United States District Court, D. Nevada
RUSSELL K. UEHARA, Plaintiff,
TD BANK, et al., Defendants.
Hoffman, Jr., United States Magistrate Judge
before the Court is Defendant Specialized Loan
Servicing's (“SLS”) Emergency Motion to Stay
Discovery (ECF No. 28), filed on April 13, 2017. The Court
determined that it would not be considered on an emergency
basis, and ordered responses and replies in the ordinary
course, but also ordered that discovery be stayed as to all
parties pending the court ruling on the motion. (Min. Order
(ECF No. 29).) Plaintiff Russell Uehara filed a response (ECF
No. 41) on April 27, 2017. Defendant filed a reply (ECF No.
46) on May 11, 2017, along with a supplemental supporting
declaration (ECF No. 47).
Fair Credit Reporting Act (“FCRA”) action arises
from a dispute regarding whether SLS inaccurately reported
Uehara's debts. (Am. Compl. (ECF No. 4.) Defendant SLS
moved to dismiss, arguing Plaintiff has failed to allege
facts sufficient to state valid state or federal claims.
(Mot. to Dismiss (ECF No. 23) at 2.) Specifically, SLS argues
that Plaintiff fails to adequately allege two critical
elements: (1) that SLS reported an inaccurate current or past
due balance for the debt or failed to report Plaintiff's
discharge and (2) that Plaintiff suffered any concrete injury
as a proximate result of any of Plaintiff's alleged
reporting of the debt. (Id.) Defendant SLS moves to
stay discovery pending the outcome of the motion to dismiss,
arguing that the motion is case-dispositive and that
discovery is therefore unnecessary.
responds that SLS failed to meet and confer in good faith,
that the motion to dismiss will be denied, that the motion to
dismiss will not effectively resolve the entire case, and
that Plaintiff will need to conduct discovery before
addressing the motion to dismiss. Defendant SLS replies and
disputes Plaintiff's arguments.
have broad discretionary power to control discovery,
including the decision to stay discovery. See e.g.,
Little v. City of Seattle, 863 F.2d 681, 685 (9th
Cir. 1988). When evaluating whether to stay discovery, the
court considers the goal of Rule 1 of the Federal Rules of
Civil Procedure, which directs that the rule must be
“construed and administered to secure the just, speedy,
and inexpensive determination of every action.”
Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 602 (D.
Nev. 2011) (citation omitted). But the Rules do not provide
for an automatic stay of discovery when a potentially
dispositive motion is pending. Id. at 600-01. Thus,
a pending dispositive motion “is not ordinarily a
situation that in and of itself would warrant a stay of
discovery.” Turner Broad. Sys., Inc. v. Tracinda
Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (quotation
omitted). Nor does the fact that “discovery may involve
some inconvenience and expense” automatically warrant a
stay of discovery. Id.
determining whether to stay discovery, the court considers
whether (1) the pending motion is potentially dispositive of
the entire case, or at least of the issue on which discovery
is sought; and (2) the potentially dispositive 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). This analysis requires the
court to take a “preliminary peek” at the
potentially dispositive motion. Tradebay, 278 F.R.D.
at 603. This assessment is meant not to prejudge a
motion's outcome but, rather, to accomplish the cost- and
time-saving objectives of Rule 1 by evaluating the justice of
either permitting or delaying discovery. Id. A court
may stay discovery when it is convinced that the plaintiff
will be unable to state a claim for relief. Turner,
175 F.R.D. at 555. Ultimately, the party seeking the stay
“carries the heavy burden of making a ‘strong
showing' why discovery should be denied.”
Id. at 556 (quotation omitted).
court now takes a “preliminary peek” at the
merits of Defendant's motion to dismiss to determine
whether it is potentially dispositive of the entire case and
whether the motion to dismiss can be decided without
Failure to Meet and Confer
Rule 26-7 requires that the parties meet and confer
telephonically, or in person, regarding discovery disputes.
Defendant SLS provides a declaration indicating that counsel
for SLS and Plaintiff conferred via telephone during the Fed.
R. Civ. P:. 26(f) conference and Plaintiff indicated it would
not consent to stay discovery. (Decl. (ECF No. 47) at 2.)
Although the Court is unable to assess the extent to which
the parties attempted to resolve this dispute, the Court
accepts the representation that the matter was discussed and
no agreement was reached. Accordingly, the Court finds that
the meet and confer was adequate.
Likelihood of Dismissal
survive a 12(b)(6) motion to dismiss, a plaintiff must allege
enough facts to state a claim that is “plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). “The plausibility standard . . .
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). When pleading facts that do no more than
infer the possibility of misconduct, a complaint has alleged,
but not shown, that the plaintiff is entitled to relief.
Id. at 679. Properly pled allegations contain
“more than labels and conclusions.”
Twombly, 550 U.S. at 555. While courts must accept
as true all factual allegations in a complaint, legal
conclusions do not receive the same treatment, even if
couched as factual allegations. Iqbal, 556 U.S. at
state an FCRA claim here, Plaintiff must plead facts
establishing that (1) SLS provided inaccurate information to
the credit reporting agency (“CRA”); (2) the CRAs
notified SLS of the dispute; and (3) SLS “failed to
conduct a reasonable investigation into the accuracy of the
disputed information, in light of the information provided to
it by the CRA.” See Benfield v. Bryco Funding,
Inc., C 14-1459 PJH, 2014 WL 2604363, at *5 (N.D. Cal.
June 10, 2014) (citing Gorman v. Wolpoff & Abramson,
LLP, 584 F.3d 1147, 1154 (9th Cir. 2009)); see also
Hernandez v. Wells Fargo Fin. Nat'l Bank, 2014 U.S.
Dist. 51854 (D. Nev. 2014) (holding that a debt that has been
charged off by a creditor does not support a finding of
inaccuracy). Plaintiff must also allege that he was injured
because of the failure to conduct the reasonable
investigation. Reagan v. American Home Mortg. Servs.,