United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge
before the Court is Defendant's motion to stay (ECF No.
57), filed on November 17, 2017. Plaintiff filed a response
(ECF No. 57) on December 1, 2017, and Defendant filed a reply
on December 8, 2017.
moves to stay all pre-trial proceedings pending the
Court's decision on its motion to dismiss (ECF No. 48),
arguing that a stay is appropriate since the pending motion
to dismiss would be dispositive of all claims in this case,
requires no further discovery, and is likely to be granted.
Plaintiff opposes the motion, suggesting that she believes
some of her claims may survive the motion to dismiss and that
she has requested leave to amend her complaint should it be
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 meeting this standard is a “heavy
burden” id., and not easily met (Kor Media
Grp., LLC v. Green, 294 F.R.D. 579, 583 (D. Nev. 2013)).
The default assumption is that discovery should go forward
while a dispositive motion is pending. “Absent
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 to secure the “just, speedy, and
inexpensive determination” of the action as required by
Rule 1 of the Federal Rules of Civil Procedure. Id.
Defendant argues that Plaintiff's second amended
complaint fails to correct the deficiencies noted by this
Court when it dismissed Plaintiff's first amended
complaint. Plaintiff does not address this argument in her
response to the instant motion, rather she asserts that
Defendants did not comply with her discovery requests,
without specifying how such discovery would alter the
order granting Defendant's first motion to dismiss (ECF
No. 40), the Court noted that Plaintiff had failed to allege
facts to support her sex-based discrimination claim,
including that male employees were treated more favorably
than her, or that the legitimate, non-discriminatory reason
offered to explain her termination was pretextual. As for the
disability-based discrimination claim, the Court noted that
Plaintiff failed to allege facts that would show she was
terminated because of her disability. The Court explained
that it was not enough for Plaintiff to allege that she was
treated more harshly than comparators who did not claim a
disability, because this constitutes a legal conclusion, not
a fact. The Court further explained that Plaintiff would have
to provide specific information about the comparators, their
circumstances, and the FBI's treatment of them in a way
that permits the inference that she was treated more harshly
because of discrimination.
argues that Plaintiff's amended complaint has not
meaningfully addressed these issues, so its renewed motion to
dismiss will likely be granted. Plaintiff provides no
relevant argument to the contrary. Neither party suggests
that the pending motion to dismiss would not be dispositive
of the entire case, or that further discovery is necessary
for the Court to render a decision. After a preliminary peek
at Defendant's motion to dismiss, the Court is convinced
that it will be granted. This finding does not constitute a
judgment on the motion to dismiss, which will be fully
considered in a separate order.
THEREFORE ORDERED that Defendant's motion to stay (ECF
No. 57) is GRANTED. Discovery in this matter is STAYED until
the Court announces a decision on Defendant's motion to
dismiss (ECF No. 48).
FURTHER ORDERED that Defendant's pending motion to quash
(ECF No. 39) is DENIED without prejudice to its reassertion,