                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


                                                )
VIDYA SAGAR,                                    )
                                                )
                                                )
               Plaintiff,                       )
                                                )
       v.                                       )       Civil Action No. 14-1058 (RDM)
                                                )
JACOB LEW,                                      )
                                                )
                                                )
               Defendant.                       )
                                                )



                                 MEMORANDUM AND ORDER

        Before the Court is Plaintiff’s request, pursuant to Rule 56(d), to take discovery prior to

responding to Defendant’s Motion to Dismiss and for Summary Judgment. See Dkt. 34 (Rule

56(d) declaration); Dkt. 20 (Defendant’s dispositive motion). For the reasons stated below, the

request pursuant to Rule 56(d) is GRANTED and the currently effective stay of discovery in this

action is lifted. Additionally, to clarify the scope of the issues in this case and to facilitate

efficient resolution of Defendant’s dispositive motion, Defendant’s Motion for Leave to Amend

is GRANTED. These rulings moot several pending procedural motions, which are DENIED as

stated at the conclusion of this Order.

I.      Plaintiff’s Rule 56(d) Request

        Plaintiff’s lawsuit, which he is pursuing pro se, alleges that he was discriminated against

on the basis of age and unlawfully terminated by the Treasury Department, where he worked as a

senior information technology specialist from 2010 to 2011. Dkt. 1. Plaintiff has moved for

leave to file an amended complaint that alleges age discrimination; “violation of Department and
Federal” rules in connection with Plaintiff’s termination; retaliation; and harassment. Dkt. 13-3

¶ 90. Defendant moved to dismiss under Rule 12 and for summary judgment under Rule 56.

Dkt. 20. That motion attaches a statement of undisputed facts (Dkt. 20-12) and ten evidentiary

exhibits. According to Defendant’s representations at the February 20, 2015 status conference,

the Court can resolve all but one of the defenses raised in the dispositive motion on the

pleadings; at this juncture, Defendant seeks summary judgment only on Plaintiff’s age

discrimination claim.

       Pursuant to the scheduling order entered by Judge Cooper on November 19, 2014,

discovery began on December 12, 2014, and the close of discovery was scheduled for May 18,

2015. Plaintiff propounded discovery requests during this period; however, rather than respond

to those requests, Defendant moved to vacate the scheduling order and for a stay discovery

pending resolution of the dispositive motion. See Dkt. 16; Dkt. 27. In light of the fact that

Defendant sought partial summary judgment, the Court provided Plaintiff with the opportunity to

file an affidavit documenting any need for discovery in order to respond to Defendant’s

dispositive motion. See Feb. 20, 2015 Minute Order. It also stayed discovery until Plaintiff’s

request pursuant to Rule 56(d) was adjudicated.

       The parties have completed briefing on Plaintiff’s request pursuant to Rule 56(d), and the

Court will grant the request. As the Court of Appeals for this Circuit has stated, a “motion

requesting time for additional discovery [under Rule 56(d)] should be granted ‘almost as a matter

of course unless the non-moving party has not diligently pursued discovery of the evidence.’”

Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012) (quoting Berkeley v. Home

Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995)). This is because “summary judgment is

premature unless all parties have ‘had a full opportunity to conduct discovery.’” Convertino, 684

F.3d at 99 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). Here, by
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moving for summary judgment on at least one of Plaintiff’s claims and attaching evidence

concerning Plaintiff’s job performance and the process through which he was terminated,

Defendant has put a broad range of factual questions in issue. See Dkt. 20 at 20-21 (arguing that

Plaintiff was terminated because he “would not acknowledge his shortcomings” and did not

“believe[] that it was necessary to make changes in his approach to his job at his and his co-

workers,” and citing instances of allegedly unprofessional conduct). It would be unfair to require

Plaintiff to oppose Defendant’s summary judgment motion without any opportunity for

discovery. Had Defendant responded to Plaintiff’s discovery requests when they were first

propounded, moreover, additional time to prepare Plaintiff’s response to the summary judgment

motion may not have been necessary.

       Defendant’s critiques of Plaintiff’s request for relief under Rule 56(d) do not justify

denial of an opportunity to conduct discovery. Defendant asserts that Plaintiff has failed to

“identify the specific discovery responses he requires in order to respond” to Defendant’s

summary judgment motion. Dkt. 37 at 2. Although Plaintiff’s submission may not satisfy the

standards of clarity and precision to which represented parties are normally held, the Court

concludes that he has reasonably identified factual issues on which discovery may aid his effort

to withstand summary judgment. For example, Plaintiff appears to seek some information to

clarify which employees at the Treasury Department had supervisory authority over Plaintiff at

different points during his tenure there, as well an information relating to “performance appraisal

reports” that may bear on the propriety of his termination. Dkt. 34-1 at 3-4. 1 And Plaintiff

attached to his Rule 56(d) declaration the discovery requests he has already propounded, which


1
  Even if Plaintiff had not satisfied the formal requirements for relief under Rule 56(d), it would
be within the Court’s discretion to extend his time to respond to the motion for summary
judgment as an exercise of the district court’s “power to control its own docket.” Clinton v.
Jones, 520 U.S. 681, 707 (1997).
                                                  3
specifically identify at least some of the discovery he will seek. See Dkt. 34, Exs. 5-13.

       Although Rule 56(d) itself does not limit the scope of discovery, under some

circumstances it is appropriate to stay discovery on claims that a defendant has moved to dismiss

under Rule 12, see, e.g., Chavous v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 201

F.R.D. 1, 2 (D.D.C. 2001), or to permit only limited discovery targeted at the specific facts that

are material to the motion for summary judgment, see, e.g., U.S. ex rel. Folliard v. Gov’t

Acquisitions, Inc., 880 F. Supp. 2d 36, 47 (D.D.C. 2012) (granting relief under Rule 56(d) in part

and authorizing “focused discovery” on issue relevant to summary judgment motion). Here,

Defendant has moved to dismiss all of Plaintiff’s claims other than his age discrimination count,

and the Court has therefore considered whether limiting the scope of discovery to information

relevant to that count would be appropriate. It concludes that no limitation on the scope of

discovery would serve the interest of efficiency, for three reasons. First, the subject matter of

Plaintiff’s claims overlaps significantly—it is unlikely that there is a great deal of discovery that

would be inappropriate if the scope of discovery were limited by the Court to issues potentially

raised by Defendant’s motion for summary judgment. Second, and relatedly, limiting the scope

of discovery now would create the potential for duplicative discovery should Plaintiff’s

additional claims survive the motion to dismiss. Finally, the Court does not anticipate that full

discovery in this case will be especially substantial. In particular, the Court finds it is

appropriate to set a presumptive limit to the number of depositions to five (5) per party. Any

party that wishes to conduct depositions in excess of that limit shall meet and confer with the

opposing party and, if they are unable to agree, schedule a conference call with the Court

pursuant to the procedure set out in the Court’s March 23, 2015 Minute Order. The parties might

also discuss whether depositions taken in the administrative proceeding may be used in this case,

thus obviating the need for duplicative discovery.
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       The Court will therefore lift the current stay of discovery in this Order. As a result, both

Plaintiff and Defendant will be free to propound and entitled to responses to discovery requests.

Of course, Defendant’s responses to the requests Plaintiff has already propounded may raise

legitimate objections to some or all of those requests, in which case the parties must meet and

confer in an effort to resolve any disagreements in good faith. 2

II.    Plaintiff’s Motion for Leave to Amend

       Plaintiff filed a motion for leave to amend his complaint on November 25, 2014. Dkt. 13.

Defendant consolidated his opposition to the motion for leave to amend with his dispositive

motion. See Dkt. 20 at 11. Under Rule 15, “the grant or denial of an opportunity to amend is

within the discretion of the District Court,” but “leave to amend ‘shall be freely given when

justice so requires.’” Foman v. Davis, 371 U.S. 178, 182 (1962) (quoting Fed. R. Civ. P. 15).

Here, because Defendant’s dispositive motion is combined with his opposition to Plaintiff’s

motion for leave to amend and seeks dismissal of claims in the proposed amended complaint as

though it has already been filed, the Court will grant leave to amend and “afford[] Plaintiff an

opportunity to test his claim[s] on the merits.” Id.; see Dkt. 20 at 5 (seeking dismissal “under

Fed. R. Civ. P. 12(b)(1) and 12(b)(6)”). The Court concludes that addressing these merits

arguments in a single order resolving Defendant’s dispositive motion will promote the efficient

and orderly management of this litigation. Therefore, without expressing an opinion on the

defenses raised in the dispositive motion, the Court will grant the motion for leave to amend.

III.   Conclusion

       For these reasons, Plaintiff’s request pursuant to Federal Rule of Civil Procedure 56(d)

and motion for leave to amend are GRANTED, and Plaintiff’s amended complaint (Dkt. 13-3) is


2
 The parties shall address any discovery disputes according to the procedures set out in the
Court’s March 23, 2015 Minute Order.
                                               5
deemed FILED. The pending stay of discovery is lifted. Plaintiff’s time to respond to

Defendant’s dispositive motion is extended to July 16, 2015. Defendant shall file his reply in

support of the dispositive motion on or before July 30, 2015. All fact discovery shall conclude

on or before July 16, 2015. In light of these rulings, Defendant’s motion to vacate scheduling

order (Dkt. 16) and motion for extension of time to respond to Plaintiff’s discovery (Dkt. 27) are

DENIED. Plaintiff’s motion for extension of time to respond to Defendant’s dispositive motion

(Dkt. 23) is DENIED as moot. Defendant’s motion for extension of time to respond to

Plaintiff’s motion for leave to amend (Dkt. 15) is DENIED as moot. Plaintiff’s motion for leave

to file sur-replies regarding the motion for an extension of time to respond to Plaintiff’s motion

for leave to amend and the motion for stay of discovery (Dkt. 22) is DENIED as moot.



SO ORDERED.
                                                      /s/ Randolph D. Moss
                                                      RANDOLPH D. MOSS
                                                      United States District Judge

Date: April 17, 2015




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