United States District Court, D. South Dakota, Western Division
STEVEN B. KING, ARLENE F. KING, Plaintiffs,
DAVID J. AKERS, DAVID J. ROTH, ROTH TRUCKING, INC., RUSHMORE RENT & LEASE, INC., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR LEAVE TO
CONDUCT RULE 56(d) DISCOVERY
WOLLMANN UNITED STATES MAGISTRATE JUDGE
a diversity action arising out of a collision between
Defendant David Akers and Plaintiff Steven King. Plaintiffs
Steven and Arlene King filed a Motion for Partial Summary
Judgment (Doc. 18) on the issue of liability. Defendants
David Akers, David Roth, Roth Trucking, Inc., and Rushmore
Rent & Lease, Inc., oppose the motion and filed a Motion
for Leave to Conduct Rule 56(d) Discovery. (Doc. 24). United
States District Court Judge Jeffrey L. Viken, Chief Judge,
referred the Motion for Leave to Conduct Rule 56(d) Discovery
to this magistrate judge for determination. (Doc. 28).
following material facts are taken from Plaintiffs'
Statement of Undisputed Material Facts (Doc. 20), and
Defendants' Objections and Responses to Plaintiffs'
Statement of Undisputed Material Facts (Doc. 26). The facts
are “viewed in the light most favorable to [Defendants,
who] oppose the motion.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
David Akers operated a semi-truck owned by Defendant Rushmore
Rent & Lease, and leased to Defendant Roth Trucking. On
July 11, 2017, Mr. Akers was traveling eastbound on
Interstate Highway 90 through South Dakota. Plaintiff Steven
King was riding his bicycle along the shoulder of the
eastbound highway as Mr. Akers approached him. Mr. Akers
looked down between the seats of the truck to retrieve an
item from his cooler, drove across the rumble strips onto the
shoulder of the highway, and struck Mr. King. Mr. Akers
received a citation for careless driving in violation of SDCL
§ 32-24-8, which states:
Any person who drives any vehicle upon a highway, alley,
public park, recreational area, or upon the property of a
public or private school, college, or university carelessly
and without due caution, at a speed or in a manner so as to
endanger any person or property, not amounting to reckless
driving as defined in § 32-24-1, is guilty of careless
driving. Careless driving is a Class 2 misdemeanor.
Akers pleaded guilty to the ticket on December 14, 2017, and
was sentenced to a fine and restitution for the damage to Mr.
moved for partial summary judgment on the issue of liability.
Plaintiffs argue that because Mr. Akers pleaded guilty to the
violation of SDCL § 32-24-8, the court should find him
negligent as a matter of law and thus liable. (Doc. 19 at p.
3). Defendants do not dispute Mr. Akers' negligence, but
assert that further discovery is necessary on the issues of
contributory negligence and assumption of risk in order to
determine liability. (Doc. 27 at p. 4). Defendants state that
Plaintiffs fail to cite to facts showing that Mr. King
exercised due care while operating his bicycle, and that he
did not assume the risks involved. Defendants respond further
that Plaintiffs have not shown that Defendants David Roth,
Roth Trucking, and Rushmore Rent & Lease are vicariously
liable as a matter of law. Defendants request that the motion
be denied and the parties be permitted to conduct discovery
on the issues of contributory negligence, assumption of risk,
and vicarious liability. (Doc. 27 at p. 6).
response to the motion for summary judgment, Defendants filed
a motion requesting leave to conduct Rule 56(d) discovery.
(Doc. 24). Because there has not been an opportunity to
conduct sufficient discovery, Defendants state they cannot
present a complete set of facts to justify their summary
judgment opposition. (Doc. 25 at p. 2). Under the court's
current scheduling order, discovery is due by December 14,
2018. (Doc. 17). Defendants anticipate that discovery under
Rule 56(d) will be completed within the scheduling
order's deadlines. (Doc. 25 at p. 3). Plaintiffs did not
file a response to the Motion to Conduct Rule 56(d)
Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment
if it can “show that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). Once the moving
party meets its burden, the nonmoving party may not rest on
the allegations or denials in the pleadings, but rather must
produce affirmative evidence setting forth specific facts
showing that a genuine issue of material fact exists.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). Only disputes over facts that might affect the
outcome of the case under the governing substantive law will
properly preclude summary judgment. Id. at 248.
“[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact.” Id. at 247- 48 (emphasis in original).
Fed.R.Civ.P. 56(d), a nonmovant may show by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition. In such an
instance, the court may: (1) defer considering the motion for
summary judgment 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). “As a
general rule, summary judgment is proper only after the
nonmovant has had adequate time for discovery.”
Hamilton v. Bangs, McCullen, Butler, Foye & Simmons,
L.L.P., 687 F.3d 1045, 1049 (8th Cir. 2012) (internal
quotations omitted). “Nonmovants may request a
continuance under [Rule 56(d)] until adequate discovery has
been completed if they otherwise cannot present facts
sufficient to justify their opposition. This option exists to
prevent a party from being unfairly thrown out of court by a
premature motion for summary judgment.” Id. at
1050. A Rule 56(d) affidavit “must set
forth specific facts further discovery might uncover, or what
information further discovery might reveal.”
Id. (affirming denial of Rule 56(d) motion where
district court stayed discovery and then ruled on motion for
summary judgment, and plaintiff failed to show what further
facts he would uncover through a Rule 56(d) extension).
their Answer to the Complaint, Defendants assert the
affirmative defenses of contributory negligence and
assumption of risk. (Doc. 14). “[F]ederal courts
sitting in diversity cases, when deciding questions of
‘substantive' law, are bound by state court
decisions as well as state statutes.” Hanna v.
Plumer, 380 U.S. 460, 465 (1965) (citing Erie R. Co.
v. Tompkins, 304 U.S. 64 (1938)). “Under South
Dakota law ‘[e]very person is responsible for injury to
the person, property, or rights of another caused by his . .
. want of ordinary care or skill, subject . . . to the
defense of contributory negligence.” SDCL §
20-9-1. Similarly, “[a]ssumption of the risk allows a
jury to relieve a party of liability even though it has found
the party was negligent and the legal cause of another
party's injuries.” Burhenn v. Dennis Supply
Co., 685 N.W.2d 778, 786 (S.D. 2004). Therefore,
“the issue of liability cannot be settled
without first addressing [Defendants'] affirmative
defense[s] of contributory negligence” and assumption
of risk. Nicolay v. Stukel, 900 N.W.2d 71, 79 (S.D.
2017) (emphasis in original).
their Opposition to the Motion for Partial Summary Judgment,
Defendants point out that Plaintiffs show no facts indicating
that Mr. King did not assume the risk of riding his bicycle
on the highway, and did not act in a negligent manner. (Doc.
27 at p. 4-5). Defendants also acknowledge that the parties
must conduct significant discovery regarding the affirmative
defenses, as well as the issue of vicarious liability.
(Id.). Defendants state in their Rule 56(d)
affidavit that no depositions have yet been taken, and they
simply have not had the opportunity to conduct the necessary
discovery. (Docs. 24, 25). Defendants specifically identify
the witnesses ...