United States District Court, S.D. Georgia, Brunswick Division
STAN BAKER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion to Hold
in Abeyance, (doc. 23), and Defendant's Motion to Strike
Jasmine Castro's Declaration, (doc. 32). For the reasons
set forth below, the Court DENIES
Plaintiff's Motion and GRANTS
filed a cause of action in the Wayne County State Court on
January 30, 2017, resulting from her alleged slip and fall
accident occurring at Wal-Mart in Jesup, Georgia, in February
2015. (Doc. 1, pp. 1-2, 10.) On May 23, 2017, Defendant
Wal-Mart Stores, Inc. (“Defendant”) and former
Defendant Scott Kittles filed a Notice of Removal in this Court
based on the parties' diversity of citizenship.
(Id. at p. 3.) This Court entered a Scheduling Order
on July 20, 2017, directing the parties to complete all
written discovery and discovery depositions by October 10,
2017, and to file all motions by November 9, 2017. (Doc. 13,
p. 2.) The Court later amended certain deadlines upon the
parties' request, with all discovery depositions to be
completed by December 29, 2017, and all motions were to be
filed by January 26, 2018. (Doc. 17.)
filed its Motion for Summary Judgment on January 26, 2018,
(doc. 19), to which Plaintiff responded, (doc. 24). Plaintiff
filed her Motion to Hold in Abeyance on March 2, 2018, and
Defendant filed its Response. (Docs. 23, 30.) Defendant filed
its Motion to Strike on March 30, 2018, (doc. 32), and
Plaintiff has failed to respond.
Plaintiff's Motion to Hold in Abeyance
asserts she discovered Jerrell Harris, a Wal-Mart employee
and material witness with vital testimony to provide in
opposition to Defendant's Motion for Summary Judgment,
after the discovery period ended. (Doc. 23, pp. 1-2.)
Plaintiff requests that the Court hold in abeyance any ruling
on Defendant's Motion for Summary Judgment until after
she can depose Mr. Harris. (Id. at p. 1.)
response, Defendant states this case has been pending for
over a year, and Plaintiff has had more than three years'
time to discover all witnesses and to depose those witnesses.
(Doc. 30, p. 1.) Specifically, Defendant alleges
Plaintiff's counsel informed its counsel that Mr. Harris
approached Plaintiff's daughter-in-law on the date
Plaintiff allegedly suffered her accident, yet Plaintiff was
not aware of this conversation until more than two years
after it occurred and over two weeks after Defendant filed
its Motion for Summary Judgment. (Id. at p. 3.)
Defendant maintains Plaintiff did not disclose this
conversation in her written discovery responses and failed to
mention it during her deposition. Defendant alleges it had no
reason to know of Mr. Harris' involvement with the facts
underlying this cause of action until February 2018.
(Id.) In contrast, Defendant avers Plaintiff was in
a position to discover this conversation well before she
filed her cause of action, yet she waited to disclose this
conversation until after Defendant filed its dispositive
Defendant notes, Plaintiff cites no authority on which to
base her Motion. Federal Rule of Civil Procedure 56(d)
provides, however, that a nonmovant can show “by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its
opposition[.]” Upon such a showing, a court may
“defer considering the motion [for summary judgment] .
. .;” or “allow time to obtain affidavits or
declarations or to take discovery[.]” Fed.R.Civ.P.
56(d)(1), (2); see also Wingster v. Head, 318
Fed.Appx. 809, 813 (11th Cir. 2009) (per curiam) (stating
that the rule now designated as Rule 56(d) allows a district
court to hold a motion for summary judgment in abeyance and
allow for additional discovery when the party opposing the
motion makes a sufficient showing of the need for the
applying this rule, courts . . . have held that a party
opposing a summary judgment motion in this fashion
‘must conclusively justify his entitlement to the
shelter of Rule 56[(d)] by presenting specific facts
explaining the inability to make a substantive
response.'” Geathers v. Bank of Am., N.A.,
No. 1:14-CV-00850-WSD, 2015 WL 5089347, at *5 (N.D.Ga. July
6, 2015) (alteration in original) (quoting Virgilio v.
Ryland Grp., Inc., 680 F.3d 1329, 1338 (11th Cir.
2012)), objections sustained in part and overruled in
part, 2015 WL 5092506 (N.D.Ga. Aug. 27, 2015).
“The party seeking to use Rule 56(d) ‘may not
simply rely on vague assertions that additional discovery
will produce needed, but unspecified, facts, but rather he
must specifically demonstrate how postponement of a ruling on
the motion will enable him, by discovery or other means, to
rebut the movant's showing of the absence of a genuine
issue of fact.'” Id. (quoting Wallace
v. Brownell Pontiac-GMC Co., 703 F.2d 525, 527 (11th
Cir. 1983); citing Anderson v. Dunbar Armored, Inc.,
678 F.Supp.2d 1280, 1294 (N.D.Ga. 2009) (Martin, J., adopting
Baverman, M.J.) (same); accord SEC v. Spence & Green
Chem. Co., 612 F.2d 896, 901 (5th Cir.
1980)). The decision to grant or deny a Rule 56(d)
motion lies within the sound discretion of the trial judge.
Smith v. Fla. Dep't of Corrs., 713 F.3d 1059,
1063 (11th Cir. 2013).
all Plaintiff offers is that she was unaware of Mr. Harris
until after the discovery period ended. (Doc. 23, p. 2.)
However, Plaintiff does not offer this conclusory statement
by way of affidavit or declaration, as Rule 56(d) requires.
Even if Plaintiff had provided this explanation via the
proper form, she has failed to show why she could not and did
not present Mr. Harris as a witness with “vital
testimony and evidence which is material to [her] ability to
defend against” Defendant's Motion for Summary
Judgment prior to filing her Motion on March 2, 2018.
(Id. at pp. 1-2.) Moreover, Plaintiff fails to
specify the nature of Mr. Harris' “vital testimony
and evidence” or how this testimony and evidence will
serve to rebut Defendant's Motion for Summary Judgment.
Plaintiff had ample opportunity to discover Mr. Harris and
the nature of his evidence and testimony through the
discovery processes. As detailed above, Plaintiff's
alleged slip and fall occurred in February 2015, and she
filed suit in the State Court of Wayne County on January 30,
2017. (Doc. 1, p. 10.) Defendant removed this cause of action
to federal court on May 23, 2017. (Doc. 1.) By the
Court's original Scheduling Order, the parties were to
have all discovery, including all discovery depositions,
completed by October 10, 2017. (Doc. 13, p. 2.) The Court
later extended the discovery deposition deadline (for
experts) until December 29, 2017. (Doc. 17, p. 2.) It appears
Plaintiff expects this Court to believe that, from the date
of Plaintiff's slip and fall until the date she filed the
instant Motion-a period of more than three (3) years'
time-Plaintiff could not have discovered Mr. Harris or his
knowledge of this cause of action. Plaintiff does not offer
any unique circumstances that prevented her from discovering
this information. Rather, it appears that Plaintiff had more
than ample time to discover Mr. Harris' knowledge of the
instant slip and fall incident, yet she failed to do so.
Further, the sudden emergence of Mr. Harris as a witness in
this case years after the incident and in the wake of
Defendant's summary judgment filing is specious to say
put, Plaintiff fails to establish her entitlement to the
shelter of Rule 56(d). See McIntyre v. Marriot Ownership
Resorts, Inc., Civil Action No. 13-80184, 2015 WL
162948, at *6 (S.D. Fla. Jan. 13, 2015) (denying motion to
hold summary judgment ruling in abeyance where plaintiffs had
four months to gather evidence to oppose the summary judgment
motion and failed to do so and also failed to show how any of
the desired testimony and evidence would help plaintiffs
oppose the summary judgment motion). Accordingly, the Court