United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge.
before this court is Defendant NV Energy, Inc.'s Motion
to Stay Discovery and the Early Neutral Evaluation Session
(ECF No. 20), filed on February 21, 2018. Plaintiff Fred
Rosenfeld filed a response (ECF No. 21) on February 22, 2018.
Defendant filed a reply (ECF No. 22) on February 27, 2018.
action arises out of an employment dispute between Plaintiff
Fred Rosenfeld and Defendant NV Energy, Inc., his former
employer. Plaintiff alleges he is 68 years old and was
employed by Defendant from March 1983 to November of 2016.
(Compl. (ECF No. 1) at ¶ 8.) Plaintiff alleges that he
was discriminated against based upon his age because he was
unfairly criticized for his work performance, which younger
employees did not endure; that he was treated unequally
regarding the terms and conditions of his employment as
opposed to younger co-workers; that he was the victim of
disparaging comments related to his taking retirement or that
he should leave his employment due to his age; that he
received unfounded discipline which was intended to cause
harm due to his age; and that he was terminated based upon
false allegations of misconduct. (Id. at ¶ 10.)
his termination, Plaintiff brought suit in this court against
Defendant asserting a claim for age discrimination and
hostile environment. (Compl. (ECF No. 1).) Defendant moved to
dismiss, arguing that the complaint did not satisfy the
pleading standard under Iqbal and Twombly
because the allegations are too speculative and conclusory
. (Mot. to Dismiss (ECF No. 9).) Defendant argues
that Plaintiff does not allege sufficient facts to infer a
causal connection between his age and his termination.
Defendant further argues that Plaintiff's subjective
speculation about his termination is insufficient to state a
claim for discrimination. Additionally, Defendant argues that
Plaintiff does not identify a similarly-situated co-worker
outside of his protected class who was treated more favorably
than Plaintiff was, or that he was replaced by a younger
employee with equal or inferior qualifications.
his hostile work environment allegations, Defendant argues
that Plaintiff has only set forth a bare recitation of the
elements, but does not allege even one disparaging comment,
and that comments regarding Plaintiff taking retirement are
insufficient to state a hostile work environment claim.
opposed the motion to dismiss, arguing that the complaint
sufficiently alleges plausible claims which will survive the
motion to dismiss. (Opp'n (ECF No. 11).) Plaintiff also
responds that the federal standard favors liberal leave to
amend, so if the motion to dismiss is granted, he would
nevertheless be allowed to amend his complaint. Plaintiff
therefore indicates he will move to amend the complaint if
the court finds greater factual content necessary. The motion
to dismiss the complaint is pending before the United States
district judge assigned to this case.
now moves to stay discovery pending the ruling on the pending
motion to dismiss, arguing the motion to dismiss is
dispositive of the entire case and that discovery would be
inefficient because Plaintiff does not state a cognizable
claim. (Mot. to Stay (ECF No. 20).) Plaintiff responds that
staying discovery would create unnecessary delay and prevent
him from diligently preparing his case, and that the motion
to dismiss is not dispositive of the entire case because he
will be allowed to amend his complaint. (Opp'n Mot. to
Stay Discovery (ECF No. 21).)
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 it can be decided without additional discovery.
Plaintiff's “first claim for relief” includes
a claim for age discrimination which the court understands to
be disparate treatment and hostile work environment claims.
(See Compl. (ECF No. 1).)
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
order to state a prima facie case of age discrimination,
Plaintiff must show that (1) he is a member of a protected
class (at least age 40), (2) he was performing his job
satisfactorily; (3) he suffered an adverse employment action,
and (4) he was replaced by a substantially younger employee
with equal ...