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Kessey v. Frontier Lodge, Inc. (03/01/2002) sp-5541
Kessey v. Frontier Lodge, Inc. (03/01/2002) sp-5541
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GABRIEL KESSEY, )
) Supreme Court No. S-9724
Appellant, )
) Superior Court No.
v. ) 4FA-99-1181 CI
)
FRONTIER LODGE, INC., d/b/a ) O P I N I O N
Frontier Lodge, and BOULDER )
INVESTMENTS, INC., d/b/a ) [No. 5541 - March 1, 2002]
Frontier Club; WILLIAM STEWART, )
DARRIN LEMONS, SUSAN )
BLACKWELL, RICHARD LEMONS, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Ralph R. Beistline, Judge.
Appearances: Michael W. Flanigan, Walther &
Flanigan, Anchorage, for Appellant. Gary
Zipkin and Gregory G. Silvey, Guess & Rudd
P.C., Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Gabriel Kessey sued Frontier Lodge and others alleging
that they negligently served alcohol to an intoxicated driver who
later drove his truck into a car occupied by Kessey. Frontier
Lodge moved for summary judgment, supporting its motion with
affidavits from its bartender and the driver. Despite Kessey's
Alaska Civil Rule 56(f) request for a thirty-day continuance to
depose the bartender and the driver, the superior court granted
summary judgment against Kessey. We reverse, because it was an
abuse of discretion not to grant Kesseys continuance request.
II. FACTS AND PROCEEDINGS
Gabriel Kessey was injured in May 1997 when Scott
Morrison drove his truck into a car occupied by Kessey. Morrison
was intoxicated. Kessey sued Frontier Lodge, Inc., Boulder
Investments, Inc. (doing business as the Frontier Club), and
others in April 1999 for criminal negligence; his complaint
alleged that Frontiers employees had served alcohol to a visibly
intoxicated Morrison.1
Boulder moved for summary judgment in late March 2000.
Boulder supported its motion with affidavits from Morrison and
Frontier Lodge bartender Tacey Rahoi. Morrison stated in his
affidavit that [Morrison] was never in the Frontier Club . . . on
the evening in question, and that [t]he bar that was in a log-
building structure where [he] was served an alcoholic beverage
after [he] left Reflections was the bar located in the Captain
Bartlett Inn. He stated that he left Reflections between 12:30
a.m. and 1:30 a.m. Rahoi stated that she was the only bartender
at Frontier Lodge that night, that she did not serve Scott
Morrison alcohol that night, and that she sold the last beer of
the night at 11:47 p.m., before the time Morrison claimed he left
Reflections. Frontier Lodge, Inc. joined in Boulders motion.
For convenience, we sometimes refer here to the corporate
defendants Frontier Lodge, Inc. and Boulder Investments, Inc.
collectively as Frontier, and to the establishment as Frontier
Lodge.
The superior court granted Kesseys motion for a ten-day
extension to oppose the summary judgment motion. Kesseys
opposition argued that a transcript attached to the summary
judgment motion created a material fact dispute about whether
Frontier had served Morrison that night, precluding summary
judgment. The transcript was of a Fairbanks Police Department
interview with Morrison the night of the accident. During the
interview, Morrison told Detective Aaron Ring that he had gone to
three bars that night: Reflections, a second bar, and a log-cabin
place. Kessey also relied upon Detective Rings transcribed
comments during the interview in which he suggested to Morrison
that the log building was Frontier Lodge. Kesseys opposition to
the summary judgment motion did not produce any evidence that
contradicted Rahois or Morrisons statements that Morrison was not
at Frontier Lodge on the night of the accident. But Kesseys
opposition requested that he be allowed an additional thirty days
under Alaska Civil Rule 56(f) to take the depositions of
Morrison, Rahoi, Detective Ring, and accident witnesses to
attempt to sort out . . . what were the 2 locations besides the
Captain Bartlett [Inn] where Morrison drank that night. Without
ruling on Kesseys Rule 56(f) request, the superior court granted
summary judgment to Frontier Lodge, Inc. and Boulder and
dismissed Kesseys claim against them in May 2000. The court
later entered Alaska Civil Rule 54(b) final judgments for
Frontier Lodge, Inc. and the Boulder defendants.
Kessey appeals.
III. DISCUSSION
A. Standard of Review
We review for abuse of discretion a decision to deny a
continuance requested under Alaska Civil Rule 56(f).2
B. Kesseys Rule 56(f) Request for a Continuance
Rule 56(f) permits a court to order a continuance if a
party needs time to conduct discovery to oppose a summary
judgment motion:
Should it appear from the affidavits of a
party opposing the motion that the party
cannot for reasons stated present by
affidavit facts essential to justify the
partys opposition, the court may refuse the
application for judgment or may order a
continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had or may make such other
order as is just.[3]
Generally, requests made pursuant to Rule 56(f) should
be freely granted,4 at least when the litigant seeking a Rule
56(f) continuance has ma[d]e it clear to the trial court and the
opposing party that he opposes the summary judgment motion on
this ground,5 and has provided adequate reasons explaining why
[he] cannot produce facts necessary to oppose summary judgment
within the original time frame, and [that he] has not been
dilatory in his use of discovery.6
Kessey argues that it was error not to grant his Rule
56(f) request. In support, Kessey cites the standard for
granting such requests discussed in Munn v. Bristol Bay Housing
Authority7 and Gamble v. Northstore Partnership.8 Although
Kessey offered no affidavits to support his request for a Rule
56(f) continuance, his attorney stated in his memorandum opposing
summary judgment and requesting the continuance that counsel
would liked to have done these depositions earlier, but had been
out of town on vacation when Boulder filed its motion for summary
judgment and had been making hectic trial preparations for a
complex medical malpractice case when he returned.
Frontier seems to argue that Kesseys failure to offer
an affidavit in support of his Rule 56(f) request should prevent
him from seeking the continuance. But we decline to adopt such a
stringent requirement. It would be contrary to Alaska practice,
which requires that Rule 56(f) requests be freely granted.9 It
would also be inconsistent with federal authority governing
interpretation of Federal Rule of Civil Procedure 56(f), upon
which Alaskas rule was modeled. Alaskas mandate that Alaska
Civil Rule 56(f) requests be freely granted corresponds to
recognition that Federal Rule of Civil Procedure 56(f) should be
applied with a spirit of liberality.10
The purpose of subdivision (f) [of Federal
Rule of Civil Procedure 56] is to provide an
additional safeguard against an improvident
or premature grant of summary judgment and
the rule generally has been applied to
achieve that objective. Consistent with this
purpose, courts have stated that technical
rulings have no place under the subdivision,
and that it should be applied with a spirit
of liberality.[11]
Federal authority also instructs courts to take a
substantive approach in deciding whether a party opposing summary
judgment has complied with the requirements of Federal Rule of
Civil Procedure 56(f).12 We agree with this approach.
Frontier also argues that Kessey was dilatory in
conducting discovery and that the superior court was well within
its discretion not to grant him additional time. It notes that
the accident predated the summary judgment motion by nearly three
years. But the facts of this case do not establish a level of
delay that would have justified denying Kesseys continuance
request.13 Kessey filed his complaint in mid-May 1999. Boulder
filed its answer and third-party complaint in late July 1999, and
Frontier Lodge, Inc. filed its answer and third-party complaint
in mid-August 1999. The record reflects extensive motion
practice as preliminary issues were resolved among the numerous
parties before Boulder and Frontier Lodge, Inc. moved for summary
judgment. The record indicates that as of late 1999, five law
firms, apart from Kesseys counsel, had appeared. Boulder served
its summary judgment motion on Kessey by mail on March 28, 2000,
about ten months after Kessey filed suit and eight months after
Boulder filed its answer. Frontier Lodge, Inc. joined in
Boulders motion several days later. It does not appear that
Kesseys counsel had been doing nothing to advance his case before
the defendants moved for summary judgment. The superior court
proceedings generated a four-volume record in the fourteen months
after Kessey filed suit; at least two volumes appear to predate
the summary judgment motions.
The circumstances of this case set it apart from the
case most favorable to Frontier, Brock v. Weaver Bros.14 In that
case no discovery had been undertaken, and there were indications
that plaintiffs counsel had done little or nothing to advance
plaintiffs case. Here, however, other aspects of the case were
very actively litigated, effectively delaying discovery, before
Boulder moved for summary judgment, and Kesseys attorney provided
good reasons why he could not immediately take the depositions of
Morrison and Rahoi after Boulder moved for summary judgment.
Because the showing made by Kesseys attorney was
sufficient to require a continuance under Rule 56(f), and because
there was no compelling demonstration of lack of diligence on
Kesseys part in prosecuting his case, pursuing discovery, or
making efforts to oppose the summary judgment motion, we conclude
that it was an abuse of discretion to grant summary judgment
without first granting Kesseys request for a continuance. The
only effective way for Kessey to test and rebut the fact
assertions made in the Rahoi and Morrison affidavits was to
depose these witnesses. In deposing Morrison, Kessey might have
sought to obtain the name of the second bar Morrison told police
he had visited after leaving Reflections and before arriving at
what was apparently the Captain Bartlett Inn. Alaska Civil Rule
56(f) requires that Kessey be given this opportunity.
C. Morrisons Affidavit
Kessey also argues that it was error to grant summary
judgment to Frontier because, he alleges, Morrisons affidavit was
inconsistent with statements Morrison made to the police; Kessey
claims that this inconsistency created credibility disputes and
thus genuine issues of material fact. We need not reach this
contention because we have already concluded that the failure to
grant a Rule 56(f) continuance requires reversal.
IV. CONCLUSION
For these reasons, we REVERSE the summary judgments and
remand for further proceedings consistent with this opinion.
_______________________________
1 Kesseys complaint also advanced other theories of
liability stemming in part from the ownership structure and
operation of the establishment which allegedly served Morrison.
In his complaint Kessey alleged that Boulder Investments, Inc.
(Boulder) was doing business as Frontier Club at the time of the
accident. Kessey also alleged that Frontier Club is
alternatively known as Frontier Lodge. We refer to this drinking
establishment as Frontier Lodge throughout. Kessey also alleged
that Boulders corporate officers and directors Darrin Lemons,
Susan Blackwell, and Richard Lemons were liable because Boulder
failed to procure liability insurance. Kesseys complaint also
alleged that Frontier Lodge, Inc. was liable directly by and
through its employee and agents or indirectly through its agent,
servant or licensee. Kessey argues that Frontier Lodge, Inc.
held the liquor license for Frontier Lodge at the time of the
accident and permitted Boulder to operate a liquor dispensary
business without the proper transfer of the liquor license.
Again, Kessey alleged that Frontier Lodge, Inc.s officers and
directors specifically William Stewart were liable because
Frontier Lodge, Inc. failed to procure liability insurance. The
superior court dismissed Kesseys claim of failure to obtain
liability insurance for failure to state a cause of action under
Alaska Civil Rule 12(b)(6). Kesseys complaint also named other
defendants, including persons associated with Reflections, a bar
which also allegedly served Morrison that night. This appeal
does not address claims regarding the Reflections defendants.
2 Munn v. Bristol Bay Hous. Auth., 777 P.2d 188, 192
(Alaska 1989) (citation omitted).
3 Alaska R. Civ. P. 56(f).
4 Jennings v. State, 566 P.2d 1304, 1313 (Alaska 1977).
5 Id. at 1313 (affirming superior courts grant of summary
judgment against plaintiff in wrongful death action, where
plaintiff not only failed to submit affidavits in her opposition
to summary judgment, but also failed to mention Rule 56(f)).
6 Gamble v. Northstore Pship, 907 P.2d 477, 485 (Alaska
1995); see also Braun v. Alaska Commercial Fishing & Agric. Bank,
816 P.2d 140, 145 (Alaska 1991) (affirming denial of Rule 56(f)
request where party was on notice of affirmative defense and was
dilatory in not conducting discovery on that issue).
7 777 P.2d 188 (Alaska 1989).
8 907 P.2d 477, 485-86 (Alaska 1995) (reversing grant of
summary judgment where plaintiff opposing motion had not filed
affidavit requesting continuance but had otherwise clearly stated
his opposition, and concluding that plaintiffs submission of
affidavit of plaintiffs counsel which did not expressly mention
Rule 56(f), but which clearly set forth the [plaintiffs] desire
and justification to undertake additional discovery . . .
satisfied the requirement that a party seeking Rule 56(f) relief
must make an unambiguous request ).
9 Jennings, 566 P.2d at 1313.
10 10B Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure: Civil 2740, at 402-03 (3d
ed. 1998).
11 Id.
12 E.g., Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1146
(5th Cir. 1973) (vacating summary judgment for defendant in
antitrust action where plaintiffs counsel informed court in
writing that he could not show interstate sales to support
subject matter jurisdiction without further discovery, and
requested delay until he could conduct discovery, but filed no
Rule 56(f) affidavit. The court stated that the written
representation by [plaintiffs] lawyer, an officer of the court,
is in the spirit of Rule 56(f) . . . and that [f]orm is not to be
exalted over fair procedures); contra Radich v. Goode, 886 F.2d
1391, 1394 (3d Cir. 1989) (holding that district courts grant of
summary judgment for defendant in trespass action was not
premature where plaintiffs attorney had claimed in his memorandum
in opposition to summary judgment that unanswered interrogatories
required continuance of discovery period, but where no Rule 56(f)
affidavit had been filed by plaintiff).
13 One case Frontier cites supports Kesseys position here.
See Parson v. Marathon Oil Co., 960 P.2d 615, 618-20 (Alaska
1998) (reversing denial of Rule 56(f) request, even though it was
not made until after summary judgment had been granted).
14 640 P.2d 833 (Alaska 1982).
