United States District Court, D. Nevada
JAMES M. FLAGG, Plaintiff,
AARON C. ROUSE, Defendant.
ORDER MOTION TO STAY [ECF NO. 21]
FERENBACH, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant Aaron Rouse's Motion to Stay
Discovery. (ECF No. 21). For the reasons discussed below,
Defendant's motion is granted.
complaint, Plaintiff James Flagg brings a Bivens
claim Defendant Rouse, Special Agent in charge of the
FBI's Las Vegas office, and several Does FBI employees.
(ECF No. 1 at 1-2). Plaintiff asserts that his Fourth, Fifth,
Sixth, and Ninth Amendment rights have been violated.
(Id. at 5, 7). “Plaintiff believes that the
FBI in Los Angeles and Las Vegas, Nevada have been conducting
an operation to monitor Plaintiff and determine, using
psychological warfare techniques, what Plaintiff knows about
any classified material.” (Id. at 4).
“Plaintiff is asking this court to issue a cease and
desist or restraining order to bring an end to all FBI action
against Plaintiff…and that the court restrain the FBI
from ever releasing information about this operation.”
has moved to dismiss the complaint. (ECF No. 20). Defendant
argues that “the Court lacks personal jurisdiction over
[Defendant], Plaintiff's Complaint is time-barred, and
Plaintiff has failed to state a plausible Bivens
action.” (Id. at 1). Among his other
arguments, Defendant asserts that he was not properly served
with the complaint. (Id. at 3-4). Plaintiff does not
appear to challenge this assertion, but states that he
believes he has served Defendant properly by only serving the
United States, because he sued Defendant in his official
capacity. (ECF No. 22 at 1-2). Defendant also argues that
Plaintiff's complaint improperly seeks injunctive relief,
which is not permitted in a Bivens action. (ECF No.
20 at 7). Plaintiff asserts that relevant case law
“leaves open the possibility of an action for
injunctive relief in the Official Capacity of a Federal
Official.” (ECF No. 22 at 2-3).
now moves to stay discovery. (ECF No. 21). Defendant argues
that its motion to dismiss is potentially dispositive of the
entire case and can be decided without discovery.
(Id. at 3). In response, Plaintiff asks that the
Court allow limited discovery regarding the FBI's alleged
investigation into Plaintiff. (ECF No. 23 at 1-2).
“Plaintiff has reason to believe that the limited
discovery…will allow the court to assess the veracity
of Plaintiff's claims.” (Id. at 2).
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). 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.
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.
prejudging the outcome of the motion to dismiss, the Court
finds there is a high likelihood that the complaint will be
significantly limited in scope if not eliminated when the
pending motion to dismiss is decided. There appears to be
merit in several of Defendant's arguments against
Plaintiff's claims. Plaintiff appears to concede that he
has not personally served Defendant (ECF No. 22 at 1-2),
which is required under Federal Rule of Civil Procedure
4(i)(3). Failing to serve a defendant with process can be
grounds to dismiss a case. See Brown v. Washington,
752 Fed.Appx. 402, 404 (9th Cir. 2018). In addition,
“Bivens is both inappropriate and unnecessary
for claims seeking solely equitable relief against actions by
the federal government.” Solida v. McKelvey,
820 F.3d 1090, 1094 (9th Cir. 2016). Bivens claims
seek monetary relief, rather than injunctive relief.
Id.; see also Fazaga v. Fed. Bureau of
Investigation, 916 F.3d 1202, 1245 (9th Cir. 2019);
Ziglar v. Abbasi, 137 S.Ct. 1843, 1861 (2017).
Plaintiff complaint seeks solely injunctive relief (ECF No. 1
at 4), and does not appear to be a proper Bivens
the motion to dismiss rests on legal rather than factual
grounds, Defendant's arguments will not need further
discovery to resolve. After a preliminary peek and in light
of the goals of Federal Rule of Civil Procedure 1 to
“secure the just, speedy, and inexpensive”
determination of all cases, the Court finds that the motion
to dismiss demonstrates good cause to stay discovery.
and good cause appearing, IT IS ORDERED that Plaintiff's
Motion to Stay Discovery (ECF No. 21) is GRANTED. Discovery
is stayed during the pendency of Defendant's motion to
FURTHER ORDERED that a status conference is scheduled for
10:00 AM, December 16, 2019 in Courtroom 3D, Lloyd D. George
Federal Courthouse, 333 ...