United States District Court, D. Nevada
MARIAN K. PORTER, Plaintiff,
SHYAM K. CHETAL, Individually and d/b/a ADVANTAGE REAL ESTATE PRO; UNITED CAPITAL INVESTMENT, INC. d/b/a NEVADA UNITED CAPITAL INVESTMENTS, INC.; SMARTTOUCH SYSTEMS, INC.; and DOES 1 through 30, inclusive, Defendants.
LARRY R. HICKS, District Judge.
Before the Court is Plaintiff Marian K. Porter's ("Porter") Motion for Summary Judgment. Doc. #39. Defendants Shyam K. Ch ("Chetal") and Smarttouch Systems, Inc. ("SSI") filed an Opposition (Doc. #41), to which Porter Replied (Doc. #43). Chetal's Opposition also included a request for additional time to conduct discovery under Federal Rule of Civil Procedure 56(f). Doc. #41.
I. Facts and Procedural Background
This is a contract dispute in a diversity case in which Porter alleges that Chetal was involved in a fraudulent financing scheme with SSI, United Capital Investments, Inc. ("United"), and Advantage Real Estate Pro ("Advantage"). See Doc. #1 ¶¶ 2-4, 21, 61-63, 72, 78, 95, 104. Porter and her husband purchased the land at issue from the Bureau of Land Management ("BLM") in 1986 and paid yearly annual license fees of $15, 000 for twenty-six years. Doc. #39 at 2. Following the death of Porter's husband, and due to other financial hardships, she was forced to seek a buyer for the land in 2013. Id. On August 20, 2013, Chetal-on behalf of United-offered to purchase Porter's mining rights, which Porter claims were worth between $11 Billion and $22 Billion, and pay the required maintenance fees. Doc. 1, Ex. 1. In connection with this offer, Chetal also provided documentary proof of his financial ability to pay. Id., Ex. 3. Porter allegedly relied on these documents for assurance of payment and accepted Chetal's offer. See Doc. #1 ¶90. Thereafter, Chetal proffered a check for $276, 480 to the BLM to cover the maintenance fees, but the check was declined twice for insufficient funds and Porter permanently and irrevocably lost all rights to her mining claims. Id. ¶ 39-41.
Porter alleges that none of the Defendants had the financial capability or intention to pay the maintenance fees or purchase the mining claims. Id. ¶ 43. Porter alleges further that Defendants intentionally perpetrated the financing scheme to cause Porter to lose her mining claims, thereby enabling Chetal to purchase the claims directly from the BLM at a lower price. Id. ¶¶ 44-46. On December 3, 2013, Porter filed a Complaint alleging breach of contract, tortious breach of contract, fraud, negligence, and breach of the implied covenant of good faith and fair dealing. See id.
Chetal has alleged that Schwelling made an oral promise on August 15, 2013, to make the $276, 480 payment in return for future rights to the mining operation. Doc. #21 at 3. Chetal alleges that in reliance on this promise, he sent a check for the full amount to the BLM. Id. In an October 16, 2014 Order, the Court granted Schwelling's Motion to Dismiss Chetal's third-party complaint because any oral agreement between Chetal and the third-party defendants would have been barred by the statute of frauds. Doc. #42. Porter filed her Motion for Summary Judgment on September 10, 2014.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the record show that "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). A motion for summary judgment can be complete or partial, and must identify "each claim or defense-or the part of each claim or defense-on which summary judgment is sought." Fed.R.Civ.P. 56(a).
The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that no "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On an issue as to which the nonmoving party has the burden of proof, however, the moving party can prevail merely by demonstrating that there is an absence of evidence to support an essential element of the non-moving party's case. Celotex, 477 U.S. at 323.
To successfully rebut a motion for summary judgment, the nonmoving party must point to facts supported by the record that demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Liberty Lobby, 477 U.S. at 248. Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the party's position is insufficient to establish a genuine dispute; there must be evidence on which a jury could reasonably find for the party. See id. at 252. "[S]peculative and conclusory arguments do not constitute the significantly probative evidence required to create a genuine issue of material fact." Nolan v. Cleland, 686 F.2d 806, 812 (9th Cir. 1982).
A. Additional Discovery Request Under Rule 56(f)
Chetal argues that Porter's Motion should be denied because the parties have not had enough time to conduct discovery, and requests that before ruling on the Motion, the Court grant additional time for discovery under Federal Rule of Civil Procedure 56(f). Doc. #41. "Federal Rule of Civil Procedure 56(f) provides a device for litigants to avoid summary judgment when they have not had sufficient time to develop affirmative evidence." United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). Rule 56 permits a party to move for summary judgment twenty days after the commencement of the action. "Where, however, a summary judgment motion is filed so early in the litigation, before a party has had a realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56(f) motion fairly freely." Burlington N. Santa Fe R.R. Co. v. The Assiniboine and Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). "The facts supporting a Rule 56(f) motion must be set forth in an accompanying affidavit, " and failure to attach such affidavit "is proper ground for denying relief." Kitsap, 314 F.3d at 1000 (citing State of Cal., on Behalf of Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998)). "The burden is on the party seeking additional discovery to proffer sufficient facts to show that the evidence sought exists, and that it would prevent summary judgment." Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001).
Chetal did not attach an affidavit setting forth the facts sought by additional discovery. Additionally, Porter filed her Motion for Summary Judgment ten months after commencement of the action-well after the time permissible under Rule 56-and Chetal has not identified any effort to conduct discovery during this period. "[T]he district court does not abuse its discretion by denying further discovery if the movant has failed diligently to pursue discovery in the past." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th Cir. 1996). Accordingly, the Court denies Chetal's Rule 56(f) Motion. See Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998) (finding that a district court only abuses its discretion in denying a Rule 56(f) motion "if the movant diligently pursued its previous discovery opportunities, and if the movant can show how allowing additional discovery would have precluded summary judgment"); Assiniboine, 323 F.3d at 774 (granting a Rule 56(f) motion because the moving party "had no fair opportunity to develop the record" on the matter, and showed "some basis for believing" that additional discovery would yield relevant facts); Visa Int'l Serv. Ass'n v. Bankcard Holders of Am., 784 F.2d 1472, ...