United States District Court, D. Nevada
SHERIF W. ABDOU, M.D. et al., Plaintiff,
DAVITA INC., et al., Defendants.
Hoffman, Jr. United States Magistrate Judge
before the Court is Plaintiff's motion to stay (ECF No.
42), filed on June 30, 2017. Defendant filed a response (ECF
No. 44) on July 14, 2017, and Plaintiff filed a reply (ECF
No. 45) on May 2, 2017.
moves to stay discovery in this matter pending a decision on
its motion to dismiss Defendant's counterclaim (ECF No.
41), arguing that this action is moot and discovery is
therefore unnecessary. Plaintiff also requests that the Court
schedule a settlement conference. Defendant opposes the
motion, arguing that neither Plaintiff's claim nor its
counterclaim are moot. It also believes that the parties
would not benefit from a settlement conference.
within the Court's broad discretion over discovery to
determine whether a stay of discovery is appropriate.
Little v. City of Seattle, 863 F.2d 681, 685 (9th
Cir. 1988). In determining whether to stay discovery pending
resolution of a dispositive motion, the party seeking the
stay “carries the heavy burden of making a
‘strong showing' why discovery should be
denied.” Turner Broad. Sys., Inc. v. Tracinda
Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). In order to
determine if a stay is appropriate, the court considers
whether (1) the pending motion is potentially dispositive of
the entire case or at least dispositive of the issue on which
discovery is sought, and (2) the motion can be decided
without additional discovery. Ministerio Roca Solida v.
U.S. Dep't of Fish & Wildlife, 288 F.R.D. 500,
506 (D. Nev. 2013). Further, “a stay of discovery
should only be ordered if the court is convinced that a
plaintiff will be unable to state a claim for relief.”
Tradebay LLC V. eBay, Inc., 278 F.R.D. 597, 603 (D.
Nev. 2011). Courts considering stays in this district have
found that this standard is not easily met (Kor Media
Grp., LLC v. Green, 294 F.R.D. 579, 583 (D. Nev. 2013)),
and that “[a]bsent extraordinary circumstances,
litigation should not be delayed simply because a
non-frivolous motion has been filed.” Id.
(quoting Trzaska v. Int'l Game Tech., 2011 WL
1233298, at *3 (D. Nev. Mar. 29, 2011)).
determine whether a stay of a potentially dispositive motion
is appropriate, courts in this district take a
“preliminary peek” at the motion. See
Tradebay, 278 F.R.D. 602-603. This inquiry is not meant
to prejudge the motion, but rather to determine whether a
stay would help the court to secure the “just, speedy,
and inexpensive determination” of the action as
required by Rule 1 of the Federal Rules of Civil Procedure.
both parties appear to concede that the pending motion to
dismiss can be adjudicated without discovery. Therefore, the
only remaining issues for the Court are whether
Plaintiff's motion to dismiss is dispositive of the
entire case, and whether the Court is convinced, after a
preliminary peek, that the motion will be granted.
support of its contention that the motion to dismiss
Defendant's counterclaims would be dispositive of this
case, Plaintiff argues that its own claim in this case is
moot, so that if the pending motion to dismiss
Defendant's counterclaim is successful, it will be
dispositive of the entire case. Plaintiff's mootness
argument is based on this Court's denial of its motion
for preliminary injunction on January 17, 2017, (ECF No. 26).
According to Plaintiff, this case became moot at that point
because the noncompete agreements that were the subject of
the preliminary injunction are set to expire on November 1,
2017, and a resolution of this case will certainly not occur
before then. Plaintiff's pending motion to dismiss also
depends on this argument.
based on its preliminary peek, the Court is not convinced
that the motion to dismiss is dispositive of the action, or
that the motion, which relies solely on the mootness
argument, is certain to be successful. Although the
noncompete agreements will expire before this case can come
to trial, it is not clear that both parties no longer have a
legally cognizable interest in the outcome. Even though
Plaintiff would prefer that this case be dismissed at this
point, the question of the validity of the noncompete clauses
has not been answered and remains in dispute. Motion to
Dismiss, at 3:8 (ECF No. 41). Further, Defendant's
pending motion to amend its counterclaim (ECF No. 31) may be
granted, and if it is, the expiration of the noncompete
agreements may be tolled. Finally, Plaintiff does not clearly
defeat Defendant's arguments against mootness. Defendant
provides authority suggesting that a finding of mootness
requires meeting a “heavy” burden (County of
Los Angeles v. Davis, 440 U.S. 625, 631 (1979)), which
includes establishing that both parties “lack a legally
cognizable interest in the outcome.” Powell v.
McCormack, 395 U.S. 486, 496 (1969). While Plaintiffs
arguments to the contrary are not without merit, the Court is
unconvinced after its preliminary peek that the motion to
dismiss will be granted.
Plaintiffs request for a settlement conference, based on
Defendant's reticence and the pending motion to amend the
counterclaim, the Court does not believe that a mandatory
settlement conference is warranted at this time. The parties