United States District Court, D. Nevada
MOTION TO STAY DISCOVERY (ECF NO. 39) AND MOTION TO
STRIKE PROPOSED DISCOVERY PLAN AND SCHEDULING ORDER (ECF NO.
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants U.S. Bank, National Association;
Western Progressive-Nevada, Inc., and Ocwen Loan Servicing,
“Defendants”) Motion to Stay Discovery (ECF No. 39)
and Defendants' Motion to Strike ECF No. 41, Plaintiff
Alfred Clark's Discovery Plan and Scheduling Order (ECF
No. 42). For the reasons discussed below, Defendants'
motions to stay discovery and strike the proposed discovery
plan are granted. The Court also vacates the hearing set for
October 13, 2017 relating to these motions. (ECF No. 45).
TO STRIKE PROPOSED DISCOVERY PLAN
preliminary matter, the Court grants Defendants' motion
to strike the proposed discovery plan and scheduling order.
(ECF No. 42). Plaintiff concedes that the proposed order is a
“draft” filed before the parties held a
conference under Fed.R.Civ.P. 26(f) and LR 26-1. (ECF No. 46
at 3). The rules do not provide for filing a
“draft” of a discovery plan prior to the parties
meeting. Therefore, the proposed plan (ECF No. 41) is hereby
TO STAY DISCOVERY
move to stay discovery based on their pending motion to
dismiss Plaintiff's complaint. (ECF No. 39). When
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 Rules “should be
construed and administered to secure the just, speedy, and
inexpensive determination of every action.” 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. 26(B)(2)(iii).
Rules do not provide for automatic or blanket stays of
discovery when a potentially dispositive motion is pending.
Ministerio Roca Solida v. U.S. Dep't of Fish &
Wildlife, 288 F.R.D. 500, 502 (D. Nev. 2013). 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). “[A]
party seeking a stay of discovery carries the heavy burden of
making a strong showing why discovery should be
denied.” Ministerio Roca Solida, 288 F.R.D. at
503. Generally, 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).
in the District of Nevada apply a two-part test when
evaluating whether a discovery stay should be imposed.
See TradeBay, LLC v. Ebay, Inc., 278 F.R.D. 597, 600
(D. Nev. 2011). 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.
complaint generally asserts that Defendants are wrongfully
attempting to foreclose on Plaintiff's property. (ECF No.
1 at 4-6, 9-10). Plaintiff's assertion centers around the
deed of trust on the property being assigned from New Century
to U.S. Bank after New Century filed for Bankruptcy.
(Id.). Defendants assert there are several
foundational, legal issues with Plaintiffs' claims.
Defendants argue Plaintiff lacks standing to challenge the
assignment, there is no legal basis to challenge the
assignment, Plaintiff's claims are time-barred, and
Plaintiffs' claims fail to meet pleading standards. (ECF
No. 39 at 2).
prejudging the outcome of the motion to dismiss, the Court
finds there is a high likelihood that the complaint will be
significantly limited in scope if not eliminated when the
pending motion to dismiss is decided. There appears to be
merit in several of Defendants' arguments against
Plaintiff's claims, and these arguments would not need
further discovery to resolve. 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 the motion
to dismiss has merit, may resolve most if not all issues in
controversy, and demonstrates good cause to stay discovery.
and for good cause shown, IT IS HEREBY ORDERED that
Defendants' Motion to Stay Discovery (ECF No. 39) is
FURTHER ORDERED that Defendants' Motion to Strike
Plaintiff's Discovery Plan and Scheduling Order (ECF No.
42) is hereby GRANTED. Plaintiff's proposed discovery
plan and scheduling order (ECF No. 41) is hereby STRICKEN. In
the event resolution of Defendants' motion to dismiss
(ECF No. 25) does not result in the disposition of this case,