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Maher v. Bielecki

United States District Court, D. Nevada

March 18, 2017

JOHN MAHLER, Plaintiff,
v.
BARBARA BIELECKI, NEVADA EMPLOYMENT SECURITY DIVISION, STATE OF NEVADA, RENEE OLSON, in her capacity as ADMINISTRATOR of the NEVADA EMPLOYMENT SECURITY DIVISION; KATIE JOHNSON, in her capacity as chairwomen of the NEVADA EMPLOYMENT SECURITY DIVISION BOARD OF REVIEW, and DOES 1-10, Defendants.

          LAURIE L. TROTTER, ESQ. Nevada State Bar No. 8696 State Of Nevada, Department of Employment, Training & Rehabilitation (DETR), Employment Security Division (ESD) Attorney for DETR/ESD.

          MOTION TO STAY DISCOVERY

          HONORABLE CAM FERENBACK UNITED STATES MAGISTRATE JUDGE

         COME 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.

         MEMORANDUM OF POINTS AND AUTHORITIES

         I. FACTS

         Mahler 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.

         Mahler 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.

         The 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 limitations.

         II. ARGUMENT

         The 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.

         While 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.

         III. CONCLUSION

         Based on the foregoing, Defendants respectfully request that this Court stay discovery pending its ruling on ESD's and Referee Bielecki's Motion To Dismiss.

         PROPOSED ...


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