Chris Langer v. Encantado II, LLC

FILED
NOT FOR PUBLICATION
FEB 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRIS LANGER, No. 15-55587

Plaintiff-Appellant, D.C. No.
3:14-cv-02281-MMA-JLB
v.

ENCANTADO II, LLC, a California MEMORANDUM*
Limited Liability Company; CONTENTO
INCORPORATED, DBA Busy Bee’s
Bagel Bakery, a California Corporation;
DOES, 1-10,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding

Submitted February 6, 2017**
Pasadena, California

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Chris Langer appeals the district court’s dismissal, on summary judgment, of

his claims under the Americans with Disabilities Act (ADA) and various state

laws. We review for abuse of discretion the district court’s decision declining to

continue the motion under Federal Rule of Civil Procedure 56(d), see U.S. Cellular

Inv. Co. of L.A. v. GTE Mobilnet, Inc., 281 F.3d 929, 934 (9th Cir. 2002), and now

affirm.

1. Langer claims that the district court abused its discretion in refusing to

continue the summary judgment motion until after some period of formal

discovery. We disagree. Rule 56(d) “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). “To prevail under this Rule, parties opposing a motion for summary

judgment must make ‘(a) a timely application which (b) specifically identifies (c)

relevant information, (d) where there is some basis for believing that the

information sought actually exists.’” Emp’rs Teamsters Local Nos. 175 & 505

Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004) (quoting

VISA Int’l Serv. Ass’n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir.

1986)). The defendants submitted evidence demonstrating that they immediately

remedied all alleged ADA violations at the Busy Bee Bakery. Although Langer

2
argues on appeal that he needed expert discovery to measure the slope of the

handicap-accessible parking space, he did not raise this argument before the district

court. Langer failed to meet his burden under Rule 56(d) to specifically identify

relevant information that he sought through discovery.

2. Langer also asserts that the district court’s ruling deprived him of his

“right” to determine whether some other portions of defendants’ facility—those he

had not yet inspected—violated the ADA. We remain unpersuaded. Langer did

not offer any evidence nor allege any facts to suggest that there are additional ADA

violations at the Busy Bee Bakery. Our decision in Doran v. 7-Eleven, Inc., 524

F.3d 1034 (9th Cir. 2008), does not stand for the proposition that Langer was

entitled to discovery on the facts of this case.

AFFIRMED.