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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

ADA M. CONDE-VIDAL, et al.

Plaintiffs

v.

DR. ANA RIUS-ARMENDARIZ, et al.

Defendants




CIVIL NO. 14-1253 (PG)




MOTION REQUESTING THE COURT TO DENY OR
HOLD IN ABEYANCE PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
PURSUANT TO FED.R.CIV.P. 56(b)

TO THE HONORABLE COURT:
COMES NOW, defendants Hon. Alejandro Garca Padilla, Ana Rius, Armendariz, Melba
Acosta Febo, and Wanda Llovet Daz, in their official capacity, without submitting to this
Honorable Courts Jurisdiction, and through the undersigned attorney, respectfully allege and
pray as follows:
INTRODUCTION
On September 15
th
, 2014, plaintiffs filed a Motion for Summary Judgment [Dkt. No. 43],
a Memorandum in support of Motion for Summary Judgment [Dkt. 44], and a Memorandum
in Opposition to Motion to Dismiss [Dkt. No. 45]. Plaintiffs include as evidence a number of
documents, which include sworn statements by the plaintiffs, which are being filed to prove
the truth of the matter.
On September 25
th
, 2014, the appearing defendants filed a Motion for Leave to file
Reply and a Motion for extension of time of fifteen (15) days to file said Reply [Dkt. No. 47].
Case 3:14-cv-01253-PG Document 48 Filed 09/29/14 Page 1 of 5
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Also, pending before the Court are a Motion to Intervene filed by Capellanes
Internacionales Cristianos Len de Jud, Inc. [Dkt. No. 32], and a Memorandum in Opposition
to Motion to Intervene [Dkt. No. 46].
Being that Defendants Motion to Dismiss is still pending, and that the Honorable Court
is considering the Motion to Intervene filed by Capellanes Internacionales Cristianos Len de
Jud, Inc., the discovery in this case has not started. Therefore, the Defendants are not in a
position to effectively file their Objections and any and all evidence with which to oppose
Plaintiffs Statement of Uncontested facts. The appearing defendants respectfully contend that
expecting them to file an Opposition to Plaintiffs Motion for Summary Judgment in such a
premature stage of the proceedings lacerates their due process rights.
RULE 56(d) STANDARD
Fed.R.Civ. P. 56(d) provides:
(d) When Facts Are Unavailable to the Nonmovant

If a nonmovant 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 appropriate order.

Rule 56(d) serves as the safety value designed to abate hasty swing of the summary
judgment axe. Rivera-Torres v. Rey-Hernndez, 502 F.3d 7, 10-11 (1
st
Cir. 2007). The
procedure created by Rule 56(d) serves a valuable purpose in summary judgment practice; it is
the vehicle through which diligent litigants are assured a pre-ruling opportunity for fair
discovery. Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 860 (1
st
Cir. 2008).
A party seeking Rule 56(d) relief must make that request specifically, for example by
Case 3:14-cv-01253-PG Document 48 Filed 09/29/14 Page 2 of 5
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plainly asking the trial court to deny the pending motion or to defer it until discovery is
completed. Vlez v. Awning Windows, Inc., 375 F.3d 35, 40 (1
st
Cir. 2004).
Although relief under this Rule is often and liberally granted, it does not come
automatically. Before the courts will postpone a summary judgment ruling pending further
discovery, the courts will generally require a Rule 56(d) movant to make essentially three
showings: (1) a description of the particular discovery the movants intend to seek; (2) an
explanation showing how that discovery would preclude the entry of summary judgment; and
(3) a statement justifying why this discovery had not been or could have not been obtained
earlier. Mir-Yepez v. Banco Popular de Puerto Rico, 560 F.3d 14, 16 (1
st
Cir. 2009).
Some courts have held that a postponement in entering summary judgment may still
be appropriate, even in the absence of a Rule 56(d) affidavit or declaration, where the
nonmoving party adequately notifies the trial court that summary judgment is premature and
that additional discovery is necessary, and where the nonmoving party-through no fault- has
had little or no opportunity for discovery. Nader v. Blair, 549 F.3d 953, 961 (4
th
Cir. 2008);
Harrods Ltd. V. Sixty Internet Domain Names, 302 F.3d 214, 244 (4
th
Cir. 2002).
When a summary judgment motion is filed very early in the litigation, before a realistic
opportunity for discovery, courts generally grant Rule 56(d) postponements freely. Burlington
Northern Santa Fe R. Co. v. Assiniboine and Sioux Tribes of Fort Oeck Reservation, 323 F.3d
767, 773-74 (9
th
Cir. 2003). In such cases, summary judgment should be refused as a matter
of course. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). With such early filed motions, the courts recognize that the Rule 56(d) affiant or
declarant mat not be capable of framing a postponement request with great specificity.
Burlington, 323 F.3d at 773-74 (noting that affiant cannot be expected to frame motion with
Case 3:14-cv-01253-PG Document 48 Filed 09/29/14 Page 3 of 5
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great specificity as to nature of discovery likely to develop useful information because ground
for such specificity has not yet been laid).
DISCUSSION
The instant case is in its early stages, meaning the consideration of Motions to Dismiss
and oppositions, and in this case a Reply yet to be filed, to be followed by a Sur Reply by the
plaintiffs. At this stage, discovery has not started. Yet plaintiffs filed a Motion for Summary
Judgment with all the evidence they have at hand, and without the defendants having the
opportunity to conduct the discovery that they deem necessary after the controversies to be
attended to at the Summary Judgment stage be delineated in an Opinion and Order on the
Motion to Dismiss.
At this stage of the proceedings, Plaintiffs Motion for Summary Judgment is premature.
Being that discovery has not started in this case, the requirements of Rule 56(d) as to the
showings defendants must make when requesting relief under such Rule do not apply in this
case, as the Rule specifically refers to further discovery, whereas discovery in this case has not
started yet.
The appearing defendants have a right to due process in this litigation, and as such
they hereby request the relief provided by Fed.R.Civ.P. 56(b) as to the Motion for Summary
Judgment filed by the plaintiffs. Specifically, Defendants seek this Honorable Court to DENY
Plaintiffs Motion for Summary Judgment as premature, or in the alternative to HOLD IN
ABEYANCE said Motion for Summary Judgment until the Honorable Court rules upon
Defendants Motion to Dismiss, the Defendants make the discovery they understand necessary
within the time table set by the Honorable Court, and they file their Opposition to Plaintiffs
Motion for Summary Judgment.
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WHEREFORE, it is respectfully requested that this Honorable Court DENY Plaintiffs
Motion for Summary Judgment as premature, or in the alternative to HOLD IN ABEYANCE
said Motion for Summary Judgment until the Honorable Court rules upon Defendants Motion
to Dismiss, the Defendants make the discovery they understand necessary within the time
table set by the Honorable Court, and they file their Opposition to Plaintiffs Motion for
Summary Judgment.
I HEREBY CERTIFY that on this same date, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system, which will send an electronic copy to all attorneys
to their address of record.
RESPECTFULLY SUBMITTED.
In San Juan, Puerto Rico, this 29
th
day of September 2014.
CESAR MIRANDA RODRIGUEZ
Secretary of Justice

MARTA ELISA GONZALEZ Y.
Deputy Secretary
In Charge of Civil Matters

JANITZA M. GARCIA MARRERO
U.S.D.C.-P.R. Bar No. 222603
Federal Litigation Division
jgarcia@justicia.pr.gov

S/ Idza Daz Rivera
IDZA DIAZ RIVERA
U.S.D.C. NO. 223404
Federal Litigation Division
Department of Justice
P.O. Box 9020192
San Juan, P.R., 00902-0192.
Tel. (787) 721-2900, Ext. 2606
Fax (787) 723-9188
idiaz@justicia.pr.gov
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