The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Preserve Partners, Inc.,
Plaintiff, Case No. 2:22-cv-477
Vv. Judge Michael H. Watson
Sawmill Park Properties, LLC, Magistrate Judge Vascura
Defendant.
OPINION AND ORDER
Preserve Partners (“Plaintiff?) moves pursuant to Federal Rule of Civil
Procedure 56(d) to defer consideration of Sawmill Park Properties’ (“Defendant”)
pending motion for summary judgment. ECF No. 40. Defendant opposes
Plaintiffs motion. ECF No. 43. For the following reasons, Plaintiffs motion is
GRANTED.
I. FACTS
The Court previously summarized the alleged facts in this case, in
pertinent part, as follows:
This case arises out of the sale of a piece of real property located at
2765 Sawmill Park Drive, Columbus, Ohio (the “Property”). See
generally Amend. Compl., ECF No. 18. In October 2019, the parties
entered into a contract for the sale of the Property (the “Contract’),
with Defendant as the seller and Plaintiff as the buyer. /d. JJ 1, 8; see
also Contract, Amend. Compl. Ex. A, ECF No. 18-1. The sale closed
in January 2020. Amend. Compl. { 12, ECF No. 18. One provision
of the Contract requires Defendant to pay any taxes “retroactively
assessed against the Property for . . . any tax years prior to the tax
year in which the Closing occurs.”! Contract § 8.11(c), Amend. Compl.
Ex. A, ECF No. 18-1. After closing, in March 2020, the Board of
Education of the Dublin City School District (“BOE”) filed a tax
complaint with the Franklin County Board of Revision. Amend. Compl.
q 12, ECF No. 18. In the tax complaint, the BOE sought to increase
the 2019 valuation of the Property by $10,250,000. /d. Following an
appeal, the BOE and Plaintiff entered into a settlement agreement,
under which $112,775.21 of 2019 taxes were owed. /d. ff] 12-13.
Plaintiff told Defendant about the 2019 tax bill in July 2021. /d. J 15.
Defendant responded it did not intend to pay the 2019 taxes. /d.
Subsequently, Plaintiff sent a demand letter to Defendant for payment
of the 2019 taxes, but Defendant has not yet paid the 2019 taxes. /d.
qT 16-17.
Op. and Order 1-2, ECF No. 28.
ll. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(d), if a nonmovant for
summary judgment 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.
Fed. R. Civ. P. 56(d).
“The purpose behind Rule 56(d) is to ensure that plaintiffs receive a full
opportunity to conduct discovery to be able to successfully defeat a motion for
summary judgment.” Doe v. City of Memphis, 928 F.3d 481, 490 (6th Cir. 2019)
(internal quotation marks and citations omitted). The non-movant must show by
1 The Contract also states that this provision “shall survive Closing for a period of
twenty-four (24) months (the “Survival Period”).” Contract § 8.11(c), Amend. Compl. Ex.
A, ECF No. 18-1.
Case No. 2:22-cv-477 Page 2 of 8
affidavit or declaration, “now postponement of a ruling on the motion will enable
him . . . to rebut the movant's showing of the absence of a genuine issue of fact.”
FTC v. E.M.A. Nationwide, Inc., 767 F.3d 611, 623 (6th Cir. 2014). “The
[declaration] must indicate to the district court the party's need for discovery,
what material facts it hopes to uncover, and why it has not previously discovered
the information.” City of Memphis, 928 F.3d at 490 (cleaned up). However, if the
requested additional discovery is “irrelevant to the underlying issue to be
decided,” the Court need not grant the motion. /n re Bayer Healthcare & Merial
Ltd. Flea Control Prods. Mktg. & Sales Practices Litig., 752 F.3d 1065, 1074 (6th
Cir. 2014).
In determining whether to permit the requested additional discovery, the
Court considers five factors: (1) when the party seeking discovery learned of the
issue that is the subject of the desired discovery; (2) whether the desired
discovery would change the ruling; (3) how long the discovery period has lasted;
(4) whether the party seeking discovery was dilatory in its discovery efforts; and
(5) whether the party moving for summary judgment was responsive in its
discovery requests. Wilson v. Ebony Constr. LLC, No. 2:17-CV-1071, 2018 WL
4743063, at *3 (S.D. Ohio Oct. 2, 2018); see also Plott v. Gen. Motors Corp.,
Packard Elec. Div., 71 F.3d 1190, 1196-97 (6th Cir. 1995). However, the chief
inquiry is “whether the moving party [under Rule 56(d)] was diligent in pursuing
discovery.” Bailey v. Sperry Van Ness/R.M. Moore, LLC, No. 3:16-CV-128, 2016
WL 4250328, at *1 (E.D. Tenn. Aug. 10, 2016) (quoting E.M.A. Nationwide, Inc.,
Case No. 2:22-cv-477 Page 3 of 8
767 F.3d at 623). Moreover, “if the party seeking relief under Rule 56(d) has not
received a full opportunity to conduct discovery, a denial of that party’s Rule
56(d) motion and ruling on a summary judgment motion would likely constitute an
abuse of discretion.” /d. (quoting Ball v. Union Carbide Corp., 385 F.3d 713, 719
(6th Cir. 2004)).
lll. ANALYSIS
As required by the rule, Plaintiff attaches a declaration in support from its
counsel. ECF No. 40-1. In its motion and declaration, Plaintiff asserts that
deferral is warranted because: (1) the parties are in the midst of a discovery
dispute; (2) Defendant has not yet certified that it produced all responsive
documents to Plaintiff; (3) Plaintiff has not received Defendant's full privilege log;
and (4) Plaintiff has not been able to conduct a 30(b)(6) deposition of Defendant.
See ECF Nos. 40, 40-1. Specifically, Plaintiff asserts that it believes additional
discovery will establish that:
(1) the amount agreed to by the BOE and [Plaintiff] for the 2019 taxes
was $112,775.21; (2) counsel for [Plaintiff] notified [Defendant] of the
BOE complaints and the Settlement Agreement and demanded
prompt payment of $112,775.21 within the 24-month survival period;
(3) [Defendant] failed to respond or otherwise object to the demand
for payment for months; (4) [Plaintiff] repeatedly followed up on its
demand to [Defendant]; (5) [Defendant] finally rejected [Plaintiff's]
demand for payment, still within the 24-month survival period; (6) the
intent of the retroactive tax obligation included agreed upon amounts;
and (7) the obligation to pay retroactive taxes was triggered by the
demand.
Mot. 3, ECF No. 40.
Case No. 2:22-cv-477 Page 4 of 8
From a brief review of the docket, the central disputed issue in this case
appears to be whether any retroactive taxes were assessed on the Property
within the Survival Period and, if so, whether Plaintiff notified Defendant of the
tax obligation within the Survival Period. Accordingly, the Court’s analysis
focuses on how additional discovery may inform this issue.
The first “factor primarily pertains to situations where there was something
that prevented a party from learning about a subject of desired discovery until
after some discovery had already been sought.” Burnett v. Herron, No. 18-CV-
12471, 2023 WL 2712476, at *9 (E.D. Mich. Mar. 30, 2023) (citing Woods v.
McGuire, 954 F.2d 388, 391 (6th Cir. 1992)). Plaintiff has known since the
commencement of this action what the likely central issues would be and has
known that it would need to conduct a 30(b)(6) deposition of Defendant.
However, Plaintiff also asserts that Defendant’s motion for summary judgment
advances arguments not previously apparent from discovery. St. Cyr Decl. {| 4,
ECF No. 40-1. Plaintiff also asserts that it has been attempting to schedule a
30(b)(6) deposition of Defendant since March 8, 2023, and that Defendant has
not cooperated. /d.
On balance, the Court finds that although there may be some issues
Plaintiff learned of only when Defendant filed its motion for summary judgment,
Plaintiff has been aware of the need to conduct discovery on these central issues
and of the need to conduct a 30(b)(6) deposition since this case began. See
Lookout Mountain Suites, LLC v. Pinkston, No. 1:18-CV-311, 2021 WL 722732,
Case No. 2:22-cv-477 Page 5 of 8
at *5 (E.D. Tenn. Feb. 24, 2021) (concluding similarly). Furthermore, Plaintiff's
assertions regarding its attempt to schedule a 30(b)(6) deposition of Defendant
since March 8, 2023, are not compelling given this is only one day before
Defendant filed its motion for summary judgment. See docket. Accordingly, this
factor does not weigh in favor of granting Plaintiff's motion.
Under the second factor, although it is not clear whether the desired
discovery would affect the Court's ruling, it is at least conceivable. For example,
Plaintiff argues that it expects to learn additional information to support its
position that it gave notice of the settlement agreement to Defendant within the
Survival Period and that Defendant failed to respond to Plaintiff's notice for
months. Furthermore, assuming the Court were to decide that such notice to
Defendant sufficed to trigger the retroactive tax obligation, the Court would then
be tasked with deciding whether the provision also encompassed tax obligations
assessed due to a settlement agreement. Because the Contract is silent on this
issue, and Plaintiff expects to learn additional information about the intent behind
this provision with additional discovery, it is possible that such discovery could
affect the Court’s ruling. See Ashley Furniture Indus. Inc. v. Am. Signature, Inc.,
No. 2:11-cv-00427, 2011 WL 4383594, at *4 (S.D. Ohio Sept. 19, 2011) (holding
that a party seeking relief under Rule 56(d) need only show discovery sought at
least has the potential to materially influence the Court’s determination).
Accordingly, the second factor weighs in favor of granting Plaintiffs motion.
Case No. 2:22-cv-477 Page 6 of 8
The third and fourth factors relate to timeliness and diligence, with
diligence being the chief inquiry under Rule 56(d). See Wilson, 2018 WL
4743063, at *5. Discovery has not yet closed—in fact, the Court recently granted
an extension of the discovery deadline. Defendant moved for summary judgment
several weeks before the close of discovery and in the midst of a discovery
dispute before the Magistrate Judge; additionally, this case has been pending for
just over one year. “At this early juncture, the Court is wary to put the proverbial
cart before the horse and rule on [the] summary judgment motion. Indeed, the
Sixth Circuit has admonished district courts that summary judgment should not
ordinarily be granted before discovery has been completed.” /d. (cleaned up)
(granting a Rule 56(d) motion when a plaintiff moved for summary judgment just
over two months before the close of discovery and the case had been pending
for approximately eight months). Furthermore, there is no indication that Plaintiff
has been dilatory in pursuing discovery. Even though Plaintiff has known about
the need to conduct a 30(b)(6) deposition since these proceedings began, it is
reasonable to wait to do so until] document discovery is complete or nearly
complete. Cf. Muhammad v. Gibson, No. 2:21-CV-4165, 2022 WL 1487044, at
*4 (S.D. Ohio May 11, 2022) (granting a Rule 56(d) motion when the parties
agreed it was reasonable to wait to take depositions after written discovery was
complete). Accordingly, these two factors weigh in favor of granting Plaintiff's
motion.
Case No. 2:22-cv-477 Page 7 of 8
Finally, it appears Defendant has attempted to delay discovery throughout
this case. First, Plaintiff was forced to file a motion to compel additional
discovery, which the Court granted. ECF No. 38. Second, immediately after
Defendant moved for summary judgment, it moved to stay discovery, ECF No.
35, which the Magistrate Judge denied, ECF No. 45. Further, Plaintiff asserts
that Defendant has not been responsive to discovery requests even with a Court
Order in place. St. Cyr Decl. 1 11, ECF No. 40-1. Although the Court is not best
equipped to determine Defendant's responsiveness to discovery requests on the
basis of briefing alone, the Court finds that, on balance, this factor also weighs in
favor of granting Plaintiff's motion.
IV. CONCLUSION
In sum, the factors weigh in favor of granting the motion, and Plaintiff's
motion is GRANTED. Defendant's motion for summary judgment, ECF No. 34, is
STRICKEN. Both parties may file fulsome motions for summary judgment by the
currently scheduled dispositive motions deadline, after completion of discovery.
The Clerk shall strike ECF No. 34 and terminate ECF No. 40.
IT IS SO ORDERED. | | | | | ;
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
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