timely] manner constitutes exclusable neglect.
In federal civil procedure, excusable neglect' is a term of art. It encompasses inadvertence, mistake, or carelessness, as well as... intervening circumstances beyond the party's control.' Determining the existence vel non of excusable neglect is an equitable exercise that takes into account the totality of the circumstances. Even so, a lawyer's inattention or carelessness, ' without more, normally does not constitute "excusable neglect."'
Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc., 730 F.3d 23, 26-27 (1st Cir. 2013)(internal citations and citations to quoted cases omitted). Additionally, Fed.R.Civ.P. 56(d) cannot be invoked to avoid a party's obligation to comply with its discovery obligations:
the rule is not designed to give relief to those who sleep upon their rights.' It follows that a party seeking to derive the benefit of [this rule] must demonstrate due diligence both in conducting discovery before the emergence of the summary judgment motion and in pursuing an extension of time once the motion has surfaced.
Rivera-Almodovar, 730 F.3d at 29 (internal citation and citation to quoted case omitted).
A party seeking to invoke Rule 56(d) must, "by affidavit or in some other authoritative manner: (i) explain his or her current inability to adduce the facts essential to filing an opposition, (ii) provide a plausible basis for believing that the sought-after facts can be assembled within a reasonable time, and (iii) indicate how those facts would influence the outcome of the summary judgment motion." Id., at 29 (citation to quoted case omitted). Generally, Rule 56(d) motions for continuances are liberally granted where such prerequisites are satisfied. Pina v. Children's Place, 740 F.3d 785, 794 (1st Cir. 2014).
Plaintiff has not submitted an affidavit or declaration in support of her request-she simply includes her request in her unsworn opposition to Defendants' summary judgment motions, which is arguably insufficient to meet the requirements of Rule 56(d). See CareToLive v. Food and Drug Admin., 631 F.3d. 336, 344-45 (6th Cir. 2011). Nevertheless, I will address the merits of her request. Plaintiff asserts that she has established the she was unable to complete discovery during the deadlines imposed by the Court and good cause exists for her not having previously obtained the documents she now seeks. More specifically, she asserts that she served her original discovery requests on the Defendants in 2009 and 2011 and amended requests were answered incompletely by the Defendants in August 2013. See Pl's Mem.Of L. Opp. To Defs' Wingate Healthcare Inc., Senior Residential Care/Worcester, Inc. And Worcester Skilled Care Inc's Mot. For Sum. J. (Docket No. 76)(" Pl's First Opp. "), at pp. 3-4, and Pl's Mem.Of L. Opp. To Defs' Patricia Kennedy And Denise Zuaffante's Mot. For Sum. J. (Docket No. 78)(" Pl's Second Opp. "), at pp. 3-4. Plaintiff contends that the discovery produced in August, although containing some information, was incomplete and it was apparent that there was information missing that was subject to discovery. Among the twenty three requests sought by Plaintiff are the following materials: (1) Wingate, Senior Care's and WSCC's employee handbooks; (2) Wingate's code of conduct; (3) Staffing records, social worker records, payroll records, fax records, risk management records, COBRA notices, etc.; (4) records of the employee responsible for handling accommodation requests, and (5) Kennedy's typed notes of meetings and conversations regarding the incident and post-termination proceedings. Pl's First Opp., at p. 4; Pl's Second Opp., at p. 4.
Plaintiff does not specify how the requested discovery would be germane to opposing Defendants' motions, does not provide any estimate as to how long it would take to complete the requested discovery, nor indicate how the facts to be adduced from the additional discovery would influence the outcome of the pending motions. Therefore, she has failed to meet her burden to establish that additional discovery under Rule 56(d) is warranted. See Pina, 740 F.3d at 795 (Rule 56(d) motion that merely speculates that something might be discovered but provides no realistic basis for believing that further discovery). At the same time, even without adequate explanation from the Plaintiff, the Court cannot ignore the obvious- at least some of the information sought would necessarily be relevant to the issues raised by the Defendants' motions. However, such a conclusion begs the question, why did the Plaintiff wait until after the Defendants filed their motions to essentially seek to re-open discovery?
The original deadline for the completion of fact discovery, other than expert discovery, was October 31, 2012. See Scheduling Order (Docket No. 21). After multiple requests to extend the deadline for completing discovery, the Court ordered that all fact discovery be completed by June 14, 2013 and that dispositive motions be filed by August 30, 2013. See electronic docket entry at Docket No. 47. A status conference was held on June 14, 2013. At that conference, the Court ordered the Plaintiff to serve discovery requests on Senior Care within 10 days and for that Defendant to respond within 20 days. The parties then informed the Court that fact discovery was complete with the exception of the additional discovery to be sought from Senior Care. See electronic docket entry, Docket No. 60.
On July 19, 2013, the Court extended the deadline for filing dispositive motions until September 30, 2013. See electronic docket entry, Docket No. 64. The fact discovery deadline expired by the middle of July, at the latest and Plaintiff represents that she received Defendants' final discovery responses in August 2013. Plaintiff did not file a request to further extend the fact discovery deadline, nor did she file a motion to compel Defendants to comply with previously served discovery requests prior to Defendants filing their motions for summary judgment on September 23, 2013. Under these circumstances, Plaintiff has failed to establish that she exercised due diligence to obtain the specified discovery from the Defendants before the fact discovery deadline expired. Put another way, Plaintiff has failed to show good cause for not obtaining the requested material/information during the discovery period. Therefore, Plaintiff's request for further discovery ...