United States District Court, D. Nevada
J. LIZADA, ESQ., LIZADA LAW FIRM, LTD., EVA GARCIA-MENDOZA,
ESQ., Attorneys for Plaintiff.
MARQUIS AURBACH COFFING CHAD F. CLEMENT, ESQ., CHRISTIAN T.
BALDUCCI, ESQ., JARED M. MOSER, ESQ., Attorneys for
PLAINTIFF'S LIMITED OPPOSITION TO DEFENDANTS'
MOTION TO CONSOLIDATE
GUEORGUI GANTCHEV (“Plaintiff” or “Mr.
Gantchev”), and Defendants, 3RD GENERATION INC. dba
CALIFORNIA AUTO FINANCE and CARLOS NAVAS, by and through
their respective counsel, do hereby stipulate and request
that the Court issue an order staying discovery until the
Court has ruled on Defendant's Motion to Dismiss and to
Strike (ECF No. 14) (“Motion to
Dismiss”) and Plaintiff's Countermotion for Leave
to File Third Amended Complaint (ECF No. 18)
(“Motion to Amend”).
Complaint (ECF No. 1) alleging violations of
15 U.S.C. §§ 1692b(2), 1692d, 1692e, 1692f, and
1692g, of the Fair Debt Collection Practices Act
(“FDCPA”), violations of the Nevada Deceptive
Trade Practices Act, violation of Nevada Revised Statutes
(“NRS”) Chapter 649, and requesting injunctive
relief, was filed on January 23, 2017. On February 8, 2017,
Defendants were served (ECF No. 4). On March
3, 2017, Default was entered against Defendants (ECF
No. 8). On March 21, 2017, the parties stipulated to
set aside the default, and Plaintiff agreed to amend the
Complaint to correct the name of the corporate defendant
(ECF No. 9). Plaintiff filed an Amended
Complaint on March 22, 2017 (ECF No. 10).
The Court accepted the parties' stipulation and entered
an Order thereon (ECF No. 12) on March 23,
2017. On April 17, 2017, Plaintiff filed a Second Amended
Complaint to remedy an additional clerical error (ECF
April 18, 2017, Defendants filed a Motion to Dismiss and to
Strike (ECF No. 14) arguing that (A) the
claims based on FDCPA fail as a matter of law because
Defendants are not “debt collectors”; (B) claims
based on Nevada's Deceptive Trade Practices laws require
pleading with particularity and that Plaintiff did not do so;
(C) that claims under NRS 649 fail as Defendants are not a
“collection agency”; and (E) Plaintiff's
assertion of remedies as a claim requires dismissal or
striking of those claims. Plaintiff opposed Defendants'
Motion to Dismiss (ECF No. 16) on May 2,
2017 and filed his Motion to Amend on May 3, 2017
(ECF No. 18). Defendants' Motion to
Dismiss was fully briefed on May 8, 2017 when they filed
their Reply in Support of their Motion to Dismiss
(ECF No. 19), and Defendants opposed
Plaintiff's Motion to Amend on May 17, 2017 (ECF
No. 20). Plaintiff filed a Reply to Defendants'
Opposition to the Motion to Amend on May 24, 2017
(ECF No. 21). Further, Defendants filed a
Motion to Consolidate, to which Plaintiff did not object in
substance (ECF No. 23).
parties held their Federal Rule of Civil Procedure
(“FRCP”) 26(f) Conference on August 1, 2017. The
parties' FRCP 26(a)(1) disclosures are therefore
presently due on August 15, 2017. The parties agree that they
will provide FRCP 26(a)(1) disclosures by the above-stated
deadline with the hope that such disclosures will facilitate
settlement discussions, but the parties request that the
Court otherwise issue a stay of discovery and continue the
deadline for the parties' Stipulated Discovery Plan and
Scheduling Order pending the disposition of Defendants'
Motion to Dismiss (ECF No. 14) and
Plaintiff's Motion to Amend (ECF No.
18). The parties agree that if the Court issues this
stay of discovery, they will submit a Stipulated Discovery
Plan and Scheduling Order within fourteen (14) days of the
Court's order on the later of the decisions on either of
those motions, if Plaintiff's Complaint is not dismissed
A STAY OF DISCOVERY IS WARRANTED.
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). In evaluating the propriety of an order staying
or limiting discovery while a dispositive motion is pending,
the court considers the goal of FRCP 1, which provides that
the Rules should “be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action.”
With FRCP 1 as its prime directive, the Court must decide
whether it is more just to speed the parties along in
discovery while a dispositive motion is pending or to delay
discovery to accomplish the inexpensive determination of the
case. See Turner Broad. Sys., Inc. v. Tracinda
Corp., 175 F.R.D. 554, 556 (D. Nev. 1997); see also
Twin City Fire Ins. v. Employers Ins. of Wausau, 124
F.R.D. 652, 653 (D. Nev. 1989).
in assessing a request to stay discovery, the Court takes a
“preliminary peek” at the merits of the
dispositive motion. Tradebay, LLC, v. Ebay, Inc.,
278 F.R.D. 597, 603 (D. Nev. 2011). This “preliminary
peek” does not prejudge the outcome of the motion; it
merely evaluates whether an order staying discovery is
warranted. Id. Common examples of situations in
which good cause has been found to stay discovery are when
jurisdiction, venue, or immunity are preliminary issues.
Id. Ultimately, the party seeking the stay
“carries the heavy burden of making a strong showing
why discovery should be denied.” Id. (citing
Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th
Motion to Dismiss (ECF No. 14) warrants a
stay in discovery. First, the Court employs a two-part test
in determining whether to stay the discovery when a
dispositive motion is pending: (1) the pending motion must be
potentially dispositive of the entire case or at least
dispositive of the issue on which discovery is sought; and
(2) the Court must determine whether the pending potentially
dispositive motion can be decided without additional
discovery. See Ministerio Roca Solida v. U.S. Dep't
of Fish & Wildlife, 288 F.R.D. 500, 506 (D. Nev.
2013). Here, Defendants' Motion to Dismiss is potentially
dispositive of the entire case as it requests dismissal with
prejudice of all of Plaintiff's causes of action.
their Motion to Dismiss, Defendants argue that
Plaintiff's claims based on FDCPA fail as a matter of law
because Defendants are not “debt collectors”; (B)
claims based on Nevada's Deceptive Trade Practices laws
require pleading with particularity and that Plaintiff did
not do so; (C) that claims under NRS Chapter 649 fail as
Defendants are not a “collection agency”; and (E)
Plaintiff's assertion of remedies as a claim requires
dismissal or striking of those claims. (ECF No. 1
4 ) Additionally, the second part of the test is met
because the parties agree that additional discovery is not
necessary for the Court to rule on Defendants' Motion to
Dismiss. Plaintiff disputes the legal arguments made in
Defendants' Motion and has filed an Opposition.
(ECF No. 16). However, the parties agree
that Defendants' Motion t o D i s m i s s is the type
warranting a stay of discovery.
neither party will suffer hardship or inequity as a result of
stay because further discovery is not necessary at this
point. Because Defendants have moved to dismiss the entire
case, Plaintiff has not been apprised of which factual
allegations Defendants intend to admit and which factual
allegations Defendants intend to deny. Nor has Plaintiff been
apprised of the defenses that Defendants intend to assert.
Requiring the parties to conduct discovery on a claim that
may not be properly before the Court would result in an
unnecessary expenditure of resources by both parties.
similar to the situation in Little, this is a case
where a temporary stay of discovery will further the goals of
judicial economy, control of the Court's docket, and an
inexpensive determination of the case. 863 F.2d 681. Ordering
the parties to proceed with discovery could potentially clog
the Court's docket with discovery disputes on a claim
that may be dismissed. Moreover, there is a pending Motion to
Consolidate (ECF No. 23), and causing the