United States District Court, D. Nevada
JAMES D. NOLAND JR., Plaintiff,
ORGANO GOLD INTERNATIONAL, INC., et al., Defendants.
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE
before the court is defendants Organo Gold Enterprises, Inc.,
Organo Gold International, Inc., Bernardo Chua, and Holton
Buggs, Jr.'s motion to quash deposition notices and for
protective order (ECF No. 89), filed on November 20, 2018.
Plaintiff James D. Noland Jr. filed a response (ECF No. 92)
on December 14, 2018. Defendants filed a reply (ECF No. 103)
on December 21, 2018.
before the court is plaintiff's motion to amend the
discovery plan and scheduling order (ECF Nos. 110, 111, 112),
filed on January 31, 2019. Defendants Jane Doe Buggs and
Holton Buggs, Jr. filed a response (ECF No. 113) on February
14, 2019. Defendants Bernardo Chua, Organo Gold International
Inc., and Organo Gold Enterprises Inc. filed a response (ECF
No. 114) on February 14, 2019. Plaintiff filed a reply (ECF
Nos. 115, 116) on February 21, 2019.
case arises from allegations that plaintiff's partners,
defendants Bernard Chua and Shane Morand, conspired with
defendants Holton Buggs Jr. and Jamie Foo to defraud
plaintiff of his ownership shares in Organo Gold Enterprises
Inc. (First Amended Compl. (ECF No. 78).) Plaintiff alleges
violations of federal and state RICO statutes, along with
conspiracy to violate RICO statutes. (Id.) Plaintiff
also alleges that the underlying subject matter in this
action is similar to a lawsuit originally initiated in
Canada. (Id.) Plaintiff alleges that he
initiated the instant action because Canada does not have
RICO statutes or an equivalent that permits a civil remedy.
(Id.) The court issued a scheduling order in this
case, providing January 30, 2019 as the discovery cut-off
deadline. (Scheduling Order (ECF No. 49).)
Organo Gold International, joined by Chua, filed a motion for
summary judgment, arguing that plaintiff's claims are
time-barred because he waited nine years to file the
complaint in this action. (Mot. for Summary Judgment (ECF No.
82).) Plaintiff responds that his claims are subject to
equitable tolling because of his ongoing litigation in Canada
and his use of Canadian attorneys unfamiliar with United
States RICO statutes. (Resp. (ECF No. 101).) Plaintiff also
argues that defendants engaged in fraudulent concealment and
that the fraudulent actions were not discovered until 2018.
(Id.) Defendants reply that the statute of
limitations began to run once plaintiff discovered the
alleged injury in 2009, and that plaintiff has not met his
burden in demonstrating fraudulent concealment. (Reply (ECF
Organo Gold Enterprises, Inc., Organo Gold International,
Inc., Bernardo Chua, and Holton Buggs, Jr. now move to stay
discovery pending the resolution on Organo Gold
International, Inc. and Chau's motion for summary
judgment (ECF Nos. 82-84, 87) and to quash plaintiff's
depositions notices. (Joint Mot. to Quash (ECF No. 89).)
Plaintiff responds that the request to quash deposition
notices is moot because the deposition dates passed without
an appearance from defendants. (Resp. (ECF No. 101).)
Plaintiff also argues that discovery should not be stayed
because defendants are unlikely to succeed on the pending
motion for summary judgment. (Id.) Defendants reply
that discovery is unnecessary to resolve the underlying
motion for summary judgment, and that the motion for summary
judgment is likely to be granted. (Reply (ECF No. 103).)
Lastly, defendants concede that the request to quash the
deposition notices is moot. (Id.)
January 31, 2019, at 12:04 a.m., plaintiff filed the instant
motion requesting a 60-day extension of discovery deadlines,
including the January 30, 2019 discovery cut-off date, and
requesting that the court strike defendants' answers.
(Mot. to Amend (EC No. 110).) Defendants Jane Doe Buggs,
Holton Buggs, Jr., Bernardo Chua, Organo Gold International
Inc., and Organo Gold Enterprises Inc., do not oppose an
extension of deadlines after January 31, 2019, the date that
plaintiff filed the motion. (See Resp. (ECF Nos.
113, 114).) Plaintiff replies that he has demonstrated
excusable neglect for an extension of the discovery cut-off
deadline, and plaintiff also withdraws his request to strike
defendants' answers. (Reply (ECF Nos. 115, 116).)
MOTION TO QUASH DEPOSITION NOTICES AND TO STAY
move to quash deposition notices and to stay discovery
pending a ruling on the motion for summary judgment. However,
in the course of briefing this motion, the parties agree that
the request to quash the deposition notices is moot. As such,
the court denies the request to quash and will only resolve
the motion to stay.
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.
Ultimately, the party seeking the stay “carries the
heavy burden of making a ‘strong showing' why
discovery should be denied.” Turner, 175
F.R.D. at 556 (quotation omitted).
conducting a primary peek of defendants Organo Gold
International and Chua's motion for summary judgment, the
court in its discretion finds that a stay of discovery is
warranted. The pending motion for summary judgment, if
granted, would dispose of this case in its entirety. Further,
the motion for summary judgment can be decided without
additional discovery. The central issues in defendants'
summary judgment are whether plaintiff's claims are
time-barred by the statute of limitations, and whether
plaintiff is entitled to equitable tolling. Whether or not to
stay discovery is a close question, given that the parties
dispute when plaintiff was aware of the injury caused by
defendants' alleged actions. However, additional
discovery will not aid the court in determining whether the
claims are time-barred or whether equitable tolling is
applicable. As such, the court will stay discovery pending
the outcome of the motion for summary judgment.
MOTION TO ...