United States District Court, D. Nevada
DEFENDANTS' MOTION FOR PROTECTIVE ORDER TO STAY DISCOVERY (DOC. # 10)
WILLIAM G. COBB, Magistrate Judge.
Before the court is Defendants' Motion for Protective Order to Stay Discovery. (Doc. # 10.) Plaintiff did not file a direct response, but did submit a Motion for Discovery Plan and Scheduling Order with Special Scheduling Requested which peripherally addresses the stay issue. (Doc. # 15.)
The motion to stay discovery arises from Defendants' Motion to Dismiss for Failure to State a Claim. (Doc. # 6.) Defendants claim their motion to stay and their motion to dismiss should lead to a "dismiss[al] of the Complaint in its entirety." ( Id. at 17.) Further, Defendants argue because Plaintiff's claims "fail as a matter of law, no discovery is necessary by Plaintiff to oppose the motion [to dismiss]." (Doc. # 10 at 3.) Although as noted above Plaintiff did not file a separate response to Defendants' motion to stay, the court interprets Plaintiff's Motion for Discovery Plan (Doc. # 15) as expressing Plaintiff's opposition to the requested stay. While Plaintiff admits, tacitly at least, that some aspects of the motion to stay are meritorious, Plaintiff states discovery should nonetheless proceed regardless of the outcome of the Defendants' motion to dismiss, as he intends to seek leave to further amend his complaint. ( Id. at 1-2.)
For the reasons expressed in this order, and in the exercise of this court's discretion, good cause exists to stay discovery in this matter until District Judge Miranda M. Du has been able to address the subject of the Defendants' underlying motion to dismiss (Doc. # 6) which has now been fully briefed and is under submission to the court. (Docs. ## 8, 9.)
I. Legal Standard for Stays of Discovery
The Federal Rules of Civil Procedure do not provide any standards to be utilized with respect to stays of discovery when a potentially dispositive motion is pending. Skellerup Indus. Ltd. v. City of Los Angeles, 163 F.R.D. 598, 600-601 (C.D. Cal. 1995). Nor has this court been able to locate a Ninth Circuit decision enumerating the factors a district court should utilize when deciding a motion to stay discovery. In accord, Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597 at 602 (D. Nev. 2011). Ordinarily, a pending dispositive motion is not "a situation that in and of itself would warrant a stay of discovery." Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 544, 556 (D. Nev 1977) (quoting Twin City Fire Ins. v. Employers Insurance of Wausau, 124 F.R.D. 652, 653 (D. Nev. 1989)). That discovery may involve inconvenience and expense is not sufficient to support a stay of discovery. ( Id. ) "The fact that a non-frivolous motion is pending is simply not enough to warrant a blanket stay of all discovery." Tradebay at 603.
Courts have broad discretionary power to control discovery including the decision to allow or deny discovery. See e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). An overly lenient standard for granting motions to stay due to pending dispositive motions would result in unnecessary delay in many cases. However, examples of when stays of discovery might be appropriate are where jurisdiction, venue, or immunity are preliminary issues. Turner Broadcasting, 175 F.R.D. at 555-56; Twin City at 653. Ultimately, the party seeking the stay "carries the heavy burden of making a strong showing' why discovery should be denied." Turner Broadcasting, 175 F.R.D. at 556.
To determine if a stay is appropriate, the magistrate judge will typically take a "preliminary peek" at the underlying motion to dismiss (or other dispositive motion) and apply a two-part test: (1) the court must determine whether additional discovery is needed to rule on the pending dispositive motion, and (2) the motion must potentially dispose of the entire case or at least the dispositive issue on which discovery is sought. Tradebay at 603. The "preliminary peek" is not intended to predict the outcome of the motion, but rather to evaluate whether a stay is consistent with the goal of the Federal Rules of Civil Procedure of securing a just, speedy and inexpensive determination of the case.
Judge Leen observed in Tradebay that "evaluating a pending dispositive motion puts a magistrate judge in an awkward position." Tradebay at 603 (citing Mlejnecky v. Olympus Imaging America, Inc., 2011 WL 489742 at *6 (E.D. Cal. Feb. 7, 2011)). Judge Leen further stated:
The district judge will decide the dispositive motion and may have a different view of the merits of the underlying motion Thus, this court's "preliminary peek" at the merits of the underlying motion is not intended to prejudge its outcome. Rather, this court's role is to evaluate the propriety of an order staying or limiting discovery with the goal of accomplishing the objectives of Rule 1. With Rule 1 as its prime directive, this court must decide whether it is more just to speed the parties along in discovery and other proceedings while a dispositive motion is pending, or whether it is more just to delay or limit discovery and other proceedings to accomplish the inexpensive determination of the case.
Tradeba y at 603; in accord, Federal Trade Commission v. AMG Services, Inc., No. 2:12-cv-00536-GMN-VCF, 2012 WL 3730561, at *4 (D. Nev. Aug. 5, 2012).
Accordingly, a motion to dismiss or other dispositive motion is reviewed by taking a preliminary peek at the underlying motion, not to prejudge its outcome but to evaluate the probable likelihood of success. This court will now undertake a review of the likelihood of success of Defendants' motion to dismiss and also whether any discovery is necessary with respect to Defendants' motion.
II. Analysis of the Motion to Stay (Doc. # 10)
A. Whether Plaintiff Requires Any Discovery to be Able to Oppose the Defendants' ...