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Kessey v. Frontier Lodge3/1/2002
cts 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 Kessey's 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 Boulder's motion several days later. It does not appear that Kessey's 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. In that case no discovery had been undertaken, and there were indications that plaintiff's counsel had done little or nothing to advance plaintiff's case. Here, however, other aspects of the case were very actively litigated, effectively delaying discovery, before Boulder moved for summary judgment, and Kessey's 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 Kessey's attorney was sufficient to require a continuance under Rule 56(f), and because there was no compelling demonstration of lack of diligence on Kessey's 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 Kessey's 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. Morrison's Affidavit
Kessey also argues that it was error to grant summary judgment to Frontier because, he alleges, Morrison's 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.
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