Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bryant v. Woodall

United States District Court, M.D. North Carolina

April 7, 2017

AMY BRYANT, M.D., et al., Plaintiffs,
JIM WOODALL, et al., Defendants.


          L. Patrick Auld United States Magistrate Judge.

         Defendants have filed, pursuant to Federal Rule of Civil Procedure 56(d), a Verified Motion for an Order Deferring Any Further Briefing on and Postponing Any Hearing or Decision on Plaintiffs' Motion for Summary Judgment until Defendants Have Had an Opportunity to Conduct Limited, Expedited Discovery and to Gather Documents and Evidence Necessary to Allow Them to Respond to Plaintiffs' Summary Judgment Motion. (Docket Entry 21 (“Rule 56(d) Motion”).) For the reasons that follow, the Court will grant Defendants' Rule 56(d) Motion.


         By statute, North Carolina generally makes it a crime to perform an abortion, see N.C. Gen. Stat. §§ 14-44, 14-45, but nonetheless recognizes the legality of all abortions:

         (1) “during the first 20 weeks of a woman's pregnancy, . . . when the procedure is performed by a qualified physician licensed to practice medicine in North Carolina in a hospital or clinic certified by the Department of Health and Human Services to be a suitable facility for the performance of abortions, ” N.C. Gen. Stat. § 14-45.1(a) (emphasis added); and

         (2) “after the twentieth week of a woman's pregnancy, . . . when the procedure is performed by a qualified physician licensed to practice medicine in North Carolina in a hospital licensed by the Department of Health and Human Services, if there is a medical emergency as defined by [ N.C. Gen. Stat. §] 90-21.81(5), ” N.C. Gen. Stat. § 14-45.1(b) (emphasis added); see also N.C. Gen. Stat. § 90-21.81(5) (“Medical emergency.--A condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions. For purposes of this definition, no condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.”).

         Plaintiffs, three North Carolina-licensed medical doctors and a nonprofit corporation with health centers in North Carolina (see Docket Entry 1, ¶¶ 7-10), have challenged this statutory scheme, in an action against Defendants, two North Carolina District Attorneys, the President of the North Carolina Medical Board, and the Secretary of the North Carolina Department of Health and Human Services (see id., ¶¶ 12-15). Plaintiffs' Complaint alleges that, “[i]n a normally progressing pregnancy, viability typically does not occur before approximately 24 weeks from the woman's last menstrual period.” (Id., ¶ 26 (emphasis added); see also Docket Entry 13-1, ¶¶ 6 (“The opinions in this declaration are [Plaintiff Amy Bryant's] expert opinions.”), 15 (“Pregnancy is measured from the first day of a woman's last menstrual period, also referred to as ‘lmp.' . . . Viability generally occurs at approximately 24 weeks lmp.”), 16 (opining that, by restricting abortions after 20 weeks of pregnancy except for medical emergencies, North Carlina law “prohibits abortion at a point in pregnancy when no fetus is viable”). The Complaint seeks “a declaratory judgment that [North Carolina's above-quoted abortion] statutes . . . are unconstitutional as applied to previability abortions, under the Fourteenth Amendment to the United States Constitution” (Docket Entry 1, ¶ 55 (emphasis added)), as well as “a permanent injunction restraining Defendants, their employees, agents, and successors from enforcing in any way state law limiting Plaintiffs' ability to provide previability abortions” (id., ¶ 56 (emphasis added)) and an award of their “reasonable costs and attorney's fees” (id., ¶ 57).

         Defendants accepted service of process on December 7, 2016 (see Docket Entry 16 at 1), resulting in the initial establishment of a responsive pleading deadline of December 28, 2016, Fed.R.Civ.P. 12(a)(1)(A)(i). Two weeks before that deadline, Plaintiffs moved for summary judgment (Docket Entry 13), which (in the normal course) would have required Defendants to file their summary judgment response by January 13, 2017, M.D. N.C. LR 7.3(f). At Defendants' request and with Plaintiffs' consent (see Docket Entry 19), the Court extended Defendants' responsive pleading deadline to January 13, 2017, and their summary judgment response deadline to January 27, 2017 (Text Order dated Dec. 27, 2016).

         Thereafter, Defendants timely answered (Docket Entry 20) and timely filed their Rule 56(d) Motion requesting an extension of their summary judgment response deadline until 30 days after a 60-day discovery period (see Docket Entry 21 at 1-2). Defendants' Rule 56(d) Motion indicates that they wish to conduct discovery on (1) fetal viability beginning at 20 weeks, (2) fetal susceptibility to pain, (3) increased health risks for women who have abortions after 20 weeks, and (4) Plaintiffs' standing to bring this action. (See id. at 7, 9 (stating that Defendants sought Plaintiffs' consent “to a brief, sixty-day period of discovery limited to” the foregoing items (1), (2), and (3)), 10-11 (describing Defendants' interest in pursuing discovery as to “whether [] [P]laintiffs have standing” and providing examples of such discovery).) The Court stayed Defendants' summary judgment response deadline, pending completion of briefing on and final resolution of their Rule 56(d) Motion. (Text Order dated Jan. 26, 2017.) Plaintiffs have responded in opposition to Defendants' Rule 56(d) Motion (Docket Entry 27) and Defendants have replied (Docket Entry 28).[1]


         “As a general proposition, summary judgment is appropriate only after adequate time for discovery.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 280 (4th Cir. 2013) (en banc) (emphasis added) (internal quotation marks omitted) (vacating entry of summary judgment for the plaintiff on its free speech claim). Accordingly, although (absent a contrary local rule or court order) a party may move for summary judgment before discovery closes, see Fed.R.Civ.P. 56(b), “when a party lacks material facts necessary to combat a summary judgment motion, she may file an ‘affidavit or declaration that, for specified reasons, the party cannot present facts essential to justify its opposition, '” McCray v. Maryland Dep't of Transp., Md. Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014) (brackets omitted) (quoting Fed.R.Civ.P. 56(d)) (vacating entry of summary judgment against the plaintiff on her Title VII claim).[2]In particular, where (as here) a party faces a summary judgment motion before any discovery has occurred, the party takes “the proper course when it file[s a verified] Rule 56([d]) [motion], stating that it could not properly oppose summary judgment without a chance to conduct discovery.” Greater Balt. Ctr., 721 F.3d at 281 (ellipsis and internal quotation marks omitted).

         “Further, such motions are broadly favored and should be liberally granted in order to protect non-moving parties from premature summary judgment motions.” McCray, 741 F.3d at 484 (internal quotation marks omitted) (emphasis added); see also In re PHC, Inc. S'holder Litig., 762 F.3d 138, 144 (1st Cir. 2014) (“‘Typically, when the parties have no opportunity for discovery, denying the Rule 56([d]) motion and ruling on a summary judgment motion is likely to be an abuse of discretion.'” (quoting CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008))); Greater Balt. Ctr., 721 F.3d at 280 (“Chief among its errors was the district court's award of summary judgment to the [plaintiff] without allowing the [defendant] any discovery.”); Doe v. Abington Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007) (“District courts usually grant properly filed Rule 56([d]) motions as a matter of course.” (internal quotation marks omitted)); Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003) (“Where, however, a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56([d]) motion fairly freely.”); Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 n.4 (5th Cir. 1992) (“[C]ontinuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course unless the non-moving party has not diligently pursued discovery of the evidence.” (internal quotation marks omitted)).

         Notably, the Center for Reproductive Rights (“CRR”), whose attorneys represent Plaintiff Bryant here (see, e.g., Docket Entry 27 at 15[3]), also participated in the Greater Balt. Ctr. litigation, see Appellants/Cross-Appellees' Brief for the En Banc Court at 1, Greater Balt. Ctr., 721 F.3d 264 (Nos. 11-1111, 11-1185), 2012 WL 3812702, at unnumbered cover page (identifying CRR attorney as counsel for the appellants/cross-appellees). In that appeal, a CRR attorney contended to the United States Court of Appeals for the Fourth Circuit that “the district court's ruling on the merits of [the plaintiff's] motion for partial summary judgment was premature because it came before [the defendants] had the opportunity to conduct any discovery or fully develop expert testimony on key factual issues.” Id. at 45 (emphasis added); see also id. at 45 n.15 (noting that the plaintiff “filed [its] motion for partial summary judgment before the deadline for the [defendants] to respond to the [c]omplaint had expired and, thus, before the opportunity to conduct discovery even arose”). According to the CRR attorney, the defendants in the Greater Balt. Ctr. case “could not test the veracity of [the plaintiff's] factual allegations because the district court denied [the defendants] the opportunity to conduct discovery. . . . This lack of discovery improperly prejudiced the [defendants] and require[d] reversal of the district court's judgment.” Id. at 46.

         Similarly, in prior appellate litigation (conducted even before the issuance of the Fourth Circuit's decisions in McCray and Greater Balt. Ctr., which (as quoted above) strongly counsel district courts to grant relief under Rule 56(d) when no discovery has occurred), the legal arm of the American Civil Liberties Union of North Carolina (“ACLU-NC”) (which represents Plaintiffs in this action (see, e.g., Docket Entry 27 at 14-15)) argued to the Fourth Circuit that “[e]ntry of [s]ummary [j]udgment [a]gainst [its client], [w]ithout [p]ermitting [h]er to [c]onduct [a]ny [d]iscovery, [w]as [i]nappropriate.” Brief of Appellant at 21, Willis v. Town of Marshall, 426 F.3d 251 (4th Cir. 2005) (Nos. 03-2252, 04-1240), 2004 WL 3200530, at *21 (4th Cir. Apr. 12, 2004); see also id. at unnumbered cover page (listing attorney with ACLU-NC as “Counsel for Appellant”). Moreover, in doing so, the ACLU-NC attorney asserted that decisions “allow[ing] summary judgment to be entered in the absence of discovery . . . have arisen predominantly in the context of frivolous litigation such as pro se prisoner cases.” Id. at 24 (emphasis added). Ultimately, in that case (as it later did in McCray and Greater Balt. Ctr.), the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.