You find yourself facing a motion for summary judgement from the Defendants in your case. For whatever reason, you have not conducted all the discovery necessary to address the claims in the motion. In fact, you have not even scheduled the necessary depositions to address the relevant evidence. You learn that under the local rules of the Court, your response is due within 14 days. What do you do? After you contact your malpractice carrier, you get to work to see if you can somehow work yourself out of the predicament you have created. If the delay is no fault of your own, for example, the witness suffered a medical condition that prevented you from deposing the witness, you may not end up having a malpractice claim against you. However, if the delay is from your actions and/or actions, you may have some problems. This article is going to provide you with a map to hopefully prevent your malpractice rates from going up.
The first thing is you need to check the Rules or any scheduling order on the deadline for your response in opposition of the motion for summary judgment. You will be happy to learn that Ohio has modified the Rules of Civil Procedure to uniform the due date for a response in opposition to a motion for summary judgement. Recent amendments to the Ohio Rules of Civil Procedure in 2019 will affect the timeline of court proceedings throughout the state. Notably, Ohio now has uniform motion deadlines to streamline processes. The amendments became effective July 1, 2019, and serve to eliminate confusion regarding deadlines and other requirements.
The Supreme Court of Ohio, in the amendments, has chosen to do away with varying local rules and implement uniform statewide deadlines. The amendment to Rule 6 of the Ohio Rules of Civil Procedure establishes a 28-day deadline for service of responses to motions for summary judgment and a 14-day deadline for service of responses to all other motions. A movant’s reply to a response to any motion may be served within seven days after service of the response. Thus, although the local rule may require a response to the motion from summary judgement within 14 days, as many did before then Rule 6 amendment, you now, under Rule 6, have 28 days.
Now it is time for getting the witness subpoenaed or Noticed for a deposition. There are varying time limits as to the amount of notice that must be given for depositions depending on the forum and/or if requesting documents to be produced. In some instances, if you just want a person to appear for the deposition, technically, in the perfect world, you can get one scheduled to take place before the response to the motion for summary judgement is due. So, as long as the opposing counsel or deponent waive reading, you might get a transcript of the deposition before the 28-day deadline. However, that is in a perfect world, so if you need the deponent to bring documents, you will not meet the 28 day. Further, in the unperfected world we live in, opposing counsel will likely object to the subpoena if he has standing and/or will not waive the reading. In either instance, it will be virtually impossible to get a transcript before the expiration of the 28 days.
The only sure-fire way to avoid having the motion for summary judgement granted without a response in the 28 days is to file a Rule 56 motion for extension of the discovery and/or to respond to the motion for summary judgement. Rule 56(F) of the Ohio Rules of Civil Procedures is the applicable Rule regarding a response to a motion for summary judgment. The relevant portions read:
(F) When affidavits unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient 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 discovery to be had or may make such other order as is just.
Civil Rule 56(F) provides the remedy for a party who seeks a continuance on a motion for summary judgment to conduct discovery relevant to the motion. TPI Asset Management, LLC v. Baxter, 5th Dist. Knox No.2011 CA000007, 2011–Ohio–5584; Hatton v. Interim Health Care of Columbus, Inc., 10th Dist. No. 06AP–828, 2007-Ohio-1418, 2007 WL 902176 (2011). . Similarly, the provisions of Civ.R. 56(F) allow for the trial court to grant a continuance during summary judgment proceedings so that additional discovery may be had to oppose a motion. This is relegated to the sound discretion of the trial court. Fiske v. Rooney, 126 Ohio App.3d 649 (1998), Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 668, 591 N.E.2d 752, 755; Glimcher v. Reinhorn (1991), 68 Ohio App.3d 131, 138, 587 N.E.2d 462, 467. The court's discretion in granting continuances pursuant to Civ.R. 56(F) should be exercised liberally in favor of the nonmoving party. Fiske v. Rooney, 126 Ohio App.3d 649 (1998), Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, 10 OBR 386, 461 N.E.2d 1331; Carrier v. Weisheimer Cos. (Feb. 22, 1996), Franklin App. No. 95APE04–488, unreported, 1996 WL 76317.
Deciding on a motion for summary judgement before ruling on a motion for continuance to respond to the motion for summary judgement is an abuse of discretion. Countrywide Home Loans Servicing, L.P. v. Stultz, 161 Ohio App.3d 829, 2005–Ohio–3282, 832 N.E.2d 125 and Beal Bank S.S.B. v. Means, 2011 WL 5589494 (2011)
In Countrywide Home Loans Servicing, L.P. v. Stultz, 161 Ohio App.3d 829, 2005–Ohio–3282, 832 N.E.2d 125, the defendants, in response to the plaintiff's motion for summary judgment in a foreclosure case, asserted that they may have been the victim of predatory lending practices and sought additional time to complete discovery in order to pursue this defense. The request was supported by an affidavit from counsel. One week later, however, and less than two weeks after the filing of plaintiff's motion for summary judgment, the court abruptly granted summary judgment without reference to defendants' motion for continuance, or the defenses and counterclaims raised by the defense. The Franklin County Court of Appeals reversed, concluding that the trial court had abused its discretion as the award of summary judgment to plaintiff had denied defendants “a meaningful opportunity” to assert their defenses and counterclaims. The court of appeals stated:
“By precluding appellants from obtaining discovery, the court limited itself to consideration of the facts as they appeared in Countrywide's complaint, attached documents, and related pleadings. Obviously, if a nonmovant is denied a reasonable request for time to gather evidence that would allow him to establish a genuine issue of material fact, he will be unable to challenge the motion. Given the relatively short period of time between the filing of the summary judgment motion and the request for a continuance, the fact that the parties disagreed on at least two material issues of fact (the reasonability of the lock-out and the basis for finding a scrivener's error), and the fact that the court appeared not to have considered appellants' answer, the court's refusal to grant appellants' motion for continuance was unreasonable and, therefore, an abuse of discretion.” Id. at ¶ 17, 832 N.E.2d 125.
In Beal, the counsel opposing filed a Rule 56 motion. In support of the motion, he completed an affidavit alleging his health conditions that prevented him from conducting the discovery to oppose the moving party’s motion for summary judgement. The lower court granted the motion for summary judgement. On appeal, the appellate court reversed and held:
The motion for a discovery continuance was filed within the same general time as the brief in opposition would have been due, and in awarding summary judgment to Beal Bank, the trial court denied a reasonable request for time to gather evidence with which to establish a genuine issue of material fact, and therefore denied defendants a meaningful opportunity to assert their defenses and counterclaims. The trial court therefore abused its discretion in failing to view the request liberally in favor of a nonmoving party seeking discovery of evidence. Id at *4 and *5
In Fiske v. Rooney, 126 Ohio App.3d 649 (1998) the appellate court reversed the trial courts denial of motion for continuance. The reversal was directed at the trial court's refusal to grant the nonmoving party a continuance on the summary judgment proceedings, so that he could obtain the deposition testimony of two witnesses.
In Drake Constr. Co. v. Kemper House Mentor, Inc., 170 Ohio App.3d 19, 2007–Ohio–120, the nonmoving party argued that the trial court improperly granted summary judgment to the moving party before Drake had the opportunity to depose a party and witness, Doug Moltz and Betty Kemper. The Court held:
“When a party opposing a summary judgment motion needs further evidence to sustain its case, the proper remedy is to move the trial court to delay judgment pursuant to Civ.R. 56(F)…
Under Civ.R. 56(F), “[a] party who seeks a continuance for further discovery is not required to specify what facts he hopes to discover, especially where the facts are in the control of the party moving for summary judgment.” Doriott v. MVHE, Inc., 2nd Dist. No. 20040, 2004-Ohio-867,at ¶ 41.
In evaluating a motion for a continuance, a court should note, inter alia : the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or *68 whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. See United States v. Burton, (C.A.D.C.1978), 584 F.2d 485, certiorari denied 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34; Giacalone v. Lucas, C.A.6, 1971), 445 F.2d 1238, certiorari denied 405 U.S. 922, 92 S.Ct. 960, 30 L.Ed.2d 793.
Where there is a realistic possibility that genuine issues of material fact will require jury consideration that discretion should be exercised liberally in favor of a nonmoving party who proposes any reasonable interval for the production of those materials. Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, 461 N.E.2d 1331, Beal Bank S.S.B. v. Means, 2011 WL 5589494 (2011). The party who seeks a continuance for further discovery is not required to specify what facts he hopes to discover, especially where the facts are in the control of the party moving for summary judgment. Drake Constr. Co. v. Kemper House Mentor, Inc., 170 Ohio App.3d 19, 2007–Ohio–120 and Doriott v. MVHE, Inc., 2nd Dist. No. 20040, 2004-Ohio-867, at 41
Understand that this article is from the perspective for having the Court grant the Rule 56 Motion. There is equally supportive law for supporting the denial of the Rule 56 motion, the largest portion centered on the moving party’s failure to take timely steps to schedule the necessary depositions and discovery. With that said, hopefully you will never find yourself facing a motion for summary judgment without the necessary evidence to oppose it. However, if you do, you will at least have an argument for delaying the response, so you can get the necessary evidence.