United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
D. BATES United States District Judge
the Court is  defendant City Power Marketing's Rule
56(d) motion for discovery. For the following reasons, City
Power's motion for discovery is granted in part and
denied in part.
Court's August 10, 2016 memorandum opinion discusses at
length the complex background of this case, including the
workings of the energy markets at issue and the alleged
manipulative trades made by City Power Marketing.
See Aug. 10, 2016 Mem. Op. [ECF No. 25] at 1-16.
Rather than repeat that discussion here, the Court will
largely assume readers' familiarity with this case and
refer them to the Court's previous opinion if a more
detailed discussion about the facts and regulatory background
is needed. See id. But to sum up this case, the
Federal Energy Regulatory Commission (“FERC”)
brought an administrative action against City Power and its
founder Stephen Tsingas (collectively, “City
Power”), a virtual trader in the wholesale electricity
market, for conducting allegedly manipulative trades in
violation of the Commission's Anti-Manipulation Rule, 18
C.F.R. § 1c.2. FERC ultimately found that City Power had
violated the Anti-Manipulation Rule by conducting trades
disguised as arbitrage transactions, that were in fact
conducted only to collect marginal surplus loss allocation
(MLSA) payments. City Power Mktg., LLC, 152 FERC
¶ 61, 012 (“Penalty Assessment Order”) at
¶ 6. FERC also found that City Power violated
Market Behavior Rule 3, 18 C.F.R. § 35.41(b), which
requires truthful communications with the Commission, because
City Power failed to reveal the existence of certain archived
instant messages during the course of FERC's
investigations into the alleged manipulative trades.
Id. at ¶ 9. FERC assessed a $15 million penalty
against City Power,  id. at ¶ 1, 257, and when
City Power did not pay, FERC filed this action seeking an
order affirming the penalty. See Compl. [ECF No. 1].
this Court denied City Power's motion to dismiss this
action in its previous opinion, FERC filed a motion for
summary judgment [ECF No. 30]. In response, City Power filed
a motion under Federal Rule of Civil Procedure 56(d), seeking
discovery before the summary judgment motion is adjudicated.
See Rule 56(d) Mot. [ECF No. 36]. City Power argues
that summary judgment is premature because it has not yet had
the opportunity to conduct discovery; FERC counters,
essentially, that City Power already had the opportunity to
present evidence during the administrative proceeding before
the Commission, and that no discovery is necessary because
FERC has sufficiently proven its case.
Rule of Civil Procedure 56(d) provides:
nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition [to a motion for summary judgment],
the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). Thus, Rule 56(d) “establishes a
mechanism for nonmovants who lack the facts they need to seek
an opportunity to gather more information before responding
to a motion for summary judgment.” Grimes v. Dist.
of Columbia, 794 F.3d 83, 92 (D.C. Cir. 2015). The
decision whether to grant or deny a motion under Rule 56(d)
lies within the district court's discretion.
Pardo-Kronemann v. Donovan, 601 F.3d 599, 611-12
(D.C. Cir. 2010). Typically, however, “summary judgment
is premature unless all parties have had a full opportunity
to conduct discovery.” Convertino v. U.S. Dep't
of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012) (internal
quotation marks omitted). Accordingly, “[a Rule 56(d)]
motion requesting additional time for discovery should be
granted almost as a matter of course unless the non-moving
party has not diligently pursued discovery of the
evidence.” Id. (internal quotation marks
being said, the party seeking relief, in this case City
Power, still bears the burden of making the appropriate
showing that discovery is needed. U.S. ex rel. Folliard
v. Gov't Acquisitions, Inc., 764 F.3d 19, 26-27
(D.C. Cir. 2014). In order to obtain relief under Rule 56(d),
a party must submit an affidavit or declaration that
satisfies three criteria. The declaration must: (1)
“outline the particular facts [the party] intends to
discover and why those facts are necessary to the
litigation”; (2) explain why the party has not been
able to produce those facts; and (3) demonstrate that the
information sought is, in fact, discoverable.
Convertino, 684 F.3d at 99-100. Boilerplate language
or vague assertions will not satisfy this standard. See
Folliard, 764 F.3d at 29; Jeffries v. Lynch,
-F.Supp.3d-, 2016 WL 6783196, at *8 (D.D.C. Nov. 15, 2016).
there is no dispute that no discovery has taken place since
FERC filed this suit. In order to properly contest FERC's
motion for summary judgment, City Power claims that it needs
discovery with respect to both the market manipulation claim
and the market behavior claim, as well as regarding
FERC's jurisdiction over City Power's trades. FERC
argues, however, that discovery is unnecessary because City
Power was allowed to present evidence during the
administrative proceeding that resulted in the penalty
assessment, and because FERC itself conducted ...