United States District Court, D. Nevada
ORDER REQUEST TO CONDUCT DISCOVERY (ECF NO. 44),
MOTION TO FILE PRESENTENCE INVESTIGATION REPORT UNDER SEAL
(ECF NO. 46), MOTION TO STAY DISCOVERY (ECF NO. 52)
FERENBACH, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Lausteveion Johnson's Request to
Conduct Discovery (ECF No. 44); Defendants Board of Parole
Commissioners, Parole Commissioner Chairman Connie S. Bisbee,
Parole Board Commissioner Lucille Monterde, Parole Board
Commissioner Michael Keeler, and Executive Secretary Darla
Foley (collectively “Defendants”) Motion for
Leave to File Plaintiff's Presentence Investigation
Report Under Seal (ECF No. 46); and Defendants' Motion to
Stay Discovery (ECF No. 52). For the reasons discussed below,
Defendants' motion to file under seal is granted,
Plaintiff's request to conduct discovery is denied, and
Defendants' motion to stay is granted.
TO FILE PRESENTENCING INVESTIGATION REPORT UNDER
of their motion to dismiss, Defendants filed Plaintiffs'
Presentence Investigation Report under seal. (ECF No. 48-1).
Under NRS 176.156(5), “a report of a presentence
investigation or general investigation and the sources of
information for such a report are confidential and must not
be made a part of any public record.” Therefore, the
Court grants Defendants' motion to file under seal
pursuant to Fed.R.Civ.P. 5.2(d). ECF No. 48 will remain under
seal in this case.
TO CONDUCT DISCOVERY AND MOTION TO STAY DISCOVERY
move to stay discovery based on their pending motion to
dismiss Plaintiff's complaint. (ECF No. 47). 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, 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); Wood v. McEwen, 644 F.2d 797, 801 (9th Cir.
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 the Defendants acted on false
information and a new, harsher risk assessment scheme in
denying Plaintiff parole in 2013 and 2016, effectively
removing any chance Plaintiff had to be paroled. (ECF No. 16
at 6-10). On November 2, 2017, Plaintiff filed a request to
conduct discovery. (ECF No. 44). The one-page request
contains no indication of what discovery Plaintiff seeks and
no citations to any legal authority. On November 14, 2017,
Defendants filed a motion to stay discovery. (ECF No. 52).
Defendants argue there are nine bases to dismiss
Plaintiff's case that will not require discovery to
resolve. (Id. at 3-8). Plaintiff failed to oppose
the motion to stay.
prejudging the outcome of the motion to dismiss, the Court
finds there is a significant likelihood that the complaint
will be considerably limited in scope if not eliminated
entirely 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.
In addition, under LCR 47-3, “[t]he failure of an
opposing party to include points and authorities in response
to any motion constitutes a consent to granting the
and for good cause shown, IT IS HEREBY ORDERED the
Defendants' Motion for Leave to File Plaintiff's
Presentence Investigation Report Under Seal (ECF No. 46) is
FURTHER ORDERED that Plaintiff's Request to Conduct
Discovery (ECF No. 44) is DENIED.
FURTHER ORDERED that Defendants' Motion to Stay Discovery