United States District Court, D. Nevada
FERENBACH UNITED STATES MAGISTRATE JUDGE
the Court are Defendants April Ademiluyi, Las Vegas Review
Journal, Inc. and Carri Geer Thevenot's Motions to Stay
(ECF Nos. 60 and 62) and Motion to Expedite the Motion to
Stay Discovery (ECF No. 70).
evaluating a motion to stay discovery while a dispositive
motion is pending, the court initially considers the goal of
Federal Rule of Civil Procedure 1. The guiding premise of the
Rules is that the Rules “should be construed and
administered to secure the just, speedy, and inexpensive
determination of every action.” FED. R. CIV. P. 1. It
needs no citation of authority to recognize that discovery is
expensive. The Supreme Court has long mandated that trial
courts should resolve civil matters fairly but without undue
cost. Brown Shoe Co. v. United States, 370 U.S. 294,
306 (1962). This directive is echoed by Rule 26, which
instructs the court to balance the expense of discovery
against its likely benefit. See FED.R.CIV.P.
with the Supreme Court's mandate that trial courts should
balance fairness and cost, the Rules do not provide for
automatic or blanket stays of discovery when a potentially
dispositive motion is pending. Skellerup Indus. Ltd. v.
City of Los Angeles, 163 F.R.D. 598, 600-01 (C.D. Cal.
1995). Pursuant to Federal Rule of Civil Procedure 26(c)(1),
“[t]he court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Whether to
grant a stay is within the discretion of the court.
Munoz-Santana v. U.S. I.N.S., 742 F.2d 561, 562 (9th
Cir. 1984). The party seeking the protective order, however,
has the burden “to ‘show good cause' by
demonstrating harm or prejudice that will result from the
discovery.” FED. R. CIV. P. 26(c)(1). Satisfying the
“good cause” obligation is a challenging task. A
party seeking “a stay of discovery carries the heavy
burden of making a ‘strong showing' why discovery
should be denied.” Gray v. First Winthrop
Corp., 133 F.R.D. 39, 40 (N.D.Cal.1990) (citing
Blankenship v. Hearst Corp. 519 F.2d 418, 429 (9th Cir.
imposing a stay of discovery pending a motion to dismiss is
permissible if there are no factual issues raised by the
motion to dismiss, discovery is not required to address the
issues raised by the motion to dismiss, and the court is
“convinced” that the plaintiff is unable to state
a claim for relief. Rae v. Union Bank, 725 F.2d 478,
481 (9th Cir. 1984); White v. Am. Tobacco Co., 125
F.R.D. 508 (D. Nev. 1989) (citing Wood v. McEwen,
644 F.2d 797, 801 (9th Cir. 1981) cert. denied, 455 U.S. 942
(1982). Typical situations in which staying discovery pending
a ruling on a dispositive motion are appropriate would be
where the dispositive motion raises issues of jurisdiction,
venue, or immunity. TradeBay, LLC v. Ebay, Inc., 278
F.R.D. 597, 600 (D. Nev. 2011).
in the District of Nevada apply a two-part test when
evaluating whether a discovery stay should be imposed.
Id. (citations omitted). First, the pending motion
must be potentially dispositive of the entire case or at
least the issue on which discovery is sought. Id.
Second, the court must determine whether the pending motion
to dismiss can be decided without additional discovery.
Id. When applying this test, the court must take a
“preliminary peek” at the merits of the pending
dispositive motion to assess whether a stay is warranted.
Id. The purpose of the “preliminary
peek” is not to prejudge the outcome of the motion to
dismiss. Rather, the 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.
Local Rule 7-2(d), The failure of an opposing party to file
points and authorities in response to any motion, except a
motion under Fed.R.Civ.P. 56 or a motion for attorney's
fees, constitutes a consent to the granting of the motion. No
opposition has been filed and the time to file an opposition
good cause exists to grant Defendants Motions to stay. Here,
Ademiluyi's Motion to Dismiss (ECF No. 34) raises issues
of personal jurisdiction which warrants a stay of discovery.
After a “preliminary peek" and in light of the
goals of Rule 1 to “secure the just, speedy, and
inexpensive” determination of all cases, the Court
finds that Las Vegas Review Journal, Inc. and Carri Geer
Thevenot's Motion to Dismiss (ECF No. 7) has merit and
may resolve all issues in controversy and demonstrates good
cause to stay discovery. The parties will not need to incur
unnecessary discovery costs during the pendency of the motion
to dismiss. See Fed. R. Civ. P. 1.
and for good cause shown, IT IS HEREBY ORDERED that the
Defendants April Ademiluyi, Las Vegas Review Journal, Inc.
and Carri Geer Thevenot's Motions to Stay (ECF Nos. 60
and 62) are hereby GRANTED. In the event resolution of
Defendants' motions to dismiss (ECF Nos. 7 and 34) does
not result in the disposition of this case, the parties must
file a new joint discovery plan within 21 days of the
issuance of the order deciding that motion.
FURTHER ORDERED that the Motion to Expedite the Motion to
Stay Discovery (ECF No. 70) is DENIED as MOOT. IT IS FURTHER
ORDERED that Plaintiff's Second Motion for an Order
Compelling Defendants to Identify Jane Doe (ECF No. 66) is
DENIED without prejudice. Plaintiff may refile his motion
after the resolution of the motion to dismiss, if the case is
still pending before this court.
FURTHER ORDERED that a status hearing is scheduled for 11:00