PRESTON H. COLBY, APPELLANT,
v.
STEVEN ELLIS, WALTER HORNBERGER, ROBERT HOLSTON, AND SPENCER SLATE, APPELLEES
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Preston Colby, a scuba diving expert who testified in a 1982 wrongful death case, sued fellow divers and dive shop operators for conspiracy and RICO violations, alleging retaliation for his testimony. The trial court granted summary judgment against Colby after three years of discovery failed to uncover evidence of the alleged conspiracy, and the appellate court affirmed, holding it was proper to curtail discovery when none was likely to produce material facts.
The trial court properly granted summary judgment. While it is generally premature to grant summary judgment when discovery is incomplete and pending, a party does not have an unlimited right to discovery, and when the record shows further discovery is not likely to produce a genuine issue of material fact, discovery may be ended. Here, after three years of discovery, Colby had failed to uncover evidence of any conspiracy, making continued discovery unnecessary.
[1] A trial court may grant summary judgment even if discovery is not fully completed if further discovery is not needed to develop significant aspects of the case and is unl…
[2] A party does not possess an unlimited right to discovery prior to a hearing on a motion for summary judgment.
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Join FLexlaw to unlock all legal intelligence“As a general rule, it is premature to grant a motion for summary judgment where the opposing party has not completed its discovery and there are discovery motions pending before the court.”
Establishes the general rule protecting a party's discovery rights before summary judgment
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Join FLexlaw to unlock all legal intelligenceIn 1982, Colby testified as a scuba diving expert for the plaintiff in a wrongful death action. The plaintiff's verdict concerned dive shop operators …
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PATTERSON, Judge.
In 1982 the appellant testified as a scuba diving expert on behalf of the plaintiff in a wrongful death action. The verdict rendered in favor of the plaintiff became of grave concern to dive shop operators in the Florida Keys and other members of the scuba diving industry. Appellant perceived a conspiracy on the part of the scuba diving community to retaliate against him for the expert opinion he had rendered. As a result, he instituted suit against these appellees and others charging conspiracy, tortious interference with a business relationship, and a violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act.
If the alleged conspiracy existed, extensive discovery over a period of three years failed to bear it out, and on March 31, 1989, the lower court granted final summary judgment in favor of these appellees. This appeal is directed to various procedural errors in the court below but does not challenge the summary judgment on its merits. We affirm the judgment of the lower court and find it appropriate to address one of the appellant’s points on appeal — the propriety of granting a summary judgment before the completion of pending discovery.
The scheduled cutoff date for discovery was March 13, 1989. The appellees served the motions for summary judgment on February 1 and February 2, with a scheduled hearing date of February 23, 1989. Appellant immediately set the depositions of appellees Slate and Holston to be taken prior to that date. Slate was granted a protective order on the basis that he had been previously deposed as a witness. The granting of that protective order has not been raised as error in this appeal. Hol-ston appeared and was deposed; however, the deposition was not transcribed prior to the hearing. We have reviewed the deposition and hold that it raises no material issue of fact which could have altered the outcome of the February 23 hearing. Appellant also alludes to an unanswered request to produce, but our search of the record has failed to reveal it.
As a general rule, it is premature to grant a motion for summary judgment where the opposing party has not completed its discovery and there are discovery motions pending before the court. See Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987); A & B Pipe and Supply Co. v. Turnberry Towers Corp., 500 So. 2d 261 (Fla. 3d DCA 1986); DeRosa v. Shands Teaching Hospital and Clinic, Inc., 468 So. 2d 415 (Fla. 1st DCA 1985). There comes a time, however, when discovery should end.
A party does not have an unlimited right to discovery prior to a hearing on a motion for summary judgment.
When the record becomes clear enough to disclose that further discovery is not needed to develop significant aspects of the case and that such discovery is not likely to produce a genuine issue of material fact, discovery should be ended.
Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F. 2d 1486, 1506 (11th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986) (citations omitted). In Amey, the court held that the trial court did not abuse its discretion in curtailing discovery. The trial court, which had stayed all discovery except previously noticed depositions, heard and granted the defendants’ motions for summary judgment. Eighteen months after filing its complaint, Amey, Inc. had failed to come up with evidence of a conspiracy agreement in its antitrust action.
Similarly, during three years of litigation the appellant has been unable to support his allegations of conspiracy. The time has come to end this litigation.
Affirmed.
RYDER, A.C.J., and THREADGILL, J., concur.
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Brandauer v. Publix Super Mkts., Inc., 657 So. 2d 932 (Fla. 2d DCA 1995)…certain that no genuine issue of material fact exists. Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987). As a general rule, a court should not enter summary judgment when the opposing party has not completed discovery. Singer; Colby v. Ellis, 562 So. 2d 356 (Fla. 2d DCA 1990). Here, the court granted summary judgment in favor of the defendant approximately six months after the plaintiff filed suit. Mr. Brandauer had not yet deposed any representative of the corporate defendant. While we reiterate that…
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Isabelle Kimball v. Publix Super Mkts., Inc., 901 So. 2d 293 (Fla. 2d DCA 2005)…ary judgment must not be entered.” Villages at Mango Key Homeowners Ass’n, Inc. v. Hunter Dev., Inc., 699 So. 2d 337, 338 (Fla. 5th DCA 1997). Thus, it is reversible error to enter summary judgment when relevant discovery is pending. Colby v. Ellis, 562 So. 2d 356 (Fla. 2d DCA 1990); Abbate v. Publix Super Mkts., Inc., 632 So. 2d 1141 (Fla. 4th DCA 1994) (reversing summary judgment in personal injury action when interrogatory requesting names and contact information of employees working at time of incident ha…
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Al Crespo v. Fla. Ent. Direct Support Org., Inc., 674 So. 2d 154 (Fla. 3d DCA 1996)…discretion to deny a continuance of a summary judgment hearing where the outstanding discovery items are immaterial to the dispositive issues in the case. See Amjad Munim M.D., P.A., v. Azar, 648 So. 2d 145, 151 (Fla. 4th DCA 1994); Colby v. Ellis, 562 So. 2d 356, 357 (Fla. 2d DCA 1990). Turning to the merits, we conclude that the summary judgment is correct. See Tolar v. School Board of Liberty County, 398 So. 2d 427 (Fla.1981); Bassett v. Braddock, 262 So. 2d 425 (Fla.1972); Monroe County v. Pigeon Key Hi…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486 (11th Cir. 1985)
- Theresa Singer Ad Litem for Ann Doe v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987)
- Cargill, Inc. v. Monfort of Colo., Inc., 475 U.S. 1107 (U.S. 1986)
- Pfeil v. Rogers, 475 U.S. 1107 (U.S. 1986)
- A & B Pipe & Supply Co. v. Turnberry Towers Corp. & Turnberry Corp., 500 So. 2d 261 (Fla. 3d DCA 1986)
- Richard E. Derosa & Kerry C. Derosa v. Shands Teaching Hosp. & Clinic, Inc., 468 So. 2d 415 (Fla. 1st DCA 1985)