United States District Court, D. Nevada
ORDER MOTION TO STAY DISCOVERY (ECF NO. 33)
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant Allied Collection Services, Inc.'s
(“Allied”) Motion to Stay Discovery. (ECF No.
33). For the reasons discussed below, Allied's motion is
obtained a signed confession of judgment from Jaime Retiguin
(a non-party in this case) in Las Vegas Justice Court case
16C011433. (ECF No. 10 at 3). Allied attempted to garnish
funds from Retiguin's bank account, but the money was
actually taken from the account of Jaime Retiguin Barba, Sr.,
Retiguin's father. (Id. at 6). Once notified of
the mistake, Allied returned most of the money “but
refused to fully reimburse Barba.” (Id. at 7).
September 1, 2016, Allied issued a Writ of Execution against
Karla Gonzalez, Retiguin's wife. (Id. at 4). On
October 3, 2016, Gonzalez filed a motion in the Justice Court
case arguing that she was not responsible for the debt and
the debt was already paid. (Id.). Gonzalez retained
counsel that appeared at a hearing on November 7, 2016, where
Allied agreed to cease garnishing Gonzalez's wages.
and Barba subsequently filed this action claiming Allied
violated the Fair Debt Collection Practices Act
(“FDCPA”). (ECF No. 10 at 7-8). Allied filed a
motion to dismiss Plaintiff's amended complaint, arguing
“the complaint should be dismissed because: (1) Mr.
Barba is not a ‘consumer, ' (2) Allied did not
violate the FDCPA, and (3) many of Ms. Gonzalez's
allegations are barred by principals of Judicial Admission;
and Issue Preclusion.” (ECF No. 15 at 2). As part of
the motion to dismiss, Allied “requested that the Court
take Judicial Notice of 19 Exhibits that demonstrate that the
Plaintiff's claims are without merit.”
file a motion to stay discovery pending the resolution of its
motion to dismiss. (ECF No. 33). Allied argues it is likely
to succeed in its motion to dismiss because the statutes
cited in the complaint do not apply to Barba and Allied was
not threatening to Barba. (Id. at 5). In addition,
Allied asserts Gonzalez's “claims in the current
matter are clearly inconsistent [with the claims she made in
the Justice Court case] and thus, should be barred by
Judicial Estoppel.” (Id. at 7). While it is
difficult to understand what claims Allied is referring to in
its motion for stay, Allied appears to reference allegations
regarding when Allied became aware that at least a portion of
Retiguin's debt had been repaid. (ECF No. 15 at 14-25).
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 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.” “[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.
Wood v. McEwen, 644 F.2d 797, 801-02 (9th Cir.
1981); Rae v. Union Bank, 725 F.2d 478, 481 (9th
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.
motion to dismiss is potentially dispositive and needs no
further discovery to resolve, as it has been fully
briefed. However, without prejudging the outcome of
the motion, the Court is not convinced that Plaintiffs are
unable to state a claim for relief against Allied.