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`United States District Court
`Central District of California
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`CHAMBER OF COMMERCE OF THE
`UNITED STATES OF AMERICA et al.,
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`Plaintiffs,
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`v.
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`CALIFORNIA AIR RESOURCES
`BOARD et al.,
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`Defendants.
`
`Case № 2:24-cv-00801-ODW (PVCx)
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`ORDER GRANTING
`DEFENDANTS’ MOTION TO DENY
`OR DEFER PLAINTIFFS’ MOTION
`FOR SUMMARY JUDGMENT AND
`DENYING PLAINITFFS’ MOTION
`FOR SUMMARY JUDGMENT [48]
`[57]
`
`I.
`INTRODUCTION
`Plaintiffs Chamber of Commerce of the United States of America, California
`Chamber of Commerce, American Farm Bureau Federation, Los Angeles County
`Business Federation, Central Valley Business Federation, and Western Growers
`Association bring this action challenging California Senate Bills (“SB” or “SBs”) 253
`and 261 against Defendants Chair of the California Air Resources Board (“CARB”)
`Liane M. Randolph, Executive Officer of CARB Steven S. Cliff, and California
`Attorney General Robert A. Bonta (the “State”) for violation of the First Amendment,
`the Supremacy Clause, and
`the United States Constitution’s
`limitations on
`extraterritorial regulation. (See First Am. Compl. (“FAC”) ¶¶ 92–112, ECF No. 28.)
`Plaintiffs move for summary judgment on their First Amendment claim. (Mem.
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`P. & A. ISO Mot. Summ. J. (“MSJ” or “Motion for Summary Judgment”), ECF
`No. 48-1). The State moves to deny or defer Plaintiffs’ Motion for Summary
`Judgment under Federal Rule of Civil Procedure (“Rule”) 56(d). (Mot. Deny Defer
`MSJ (“Rule 56(d) Mot.” or “Rule 56(d) Motion”), ECF No. 57-1.)1
`For the reasons discussed below, the Court GRANTS the State’s Rule 56(d)
`Motion and DENIES Plaintiffs’ Motion for Summary Judgment.2
`II.
`BACKGROUND
`On October 7, 2023, Governor Gavin Newsom signed SBs 253 and 261 into
`law. (MSJ 2.) SBs 253’s and 261’s obligations are expected to take effect in 2026.
`Cal. Health & Safety Code §§ 38532(c)(1)(A), (F)(ii)–(iii), 38533(b)(1)(A). A brief
`description of each law follows.
`A.
`Senate Bill 253
`SB 253 directs that by January 1, 2025, CARB “shall develop and adopt
`regulations” for “reporting entities”—businesses with total annual revenues over
`$1 billion “that do[] business in California.” Id. §§ 38532(b)(2), (c)(1).3 One of the
`legislation’s sponsors estimates that SB 253 would apply to approximately 5,300
`United States businesses. (Pls. Separate Statement Uncontroverted Facts (“PF”) 27–
`28, ECF No. 48-2.)
`SB 253 requires CARB to develop regulations that require reporting entities to
`annually disclose its Scope 1, Scope 2, and Scope 3 emissions. Cal. Health & Safety
`Code § 38532(c)(1).
`
`
`1 The State also moves to dismiss Plaintiffs’ Supremacy Clause and extraterritorial regulation claims.
`(Mot. Dismiss, ECF No. 38.) The Court will address that motion in a separate order.
`2 Having carefully considered the papers filed in connection with the Motion for Summary Judgment
`and Rule 56(d) Motion, the Court deemed the matter appropriate for decision without oral argument.
`Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
`3 On October 16, 2024, Defendants informed the Court that, on September 27, 2024, Governor
`Newsom signed amendments to SBs 253 and 261 into law. (Not. Amends. SBs 253 & 261, ECF
`No. 72.) The amendments would, among other things, delay CARB’s requirement to adopt SB
`253’s implementing regulations until July 1, 2025. (Id. at 1). Because the amendments do not take
`effect until January 1, 2025, and the amendments do not alter the Court’s analysis in this Order, the
`Court describes SBs 253 and 261 as in effect as of the date of this Order.
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` Scope 1 emissions are “all direct greenhouse gas emissions that stem
`from sources that a reporting entity owns or directly controls, regardless
`of location, including, but not limited to, fuel combustion activities.” Id.
`§ 38532(b)(3).
` Scope 2 emissions are “indirect greenhouse gas emissions from
`consumed electricity, steam, heating, or cooling purchased or acquired by
`a reporting entity, regardless of location.” Id. § 38532(b)(4).
` Scope 3 emissions are “indirect upstream and downstream greenhouse
`gas emissions, other than scope 2 emissions, from sources that the
`reporting entity does not own or directly control and may include, but are
`not limited to, purchased goods and services, business travel, employee
`commutes, and processing and use of sold products.” Id. § 38532(b)(5).
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`SB 253 does not mandate entities to report avoided emissions, or so-called
`“Scope 4 emissions.” (PF 59.) These are “avoided emissions or greenhouse-gas
`reductions from actions taken to compensate for or offset emissions.” (Decl. Bradley
`J. Hamburger Ex. 17 (“Greenhouse Gas Protocol”) 6, ECF Nos. 48-3, 48-20; see
`PF 31, 59.)
`SB 253 requires CARB to ensure that its regulations mandate entities to
`measure and report Scope 3 emissions “in conformance with the Greenhouse Gas
`protocol standards and guidance.” Cal. Health & Safety Code § 38532(c)(1)(A)(ii).
`The law further directs CARB to develop and adopt regulations to “minimize[]
`duplication of effort” by allowing entities “to submit to the emissions reporting
`organization reports prepared to meet other national and international reporting
`requirements.” Id. § 38532(c)(1)(D)(i). CARB must also develop and adopt
`regulations that ensure reporting entities obtain third-party assurances as to the quality
`and accuracy of the reported emissions. Id. § 38532(c)(1)(F). These emissions data
`will be publicly available, and CARB will ensure the creation of a public report on the
`disclosures. Id. §§ 38532(d)(1), (e)(1)(2). SB 253 requires CARB to adopt
`regulations that authorize it to seek administrative penalties for “nonfiling, late filing,
`or other failure to meet the requirements” of the law. Id. § 38532(f)(2)(A).
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`B.
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`Senate Bill 261
`SB 261 applies to any entity with total annual revenues over $500 million “that
`does business in California.” Id. § 38533(a)(4). The California Senate Rules
`Committee analysis estimates that over 10,000 companies would meet this threshold,
`twenty percent of which are publicly traded companies. (PF 48–49.)
`As of January 1, 2026, SB 261 will mandate each applicable entity to biennially
`disclose on its website two categories of climate-related financial risk information,
`defined as information related to “material risk of harm to immediate and long-term
`financial outcomes due to physical and transition risks” to the business, Cal. Health &
`Safety Code § 38533(a)(2)4:
` Its climate-related financial risk, in accordance with the recommended
`framework and disclosures contained
`in
`the Final Report of
`Recommendations of the Task Force on Climate-related Financial
`Disclosures (June 2017), id. § 38533(b)(1)(A)(i); and
` Its measures adopted to reduce and adapt to climate-related financial risk
`disclosed in its biennial report. Id. § 38533(b)(1)(A)(ii).
`SB 261 requires CARB to adopt regulations that authorize it to seek
`administrative penalties—no more than $50,000—for reporting entities that fail to
`publish a report or make an inaccurate one. Id. § 38533(e)(2).
`On January 30, 2024, Plaintiffs filed this lawsuit against the State. (Compl.,
`ECF No. 1.) In its first amended complaint, filed on February 22, 2024, Plaintiffs
`bring four causes of action under 42 U.S.C. § 1983. In Count I, Plaintiffs allege that
`SBs 253 and 261 violate the First Amendment. (FAC ¶¶ 92–99.) In Count II,
`Plaintiffs assert that federal law preempts SBs 253 and 261, which violates the
`Supremacy Clause. (Id. ¶¶ 100–06.) In Count III, Plaintiffs claim that the laws
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`4 The legislation’s full definition of “climate-related financial risk” is as follows: “material risk of
`harm to immediate and long-term financial outcomes due to physical and transition risks, including,
`but not limited to, risks to corporate operations, provision of goods and services, supply chains,
`employee health and safety, capital and financial investments, institutional investments, financial
`standing of loan recipients and borrowers, shareholder value, consumer demand, and financial
`markets and economic health.” Cal. Health & Safety Code § 38533(a)(2).
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`violate the U.S. Constitution’s limits on extraterritorial regulation. (Id. ¶¶ 107–12.)
`Lastly, in Count IV, Plaintiffs seek payment of attorneys’ and expert’ fees. (Id.
`¶¶ 113–15.) As relief, Plaintiffs seek declarations that SBs 253 and 261 are “null,
`void, and with no force or effect,” and an injunction enjoining the State from
`“implementing, applying, or taking any action whatsoever to enforce” SBs 253 and
`261. (FAC, Prayer for Relief ¶ 116.)
`Despite discovery having not yet begun, Plaintiffs now move for summary
`judgment on their First Amendment Claim. (MSJ.) In addition to opposing Plaintiffs’
`Motion for Summary Judgment on the merits, the State separately moves to deny or
`defer the motion under Rule 56(d). (Opp’n MSJ, ECF No. 52; Rule 56(d) Mot.) The
`Motion for Summary Judgment and Rule 56(d) Motion are fully briefed. (MSJ;
`Opp’n MSJ; Reply ISO MSJ, ECF No. 59; Rule 56(d) Mot.; Opp’n Rule 56(d) Mot.,
`ECF No. 60; Reply ISO Rule 56(d) Mot., ECF No. 61.)5
`III.
`LEGAL STANDARD
`A court “shall grant summary judgment if the movant shows that there is no
`genuine dispute as to any material fact and the movant is entitled to judgment as a
`matter of law.” Fed. R. Civ. P. 56(a). A disputed fact is “material” where it might
`affect the outcome of the suit under the governing law, and the dispute is “genuine”
`where “the evidence is such that a reasonable jury could return a verdict for the
`nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
`burden of establishing the absence of a genuine issue of material fact lies with the
`moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
`Once the moving party satisfies its initial burden, the nonmoving party cannot
`simply rest on the pleadings or argue that any disagreement or “metaphysical doubt”
`
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`5 The parties also filed supplemental briefing on the impact of the Ninth Circuit’s recent decisions in
`NetChoice, LLC v. Bonta, 113 F.4th 1101 (9th Cir. 2024), and X Corp. v. Bonta, 116 F.4th 888
`(9th Cir. 2024) on the Motion for Summary Judgment and Rule 56(d) Motion. (See Defs. Sur-Reply
`MSJ, ECF No. 64; Pls. Resp. Sur-Reply, ECF No. 66; Pls. Suppl, Br., ECF No. 69; Defs. Suppl. Br.,
`ECF No. 70.)
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`about a material issue of fact precludes summary judgment. Matsushita Elec. Indus.
`v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must show
`that there are “genuine factual issues that . . . may reasonably be resolved in favor of
`either party.” Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc.,
`818 F.2d 1466, 1468 (9th Cir. 1987) (emphasis omitted) (quoting Anderson, 477 U.S.
`at 250). Courts should grant summary judgment against a party who fails to make a
`sufficient showing on an element essential to her case when she will ultimately bear
`the burden of proof at trial. Celotex, 477 U.S. at 322–23.
`In ruling on summary judgment motions, courts “view the facts and draw
`reasonable inferences in the light most favorable” to the nonmoving party. Scott v.
`Harris, 550 U.S. 372, 378 (2007) (internal quotation marks omitted). Conclusory,
`speculative, or “uncorroborated and self-serving” testimony will not raise genuine
`issues of fact sufficient to defeat summary judgment. Villiarimo v. Aloha Island Air,
`Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); see Thornhill Publ’g Co. v. GTE Corp.,
`594 F.2d 730, 738 (9th Cir. 1979). Moreover, though a court may not weigh
`conflicting evidence or make credibility determinations, there must be more than a
`mere scintilla of contradictory evidence to survive summary judgment. Addisu v.
`Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
`A court may assume that material facts claimed and adequately supported are
`undisputed except to the extent that such material facts are (a) included in the
`opposing party’s responsive statement of disputes and (b) controverted by declaration
`or competent written evidence. C.D. Cal. L.R. 56-4. A court is not obligated to look
`any further in the record for supporting evidence other than what is actually and
`specifically referenced. Id.
`“A party requesting a continuance pursuant to Rule 56(d) must identify by
`affidavit the specific facts that further discovery would reveal, and explain why those
`facts would preclude summary judgment. Sec. & Exch. Comm’n v. Stein, 906 F.3d
`823, 833 (9th Cir. 2018) (internal quotation marks omitted) (quoting Tatum v. City &
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`Cnty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006)). “The facts sought must
`be ‘essential’ to the party’s opposition to summary judgment, and it must be ‘likely’
`that those facts will be discovered during further discovery.” Id. (citation omitted). In
`denying the request, a “district court abuses its discretion only if the party requesting a
`continuance can show that allowing additional discovery would have precluded
`summary judgment.” Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1076 (9th Cir.
`2019).
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`IV.
`DISCUSSION
`The sole claim at issue in the Motion for Summary Judgment and Rule 56(d)
`Motion is Plaintiffs’ facial challenge to SBs 253 and 261 for violation of the First
`Amendment. (See MSJ; Rule 56(d) Mot.)
`A. Whether the First Amendment Applies
`Before analyzing whether SBs 253 and 261 violate the First Amendment, the
`Court must first decide whether the First Amendment even applies.
`While the State devotes most of its briefing to arguing that the laws withstand
`First Amendment scrutiny, the State also asserts that the laws escape First
`Amendment scrutiny because they are “part of a broader regulatory apparatus.”
`(Opp’n MSJ 20 (internal quotation marks omitted).)
`As the Ninth Circuit recently noted, “[i]t is well-established that the First
`Amendment protects ‘the right to refrain from speaking at all’” and “that the forced
`disclosure of information, even purely commercial information, triggers First
`Amendment scrutiny.” NetChoice, LLC v. Bonta, 113 F.4th 1101, 1117 (9th Cir.
`2024) (quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977)). A law’s “primary
`effect . . . is to compel speech, distinguishing it from statutes where the compelled
`speech was plainly incidental to the [law’s] regulation of conduct.” Id. (second
`alteration in original) (internal quotation marks omitted). There can be no dispute that
`the primary effect—and purpose—of SBs 253 and 261 is to compel speech. (See
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`Opp’n MSJ 15–17 (describing California’s interests in SBs 253 and 261).) Therefore,
`the First Amendment applies to SBs 253 and 261.
`B. Whether SBs 253 and 261 Violate the First Amendment
`Plaintiffs bring a First Amendment facial challenge to SBs 253 and 261.
`“[C]ourts usually handle constitutional claims case by case, not en masse.” X Corp. v.
`Bonta, 116 F.4th 888, 898 (9th Cir. 2024) (quoting Moody v. NetChoice, LLC,
`144 S. Ct. 2383, 2397 (2024)). Because facial challenges “often rest on speculation
`about the law’s coverage and its future enforcement” and “threaten to short circuit the
`democratic process,” the Supreme Court “has therefore made facial challenges hard to
`win.” Moody, 144 S. Ct. at 2397 (internal quotation marks omitted).
`In First Amendment cases, the Supreme Court has “lowered th[e] very high
`bar” of a typical facial challenge. X Corp., 116 F.4th at 898 (quoting Moody,
`144 S. Ct. at 2397). “‘[I]f the law’s unconstitutional applications substantially
`outweigh its constitutional ones,’ then a court may sustain a facial challenge to the law
`and strike it down.” Id. (alteration in original) (quoting Moody, 144 S. Ct. at 2397).
`As such, “a First Amendment facial challenge has two parts: first, the courts must
`‘assess the state laws’ scope’; and second, the courts must ‘decide which of the laws’
`applications violate the First Amendment, and . . . measure them against the rest.” Id.
`(alteration in original) (quoting Moody, 144 S. Ct. at 2398). The Supreme Court
`recently admonished that courts cannot treat facial challenges “more like as-applied
`claims than like facial ones.” Moody, 144 S.Ct. at 2398.
`In evaluating whether a regulation violates the First Amendment, courts
`“distinguish between content-based and content-neutral regulations of speech.” Vidal
`v. Elster, 602 U.S. 286, 292 (2024). “Mandating speech that a speaker would not
`otherwise make necessarily alters the content of the speech.” Riley v. Nat’l Fed’n of
`the Blind of N.C., Inc., 487 U.S. 781, 795 (1988). A content-based regulation is
`typically subject to strict scrutiny, or “presumptively unconstitutional and may be
`justified only if the government proves that [it is] narrowly tailored to serve
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`compelling state interests.” Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S.
`755, 766 (2018).
`However, not all content-based regulations are subject to strict scrutiny. “Laws
`regulating commercial speech are generally subject to a lesser standard than strict
`scrutiny.”
` NetChoice, 113 F.4th at 1119; accord X Corp., 116 F.4th at 900.
`“Commercial speech is ‘usually defined as speech that does no more than propose a
`commercial transaction.’” X Corp., 116 F.4th at 900 (quoting United States v. United
`Foods, Inc., 533 U.S. 405, 409 (2001)). But this is “just a starting point.” Id. Courts
`“try to give effect to a common-sense distinction between commercial speech and
`other varieties of speech.” Id. (internal quotation marks omitted). This is a “fact-
`driven” analysis, “due to the inherent difficulty of drawing bright lines that will
`clearly cabin commercial speech in a distinct category.” Id. Given this difficulty, “in
`close cases,” courts consider the three factors outlined by the Supreme Court in Bolger
`v. Youngs Drug Products Corporation, 463 U.S. 60 (1983), to determine if speech is
`commercial. NetChoice, 113 F.4th at 1119. The Bolger factors weigh in favor of
`characterizing speech as commercial where (1) “the speech is an advertisement,”
`(2) “the speech refers to a particular product,” and (3) “the speaker has an economic
`motivation.” Hunt v. City of Los Angeles, 638 F.3d 703, 715 (9th Cir. 2011). While
`these factors are “important guideposts, . . . they are not dispositive.” Ariix, LLC v.
`NutriSearch Corp., 985 F.3d 1107, 1116 (9th Cir. 2021).
` X Corp.,
`Generally, commercial speech receives intermediate scrutiny.
`116 F.4th at 900; NetChoice, 114 F.4th at 1119. In such cases, courts ask, “whether
`the asserted governmental interest is substantial,” “whether the regulation directly
`advances the governmental interest asserted,” and “whether [the law] is not more
`extensive than is necessary to serve that interest.” NetChoice, 114 F.4th at 1119
`(quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.
`556, 566 (1980)). However, there is an exception for commercial speech that is
`“purely factual and uncontroversial,” which is subject to rational basis review.
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`X Corp., 116 F.4th at 900; NetChoice, 114 F.4th at 1119. Under Zauderer v. Office of
`Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), “the
`government may compel truthful disclosure in commercial speech as long as the
`compelled disclosure is ‘reasonably related’ to a substantial governmental interest.”
`CTIA - The Wireless Ass’n v. City of Berkeley, Cal., 928 F.3d 832, 842 (9th Cir. 2019)
`(quoting Zauderer, 471 U.S. at 651).
`Here, Plaintiffs assert that a facial challenge is appropriate. (See MSJ 6; Reply
`ISO MSJ 2; Pls. Suppl. Br 1.) They also argue that strict scrutiny applies because
`neither Central Hudson’s intermediate scrutiny nor Zauderer’s rational basis scrutiny
`applies. (See MSJ 14–19; Reply ISO MSJ 2–7.) Specifically, Plaintiffs contend that
`SBs 253 and 261 do not regulate commercial speech and the regulated speech is not
`purely factual and uncontroversial. (See MSJ 14–19; Reply ISO MSJ 2–7.) In any
`event, Plaintiffs contend that SBs 253 and 261 fail any degree of First Amendment
`scrutiny. (See MSJ 19–20; Reply ISO MSJ 8–10.)
`The State disputes each of these assertions and urges the Court to outright deny
`Plaintiffs’ Motion for Summary Judgment. (See Opp’n MSJ.) Alternatively, the State
`moves to deny or defer Plaintiffs’ Motion for Summary Judgment because no
`discovery has occurred, and it has identified “three issues where, if the Court decides
`they are relevant in resolving the motion,” the State requires discovery. (Rule 56(d)
`Mot. 2.) These issues are the (1) SBs 253’s and 261’s financial and administrative
`burden, (2) controversial nature of the speech SBs 253 and 261 regulate, and
`(3) “existence of out-of-state entities that are covered by SB[s] 253 and 261, but only
`engage in a single transaction within California.” (Id. at 2, 10.) Plaintiffs counter that
`none of this “discovery is material to the merits” of their facial constitutional
`challenge. (Opp’n Rule 56(d) Mot. 2.)
`The Court finds that Plaintiffs’ constitutional challenge does not present “only
`pure questions of law.” (Opp’n Rule 56(d) Mot. 1.) Indeed, Plaintiffs chose to litigate
`this case as a facial challenge, “and that decision comes at a cost.” Moody, 144 S. Ct.
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`at 2397. In the first instance, the Court must “determine what [the law] covers.” Id. at
`2398 (alteration in original). On their face, SBs 253 and 261 appear to apply to all
`companies that meet the relevant revenue thresholds that do “business in California.”
`Cal. Health & Safety Code §§ 38532(b)(2), 38533(a)(4). But the Court must also
`“decide which of the laws’ applications violate the First Amendment,” and “measure
`the constitutional against the unconstitutional applications.” Moody, 144 S. Ct.
`at 2398.
`On the present record—before any discovery has taken place—the Court is
`unable to complete this “fact-driven” task. X Corp., 116 F.4th at 900. For example,
`for purposes of Plaintiffs’ summary judgment motion, Plaintiffs admit that
`California’s legislature “designed” the bills “to, in part, prevent companies from
`making potential misleading statements.” (Pls. Resp. Defs.’ Additional Material Facts
`(“Pls. Resp. DAMF”) 130, ECF No. 59-1.) Plaintiffs further admit that “[m]any
`companies advertise their business as ‘green’ or emissions conscious” and that their
`“own member companies have advertised themselves as adhering to ‘net zero’
`emissions goals.” (Id. ¶¶ 128–29.) Moreover, the purpose of this advertising is to
`“influence . . . consumer behavior.” (Id. ¶ 163.)
`These facts may support that at least two of the three Bolger factors (i.e.,
`advertisement and economic motivation) favor a finding that SBs 253 and 261
`regulate commercial speech and therefore less than strict scrutiny applies. See
`Stutzman v. Armstrong, No. 2:13-CV-00116-MCE-KJN, 2013 WL 4853333, at *18
`(E.D. Cal. Sept. 10, 2013)
`(finding
`two of
`three Bolger
`factors support
`characterization of commercial speech); cf. Dex Media W., Inc. v. City of Seattle,
`696 F.3d 952, 959 (9th Cir. 2012) (not commercial speech where object of regulation
`“does not fulfill two of the three Bolger factors”).
`But they also may not. To determine which level of scrutiny to apply, the Court
`needs a record on whether SBs 253 and 261 regulate a substantial number of
`companies that do not make potentially misleading environmental claims. For
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`example, if ninety-nine percent of the regulated companies have made advertisements
`relevant to SBs 253’s and 261’s required disclosures, that may support a finding that
`SBs 253 and 261 are appropriately tailored to the State’s aims under at least rational
`basis review. This becomes less likely if, for example, a handful of the regulated
`companies make such advertisements.
`Moreover, contrary to Plaintiffs’ contention, it is indeed relevant to SB 253’s
`and 261’s purported overinclusiveness whether there exists a company that “engages
`in a single transaction within the State, wholly unconnected to climate-related risks,”
`and must comply with SBs 253 and 261. (Opp’n Rule 56(d) (quoting MSJ 8–9.)) The
`absence of real-world examples of SB 253’s and 261’s overinclusvieness directly
`impacts whether SB 253 and 261 are appropriately tailored to the State’s aims.
`C. Requirements of Rule 56(d)
`Plaintiffs urge the Court to strike the State’s motion deny or defer Plaintiffs’
`MSJ because its support declaration does not comply with Rule 56(d). (See Opp’n
`Rule 56(d) Mot.) But the State has “show[n] by affidavit or declaration that, for
`specified reasons, it cannot present facts essential to justify its opposition.” Fed R.
`Civ. P. 56(d). The State identifies “three categories of specific facts,” and explains the
`specific facts it is “unable to present . . . because discovery has not opened.” (Decl.
`Caitlan McLoon ISO Rule 56(d) Mot. ¶¶ 2, 5, ECF No. 57-2.) These are not “bare
`assertion[s],” (Opp’n Rule 56(d) Mot. 10), and thus are sufficient to comply with
`Rule 56(d)’s requirements. In any event, even if the State’s Rule 56(d) motion was
`deficient, the Court finds that there are genuine disputes of material fact that preclude
`it from granting summary judgment at this stage.
`Plaintiffs raise concerns that the State will use “improper tactic[s]” and take an
`“abusive approach” to discovery in this case. (Opp’n Rule 56(d) Mot. 1.) To be clear,
`at this time, the Court does not rule on whether the State is entitled to specific
`discovery. The Court simply rules that further development of the facts are needed for
`it to evaluate Plaintiffs’ Motion for Summary Judgment. If the State takes an abusive
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`approach to discovery, Plaintiffs may pursue appropriate measures, as may any party
`in any litigation. See, e.g., Fed. R. Civ. P. 26.
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`V. CONCLUSION
`For the reasons discussed above, the Court GRANTS the State’s Motion to
`Defer or Deny Plaintiffs’ Motion for Summary Judgment on Claim I, (ECF No. 57),
`and DENIES Plaintiffs’ Motion for Summary Judgment on Claim I, (ECF No. 48),
`WITH LEAVE TO RE-FILE.
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`IT IS SO ORDERED.
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`November 5, 2024
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` ____________________________________
` OTIS D. WRIGHT, II
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` UNITED STATES DISTRICT JUDGE
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