United States District Court, D. Nevada
L. TROTTER, ESQ. Nevada State Bar No. 8696 State Of Nevada,
Department of Employment, Training & Rehabilitation
(DETR), Employment Security Division (ESD) Attorney for
MOTION TO STAY DISCOVERY
HONORABLE CAM FERENBACK UNITED STATES MAGISTRATE JUDGE
NOW, Defendants Renee Olson, Administrator, State of
Nevada, Department of Employment, Training and
Rehabilitation, Employment Security Division; Administrative
Tribunal referee, Barbara Bielecki (Referee Bielecki); and,
Katie Johnson, Chairwoman of the Employment Security Division
Board of Review (hereinafter, collectively, "ESD"),
by and through Division Senior Legal Counsel, Laurie L.
Trotter, Esq., and hereby move this Court to stay discovery
in this matter pending its ruling on the Defendants'
Motion To Dismiss. This Motion seeks to stay discovery in the
civil rights case commenced on December 6, 2016, when
Plaintiff John Mahler (Mahler) filed his "Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983"
(Complaint). This Motion is made and based on the
accompanying Memorandum of Points and Authorities, as well as
all papers and pleadings on file herein.
OF POINTS AND AUTHORITIES
alleges in the instant civil rights complaint that on
December 7, 2014, about two (2) years before the commencement
of this action, ESD Administrative Tribunal Referee Barbara
Bielecki (Referee Bielecki) violated his due process rights.
Referee Bielecki did so by ruling against him during the
state administrative hearing that focused on his alleged
right to unemployment benefits.
sought judicial review of Referee Bielecki's decision in
this state administrative matter and prevailed at the state
district court level when the state district court, by way of
an order entered on March 14, 2017, remanded the matter for a
new hearing before a different ESD referee. This case remains
pending at the ESD Administrative Tribunal level.
instant case and the underlying state administrative case
involve the same parties and stem from the same events. The
federal due process rights issue is raised in both. ESD and
Referee Bielecki moved to dismiss this case on March 17,
2017, raising issues of jurisdiction, immunity, statute of
purpose of Federal Rule of Civil Procedure 12(b)(6) is to
enable defendants to challenge the legal sufficiency of a
complaint without subjecting themselves to discovery.
Rutman Wine Co. v. E & J Gallo Winery, 829 F.2d
729, 738 (9th Cir.1987). The Ninth Circuit has held that
discovery at the pleading stage is only appropriate where
factual issues are raised by a Rule 12(b) motion. A pending
Rule 12(b) motion to dismiss is sufficient cause for granting
a protective order. Wagh v. Metris Direct, Inc., 363
F .3d 821, 829 (9th Cir.2003), overruled on other
grounds, Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th
Cir.2007) (en banc). Dispositive motions which raise issues
of jurisdiction or immunity are commonly situations in which
federal courts determine that staying discovery pending a
ruling on a dispositive motion is appropriate. Wood v.
McEwen, 644 F.2d 797, 801 (9th Cir.1981) (per curium).
The United States Supreme Court has squarely held that until
the threshold issue of immunity is resolved, discovery should
not proceed. Harlowe v. Fitzgerald, 457 U.S. 800,
818 (1982). Immunity includes not only immunity from
liability, but immunity from participating in a lawsuit.
issues of jurisdiction and immunity are being determined,
pretrial discovery should be avoided. Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). ESD's and Referee
Bielecki's Motion to Dismiss, which raises issues of
jurisdiction and immunity, is dispositive of the entire case.
It can be decided without additional discovery.
on the foregoing, Defendants respectfully request that this
Court stay discovery pending its ruling on ESD's and
Referee Bielecki's Motion To Dismiss.