United States District Court, D. Nevada
FERENBACH, UNITED STATES MAGISTRATE JUDGE
the court are HSBC's motion to stay discovery (ECF No.
22), Maldonado's response (ECF No. 30), and HSBC's
reply (ECF No. 32). For the reasons stated below, HSBC's
motion is denied.
to stay discovery may be granted when: (1) the pending motion
is potentially dispositive; (2) the potentially dispositive
motion can be decided without additional discovery; and (3)
the Court has taken a ‘preliminary peek' at the
merits of the potentially dispositive motion and is convinced
that the plaintiff will be unable to state a claim for
relief.” Kor Media Group, LLC v. Green, 294
F.R.D. 579, 581 (D.Nev. 2013). “[A] party seeking to
stay discovery carries the heavy burden of making a strong
showing why discovery should be denied.” Id.
purposes of ruling on a motion to stay discovery, the
“‘preliminary peek' at the merits of the
underlying motion is not intended to prejudge the
outcome.” Tradebay, LLC v. eBay. Inc., 278
F.R.D. 597, 601 (D. Nev. 2011). The court's role
“is to evaluate the propriety of an order staying or
limiting discovery with the goal of accomplishing the
objective of Rule 1.” Id.
purpose [of a stay of discovery] is to protect a party from
the expense of engaging in discovery where fundamental
issues, like jurisdiction, venue, or immunity, exist.”
Sou v. Bash, No. 2:15-cv-698-APG-VCF, 2015 WL
7069297 at *2 (D.Nev. Nov. 10, 2015).
November 11, 2016, HSBC moved to dismiss this entire action.
(ECF No. 16) Their principle argument is that Maldonado lacks
Article III standing, specifically an injury in fact, to
bring this action. On December 2, 2016, HSBC moved to stay
discovery. (ECF No. 22)
parties agree that HSBC's motion to dismiss is
potentially dispositive of this entire action. The parties do
dispute whether the second and third elements of the stay
analysis have been satisfied. Maldonado contends that
discovery is necessary to resolve the motion to dismiss. (ECF
No. 30) He states that “Defendant's motion to
dismiss is based largely on whether Plaintiff suffered harm
when Defendant unlawfully accessed Plaintiff's private
credit information without any permissible purpose, [which]
raises factual issues that will be resolved in
discovery.” (Id.) This argument conflates the
need for discovery to decide the motion to dismiss and the
need for discovery to establish liability and damages. When
the court considers HSBC's motion to dismiss, it will
assume all non-conclusory facts to be true. Ashcroft v.
Iqbal, 556 U.S. 662, 680, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). Thus additional discovery regarding whether
Maldonado suffered an injury for the purposes of the motion
to dismiss is unnecessary.
regard to the third element, the analysis is more nuanced.
Ordinarily, a motion to dismiss for lack of standing would be
a good candidate for a stay. Sou, 2015 WL 7069297 at
*2. In the aftermath of Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 194 L.Ed.2d 635 (2016), the answer to the
standing question is less certain. In Spokeo,
“[t]he Supreme Court recently reaffirmed a few well-
established principles with respect to the ‘injury in
fact' requirement.” Cabiness v. Educational
Financial Solutions, LLC, No. 16-cv-1109-JST, 2016 WL
5791411 at *3 (N.D.Cal. Sept. 1, 2016) “To establish
injury in fact, a plaintiff must show that he or she suffered
an invasion of a legally protected interest that is concrete
and particularized and actual or imminent, not conjectural or
hypothetical.” Spokeo, Inc., 136 S.Ct. at
1548. The Supreme Court in Spokeo reversed and
remanded the Ninth Circuit's decision that a plaintiff,
whose only alleged injury was a violation of his statutory
rights, had established injury in fact. Id. However
the question on remand was a narrow one: “whether the
particular procedural violations alleged in this case entail
a degree of risk sufficient to meet the concreteness
requirement.” Id. at 1550. The Ninth Circuit
has yet to issue a new opinion light of the Supreme
Court's Spokeo decision.
argues that the invasion of his privacy is a sufficient
injury in fact to confer standing in a Fair Credit Reporting
Act (FCRA) action. (ECF No. 30) He supports his argument with
citations to numerous, out-of-circuit authorities that find
an invasion of privacy in the context of a FCRA action is a
sufficient injury in fact. (Id.) HSBC counters that
the Ninth Circuit's established standing precedent
forecloses Maldonado's argument. (ECF No. 22)
the uncertainty in the law, this court is not convinced that
HSBC will prevail on its motion to dismiss.
and for good cause shown, IT IS HEREBY ORDERED that
HSBC's motion to ...