United States District Court, D. Nevada
J. ALBREGTS UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendants' Motion for Protective
Order (ECF No. 73), filed on September 23, 2019. Plaintiffs
filed a Response (ECF No. 74) on October 7, 2019 and
Defendants filed a Reply (ECF No. 75) on October 15, 2019.
before the Court is Plaintiffs' Motion to Extend
Discovery (ECF No. 76) filed on October 16, 2019, to which
Defendants filed a Response (ECF No. 77) on October 18, 2019
and Plaintiffs filed a Reply (ECF No. 83) on October 25,
before the Court is Defendants' Emergency Motion for a
Stay of Scheduled Depositions Pending Resolution of Motion
for Protective Order (ECF No. 78), filed on October 23, 2019.
On October 23, 2019, the Court granted Defendants'
request to decide the Motion on an expedited basis. (ECF No.
79). On October 24, 2019, Plaintiffs filed a Response (ECF
No. 80). On October 25, 2019, Defendants filed a Reply (ECF
No. 81) and Plaintiffs filed a Motion to Strike the Reply
(ECF No. 82).
parties are familiar with the facts of this matter and the
Court will only summarize them as necessary. Defendants'
Motion for Protective Order (ECF No. 73) is pending before
the Court regarding discovery into the 13-15 causes of action
of the First Amended Complaint. They seek an order to protect
them from written discovery on topics related to the 13-15
causes, which they claim are barred by claim splitting.
Plaintiffs respond that the claim splitting argument is not a
basis for the imposition of a protective order as Plaintiff
Mancini's claims in another action have been dismissed.
(ECF No. 74). Defendants reply that their pending Motions to
Dismiss (ECF Nos. 36 and 38) set forth the reasons why the
claim splitting doctrine applies to bar 13-15 causes of
action and therefore, discovery into these claims that are
the same as those previously alleged in another case should
be barred. (ECF No. 75).
decision is issued on Motion for Protective Order, Defendants
seek of stay of 6 scheduled depositions set for November 1-6,
2019 as Plaintiffs' counsel has indicated that he intends
to question the deponents on the topics that are subject to
the Motion for Protective Order. (ECF No. 78). Plaintiffs
oppose the stay given the prior history of this case,
including Judge Boulware's comments at a February 22,
2019 hearing. (ECF No. 26). Plaintiffs highlight that Judge
Gordon denied Defendants' request to consolidate this
case with Garcia et al v. SEIU et al., Case No.
2:17-cv-1340-APG-NJK, which is now closed. Defendants reply
that three more depositions have been noticed for November
6-7, 2019. (ECF No. 81). Plaintiffs seek to strike
Defendants' reply brief as the Court did not request a
reply brief. (ECF No. 82).
also seek to extend discovery as Defendants have not
responded to Plaintiffs' written discovery regarding the
13-15 causes of action and depositions have been noticed.
(ECF No. 76). In doing so, Plaintiffs request only three
deadlines be extended - discovery cutoff, dispositive
motions, and joint pretrial order - by two months.
(Id.). Defendants respond that no extension is
necessary if the Motion for Protective Order (ECF No. 73) is
granted because the depositions at issue could be conducted
outside of the close of discovery. (ECF No. 77). Plaintiffs
reply that they need additional time to receive the requested
written discovery and conduct the depositions as Defendants
have refused to provide information regarding the alleged
claim-splitting issues that are disputed. (ECF No. 83).
Rule of Civil Procedure 26(b)(1) provides for broad and
liberal discovery. “Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense.” Id. However, a
court may limit discovery via Rule 26(c), which permits the
court to issue a protective order to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense when the party establishes good cause. For
good cause to exist, the party seeking protection bears the
burden of showing specific prejudice or harm will result if
no protective order is granted. See Beckman Indus., Inc.,
v. Int'l. Ins. Co., 966 F.2d 470, 476 (9th Cir.
1992). Rule 26(c) requires more than “broad allegations
of harm, unsubstantiated by specific examples or articulated
reasoning.” Id; see also Foltz v. State
Farm, 331 F.3d 1122, 1130 (9th Cir. 2003) (citing
San Jose Mercury News, Inc., v. District Court, 187 F.3d
1096, 1102 (9th Cir. 1999) (holding that the party must make
a particularized showing of good cause)). The Supreme Court
has interpreted the language of Rule 26(c) as conferring
“broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection
is required.” Seattle Times Co. v. Rhinehart,
467 U.S. 20, 36 (1984). Additionally, the Supreme Court has
acknowledged that the “trial court is in the best
position to weigh fairly the competing needs and interests of
the parties affected by discovery. The unique character of
the discovery process requires that the trial court have
substantial latitude to fashion protective orders.”
deciding whether to grant a stay of discovery, the Court is
guided by the objectives of Rule 1 to ensure a just, speedy,
and inexpensive determination of every action. See
Kidneigh v. Tournament One Corp., 2013 WL 1855764, at *2
(D. Nev. May 1, 2013). “The Federal Rules of Civil
Procedure do not provide for automatic or blanket stays of
discovery when a potentially dispositive motion is
pending.” Tradebay, LLC v. eBay, Inc., 278
F.R.D. 597, 600 (D. Nev. 2011). However, preliminary issues
such as jurisdiction, venue, or immunity are common
situations that may justify a stay. See Twin City Fire
Ins. v. Employers of Wausau, 124 F.R.D. 653 (D. Nev.
1989); see also Kabo Tools Co. v. Porauto Indus.
Co., 2013 WL 5947138, at *1 (D. Nev. Oct. 31, 2013)
(granting stay based on alleged lack of personal
jurisdiction); Ministerio Roca Solida v. U.S. Dep't
of Fish & Wildlife, 288 F.R.D. 500, 506 (D. Nev.
2013) (granting stay based in part on alleged lack of subject
matter jurisdiction). Further, motions to stay discovery
pending resolution of a dispositive motion may be granted
when: (1) the pending motion is potentially dispositive; (2)
the potentially dispositive motion can be decided without
additional discovery; and (3) the Court has taken a
“preliminary peek” at the merits of the
potentially dispositive motion to evaluate the likelihood of
dismissal. See Kor Media Group, LLC v. Green, 294
F.R.D. 579, 581 (D. Nev. 2013).
seeking to stay discovery pending resolution of a potentially
dispositive motion bears the heavy burden of establishing
that discovery should be stayed. See, e.g., Turner
Broadcasting System, 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 value.”);
Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th
Cir. 1975). When deciding whether to issue a stay, a court
must take a “preliminary peek” at the merits of
the dispositive motion pending in the case.
Tradebay, 278 F.R.D. at 602-603. In doing so, a
court must consider whether the pending motion is potentially
dispositive of the entire case, and whether that motion can
be decided without additional discovery. Id. This
“preliminary peek” is not intended to prejudge
the outcome, but to evaluate the propriety of a stay of
discovery “with the goal of accomplishing the
objectives of Rule 1.” Id. (citation omitted).
That discovery may involve inconvenience and expense is not
sufficient, standing alone, to support a stay of discovery.
Turner Broadcasting, 175 F.R.D. at 556. An overly
lenient standard for granting requests to stay would result
in unnecessary delay in many cases.
Defendants' request for a protective order is actually a
request for a stay of discovery until their Motions to
Dismiss (ECF Nos. 36 and 38) are decided. Specifically,
Defendants seek to avoid answering written discovery and
deposition questions on any topics related to Plaintiffs'
causes of action 13-15, which related to Plaintiff
Mancini's claims regarding processing of internal union
charges, report and recommendations of the Hearing Officer,
and amendment of the Local 1107 Constitution. The Court has
carefully weighed Defendants' request and finds that they
have not carried their burden to justify a stay of discovery
or protective order. After taking a preliminary peek at the
pending motions to dismiss, the oppositions, and replies, the
Court is not persuaded that they will be
linchpin of Defendants' Motions to Dismiss is the claim
splitting doctrine, which bars a party from subsequent,
duplicative litigation where the “same
controversy” exists. See, e.g., Single Chip Sys.
Corp. v. Intermec IP Corp., 495 F.Supp.2d 1052, 1057
(S.D. Cal. 2007). Here, the instant case is the later-filed
action and to determine if it is duplicative of ...