United States District Court, D. Nevada
REES SCULLY MANSUKHANI, LLP Robert S. Larsen, Esq. Attorneys
SBAIH & ASSOCIATES, LTD, Jesse M. Sbaih, Esq. Attorneys
JOINT STIPULATION AND PROPOSED ORDER TO STAY
DISCOVERY PENDING COURT'S RULING ON MOTION TO DISMISS
(ECF NO. 4) AND MOTION FOR REMAND TO STATE COURT (ECF NO.
Kalifano, Inc. (“Kalifano”) and Defendant Sierra
Health and Life Insurance Company, Inc.
(“Sierra”) (collectively “Parties”),
by and through their respective counsel, stipulate and
respectfully request the Court stay written discovery and
depositions (“Joint Stipulation”) pending the
Court's ruling on Sierra's Motion to Dismiss (ECF No.
4) and Kalifano's Motion for Remand to State Court (ECF
No. 7) (collectively “Pending Motions”). The
Parties believe the proposed stay is in the Parties' and
the Court's interest of minimizing cost, and efficiency.
support of this request, the Parties provide the following
information for the Court's consideration:
Pursuant to Local Rule 26-1(a), “plaintiff's
attorney must initiate the scheduling of the conference
required by Fed.R.Civ.P. 26(f) to be held within 30 days
after the first defendant answers or otherwise
appears.” On April 25, 2019, Kalifano originally filed
its Complaint in the Eighth Judicial District Court in Clark
County, Nevada, No. A-19-793644-C. On May 30, 2019, Sierra
filed its Petition for Removal. (ECF No. 1.) On June 4,
Sierra filed its Motion to Dismiss. (ECF No. 4.) On June 19,
2019, Kalifano filed its Motion to Remand to State Court.
(ECF No. 7.)
Pursuant to Local Rule 26-1(d), “[f]ourteen days after
the mandatory Fed.R.Civ.P. 26(f) conference, the parties must
submit a stipulated discovery plan and scheduling order.
July 15, 2019, the Parties held a conference to discuss
discovery and case deadlines, and agreed to: (1) complete
initial disclosures within twenty-one (21) days of filing
this Joint Stipulation, and (2) enter a stipulation to extend
discovery deadlines for written discovery and depositions
(“Stay”) for the following reasons:
Sierra's Motion to Dismiss (ECF No. 4) seeks to dismiss
this action in its entirety because Plaintiff brings multiple
state law claims related to premium Kalifano paid to Sierra
on behalf of a Kalifano employee (ECF No. 1). Sierra alleges
that Kalifano's claims are governed under the civil
enforcement provisions of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 28 U.S.C.
§§ 1001 et seq. Sierra also alleges that any state
law claims are preempted by ERISA and should be dismissed.
Kalifano disputes the arguments raised in Sierra's Motion
to Dismiss (ECF No. 6), and alternatively, seeks leave to
Amend/Correct Complaint (ECF No. 9).
Kalifano's Motion for Remand (ECF No. 7) seeks remand
because it alleges that its claims do not satisfy the ERISA
preemption test. Kalifano alleges Kalifano's employee is
not a participant and his claims could not have been brought
under ERISA § 502(a)(1)(B), Kalifano also claims that
it's state claims are rooted in Sierra's
misrepresentation and impose duties independent of ERISA, and
are therefore not subject to ERISA preemption. Sierra
disputes the arguments raised in Kalifano's Motion for
Remand. (ECF No. 14.)
Parties agree it is in the best interest of all parties to
await the Court's ruling on the Pending Motions prior to
setting discovery deadlines and incurring the time and
expense of propounding written discovery and conducting
depositions in the event the Court dismisses the action in
whole or in part, or grants the remand. The Parties do not
waive any argument and/or requested relief by agreeing to the
Federal district courts have “wide discretion in
controlling discovery.” Little v. City of
Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In
exercising this discretion, a district court may stay
discovery based on the filing of a motion that is
“potentially dispositive of the entire case.”
Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 601 (D.
Nev. 2011). See also Turner Broadcasting Sys. v. Tracinda
Corp., 175 F.R.D. 554, 556 (D. Nev. 1997)
(“Whether to grant a stay is within the discretion of
the Court. . .”); Ministerio Roca Solida v. U.S.
Dep't of Fish & Wildlife, 288 F.R.D. 500, 506
(D. Nev. 2013) (“discovery should be stayed while
dispositive motions are pending only when there are no
factual issues in need of further immediate exploration, and
the issues before the Court are purely questions of law. .
.”) (internal quotations omitted). The Pending Motions
are dispositive and raise purely legal questions that can be
resolved without discovery. It is within the Court's
power to grant a stay of discovery (other than the initial
disclosures) at this time.
parties agreed to the Stay to avoid the burden and expense of
time-consuming and costly discovery. Rule 1 of the Federal
Rules of Civil Procedure provides that the federal rules of
practice should be “construed and administered to
secure the just, speedy, and inexpensive determination of
every action and proceeding” (emphasis added). Staying
discovery as requested in this case is consistent with the
spirit and intent of the Federal Rules of Civil Procedure.
Further, should the Court agree that this entire matter is
governed under ERISA, and Plaintiff files an Amended
Complaint alleging ERISA-based claims, it is the
Defendants' position that discovery will be much narrower
than if the state law claims remain part of the litigation.
See, e.g., Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955, 970 (9th Cir. 2006) (holding that
Ninth Circuit case law limits a district court to the
administrative record when the court is reviewing a case on
the merits for an abuse of discretion); Neerdaels v.
Group Short Term Disability & Long Term Disability Plan
for Employees of Akamai Techs., Inc., 261 Fed.Appx. 7
(9th Cir. 2007) (affirming denial of motion to admit evidence
outside the administrative record under an abuse of
discretion standard of review). If the Stay is not granted,
the parties will be required to engage in and incur the costs
of discovery on issues which may be unnecessary, burdensome
order to preserve the parties' resources, and to promote
judicial economy, the parties have agreed, subject to the
Court's approval, to a Stay until this Court rules on the
Pending Motions. The parties further stipulate to delayed
submission of the stipulated discovery plan and ...