Opinion
NO. 2:05-cv-2299-MCE-EFB.
January 26, 2007
ORDER
On January 19, 2007, counsel for Plaintiff Pamela Lynn Rux filed a request to continue the February 12, 2007 hearing on Defendant Starbucks' Motion for Summary Judgment (filed January 12, 2007) pursuant to Federal Rule of Civil Procedure Rule 56(f). Plaintiff contends that she needs the deposition of Nancy Beall, which is currently set for February 9, 2007, in order to adequately oppose Starbucks' Motion. Alternatively, Plaintiff asks that Defendants' Motion be denied pending Ms. Beall's deposition. Starbucks has not opposed Plaintiff's request.
The Declaration of Victoria M. Ciganda filed in support of Plaintiff's request indicates that Plaintiff's counsel has attempted to schedule the deposition of Ms. Beall since June of 2006. (Ciganda Decl., ¶ 4). Plaintiff's papers also detail how Ms. Beall's deposition testimony may be crucial in opposing Starbuck's Motion for Summary Judgment. (Plaintiff's Moving Papers, 8:4-23).
Rule 56(f) provides for continuance of a summary judgment motion under such circumstances, stating in pertinent part as follows:
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Rule 56(f) confers the court with discretion to order that additional discovery be completed before to summary judgment, or to "make such order as it just" to "protect parties from a premature grant of summary judgment." Weinberg v. Whatcom County, 241 F.3d 746, 750 (9th Cir. 2001). "A district court should continue a summary judgment upon a good faith showing by affidavit that the continuance is needed to obtain facts essential to preclude summary judgment." Id. at 750, citing Cal. Campbell, 138 F.3d 772, 779 (9th Cir. 1998).
Because Plaintiff alleges that Ms. Beall's deposition is crucial in obtaining facts necessary to show that Starbucks engaged in discriminatory conduct towards Plaintiff, because Plaintiff has been attempting to obtain Ms. Beall's deposition for many months, and because Starbucks agreed to produce Ms. Beall for deposition prior to expiration of the discovery cutoff in this matter on January 15, 2007, the Court finds that Plaintiff has shown good cause for continuing the hearing on Starbucks' Motion for Summary Judgment, particularly given Starbucks' apparent non-opposition to Plaintiff's request. The hearing on said Motion for Summary Judgment is hereby continued to April 2, 2007 at 9:00 a.m. The deadlines for opposition and reply, if any, shall be calculated in advance of that continued date in accordance with Local Rule 78-230(c). The discovery cutoff in this matter is extended for the sole purpose of obtaining Nancy Beall's deposition on February 9, 2007.
IT IS SO ORDERED.