United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendant Amalgamated Transit Union
International's motion to stay discovery (ECF No. 39),
filed on December 8, 2017. Plaintiff Jose Mendoza, Jr. filed
a response (ECF No. 49) on December 22, 2017, and Defendants
filed a reply (ECF No. 50) on December 29, 2017.
before the Court is Plaintiff's motion to stay the
deadline to amend pleadings (ECF No. 53), filed on February
5, 2018. Defendants filed a response (ECF No. 54) on February
20, 2018, and Plaintiff filed a reply (ECF No. 55) on
February 27, 2018.
case arises from Plaintiff's dispute with the Amalgamated
Transit Union International (“International”).
Plaintiff formerly served as the president of Amalgamated
Transit Union Local 1637 (“Local 1637”), which is
a local union that is affiliated with International. Between
2010 and 2016, Plaintiff had multiple disputes with
International, many of which revolved around the appropriate
way to read Local 1637's bylaws. Two primary
disagreements between Plaintiff and International concern the
appropriate rate of pay for the president of Local 1637 and
whether the president could designate the secretary-treasurer
position as less than fulltime. Article 4 of Local 1637's
bylaws governs the president's rate of pay. (ECF No.
7-11). Plaintiff asserts that the version of the 2012 local
bylaws sent to him by International president Lawrence Hanley
reads “The President/Business Agent shall be paid at a
daily rate of 8 hours times the highest hourly rate paid to
an employee in their respective job classification for 40
hours per week to perform duties of the office.” (ECF
No. 7-11). Plaintiff contends that International has the
wrong version of Article 4 on file. (ECF No. 7). Plaintiff
believes that the correct version of Article 4 omits the term
“respective.” (ECF No. 7). Plaintiff thus reads
the bylaw language as entitling plaintiff to the highest rate
of pay of any employee in the union (which is a
mechanic's rate). (ECF No. 7). Plaintiff alleges that
defendant International attempted to limit Plaintiff's
pay to the highest hourly rate paid to an employee in
Plaintiff's job classification of driver. (ECF No. 7).
The dispute over whether president could designate the
secretary-treasurer position as less than full time turns on
whether Local 1637 ever adopted amendments to its bylaws.
(ECF No. 7). Plaintiff contends that Local 1637's
executive board's adopted bylaws that would allow the
president to designate the secretary-treasurer as less than
full time. (ECF No. 7). Plaintiff alleges that International
would not approve of the adopted bylaws. (ECF No. 7).
Motion to Stay Discovery
moves to stay discovery in this case pending the Court's
decision on its motion to dismiss (ECF No. 38). Defendant
argues that a stay would conserve resources since its motion
to dismiss will likely be granted in its entirety. Plaintiff
argues that the motion to dismiss is unlikely to be granted,
so discovery should proceed.
within the Court's broad discretion whether to stay
discovery pending resolution of a dispositive motion. See
Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir.
1988). 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). The party seeking a 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) (noting that a stay of
discovery may be appropriate where the complaint was
“utterly frivolous, or filed merely for settlement
“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). The Tradebay
standard is a “heavy burden, ” not easily met.
Id. See also, Kor Media Grp., LLC v. Green, 294
F.R.D. 579, 583 (D. Nev. 2013). Applying this standard
requires the Court to take a “preliminary peek”
at the motion to determine its likelihood of success.
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 the court to secure the “just,
speedy, and inexpensive determination” of the action as
required by Rule 1 of the Federal Rules of Civil Procedure.
Id. 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,
Plaintiff argues that the instant motion is not potentially
dispositive, because he believes he has effective arguments
as to why each claim will, or should survive the motion to
dismiss. However, Plaintiff does not appear to contradict the
assertion that the motion seeks to dismiss all of
Plaintiff's claims. The Court finds that the motion to
dismiss is potentially dispositive of all claims. As for
discovery, Plaintiff argues that further discovery is
necessary in order to develop his claims in this case, but
that is not the relevant standard for this motion. Plaintiff
does not contest Defendant's assertions that no discovery
is necessary for the Court to decide the motion to dismiss.
Therefore, the only issue left for the instant motion is
whether the Court is convinced by a “preliminary
peek” that Defendant's motion to dismiss will be
seeks dismissal of the complaint under Rule 12(b)(6), which
requires a plaintiff “to provide the grounds of his
entitlement for relief.” Satisfying this requirement
“requires more than labels and conclusions, and a
formulaic recitation of the elements of the cause of action
will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). To survive a motion to dismiss,
“factual allegations must be enough to raise the right
to relief above the speculative level.” Id.
Additionally, “[i]n alleging fraud or mistake, a party
must state with particularity the circumstances constituting
the fraud or mistake.” Fed.R.Civ.P. 9(b). Such
fundamental deficiencies “should be exposed at the
point of minimum expenditure of time and money by the parties
and the Court.” Id. at 558.
argues that Plaintiff's complaint fails to plead
non-conclusory facts to support his conclusion that
International did not follow the procedures set forth in its
constitution or did not hold a fair hearing. Def.'s Mot.
at p. 3-4. Specifically, Defendant argues that since
Plaintiff alleges Defendant's actions were fraudulent, he
must plead specific facts to support this theory. However, a
review of Plaintiff's complaint shows a number of
specific allegations to support Plaintiff's fraud claims.
Plaintiff alleges that Defendant “unilaterally altered
the Local 1637 By Laws to support charges against [Plaintiff]
and to support placing Local 1637 into trusteeship by adding
the word “respective” to Article 4.”
Pl.'s Compl., at ¶ 101. Plaintiff further alleges
that Defendants knew that Article 4 of the Local 1637 By Laws
was never amended during the relevant time periods, yet made
representations to the contrary at a trusteeship hearing to
support the removal of Mr. Mendoza from office. Id.
At ¶¶ 102-103. Plaintiff's complaint contains
other similarly specific allegations. For the purposes of its
“preliminary peek, ” the Court is not convinced
that Defendant's motion to dismiss will prevail on the
issue of inadequately pled allegations of fraud. The Court
will therefore deny the motion to stay discovery.
Motion to Stay Deadlines
motion to extend a deadline made within 21 days of the
subject deadline must be supported by a showing of good
cause. Further, “[a] request made after the expiration
of the subject deadline will not be granted unless the movant
also demonstrates that the failure to act was the result of
excusable neglect.” Local Rule 26-4. Here, the
Court's scheduling order (ECF No. 31) set the deadline to
amend pleadings and add parties as February ...