United States District Court, D. Nevada
KAMBRA COOPER, as Heir of, and Special Representative of the Estate of, SHELDON COOPER, deceased, and as Parent and Guardian of JOSEPH RIDER COOPER, a Minor Child, Plaintiff,
SHOE SAFETY HELMET CORPORATION, a Foreign Corporation; SHOEI COMPANY, LTD, a Japanese Corporation; DOES 1 through 20; ROE CORPORATIONS 1 through 20; DOE PARTNERSHIPS 1 through 20; ROE GOVERNMENT ENTITIES 1 through 20, inclusive, Defendants.
J. YOUCHAH MAGISTRATE JUDGE
the Court is Plaintiff's Motion to Compel Defendant's
Fed.R.Civ.P. 26 Disclosures (ECF No. 36), Specially Appearing
Defendant Shoei Company, LTD's (“Shoei”)
Opposition (ECF No. 37) to Plaintiff's Motion to Compel,
and Plaintiff's Reply (ECF No. 40). Also pending is Shoei
Company Ltd.'s Motion for Protective Order to Stay
Discovery Pending the Court's Ruling on its Motion to
Dismiss for Lack of Personal Jurisdiction (ECF No. 39) and
Plaintiff's Statement of Non-Opposition to
Defendant's Motion to Stay (ECF No. 41). The Court has
considered all of these filings and finds as follows.
Shoei seeks to stay all discovery, including initial
disclosures, because its Motion to Dismiss is based on
jurisdictional grounds. Shoei contends that the Court lacks
general and specific personal jurisdiction over the company
because Shoei is a Japanese corporation with its principal
place of business in Japan. Shoei further contends that it
has “not ‘purposefully availed' itself of the
privilege of conducting activities within Nevada such that it
has invoked the benefits and protections of Nevada's laws
. . .” ECF No. 30 at 1-2. Among other facts asserted by
Shoei, it states that it directly sells nothing in and ships
nothing to the U.S., but rather sells to distributors in
Japan who then ship products to the U.S. Id. at 3.
opposition to Shoei's Motion, Plaintiff states that
“Defendant made “efforts . . . to directly or
indirectly serve the market for its products in
[Nevada]” and Defendant's “allegedly
defective merchandise” has “been the source of
injury to its owner [and] to others . . .” in Nevada.
ECF No. 31 at 7. Plaintiff contends that Shoei delivers its
helmets into Nevada's stream of commerce with the
expectation that they will be purchased by Nevada residents.
According to Plaintiff, Shoei does so through its owned and
operated website www.shoei.com/worldwide, which
takes individuals conducting a search for Shoei helmets to
locations in Las Vegas, Nevada where they can be bought.
Id. at 10-15.
responds that the “unauthenticated” web pages in
Plaintiff's Opposition to the Motion to Dismiss do not
establish personal jurisdiction. ECF No. 33 at 3-7.
Specifically, Shoei relies on Mavrix Photo, Inc. v. Brand
Techs, Inc., 647 F.3d 1218, 1229 (9th Cir. 2011) for the
proposition that a passive website, with nothing more, does
not establish purposeful direction of its conduct toward
Nevada. ECF No. 33 at 5. Shoei also argues that Plaintiff
fails to oppose Shoei's demonstration that it has made no
attempt to purposefully avail itself of the benefits of the
State of Nevada. Id. at 8.
a dispositive motion does not warrant a stay of discovery.
Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 601 (D.
Nev. 2011). However, a Court may limit discovery for good
cause and continue to stay discovery when it is convinced
that the plaintiff will be unable to state a claim for
relief. Wood v. McEwen, 644 F.2d 797, 801 (9th Cir.
1981) (citing B.R.S. Land Investors v. United
States, 596 F.2d 353 (9th Cir. 1978)). Under certain
circumstances it is an abuse of discretion to deny discovery
while a dispositive motion is pending (Tradebay, 278
F.R.D. at 602) and, for this reason, a party seeking a stay
of discovery carries the heavy burden of making a strong
showing why the discovery process should be halted.
Turner Broadcasting System, Inc. v. Tracinda Corp.,
175 F.R.D. 554, 556 (D. Nev. 1997). 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. Buckwalter v. Nevada Bd. of Medical
Examiners, No. 2:10-cv-02034-KJD-GWF, 2011 WL 841391, at
*1 (D. Nev. March 7, 2011). In doing so, the court must
consider whether the pending motion is potentially
dispositive of the entire case, and whether that motion can
be decided without additional discovery. Tradebay,
278 F.R.D. at 602.
of course, the parties stipulate to stay all discovery with
the exception of Rule 26 disclosures, which Plaintiff seeks
through her Motion to Compel. Plaintiff, however, does not
seek these disclosures for purposes of opposing Shoei's
Motion to Stay or Motion to Dismiss. In fact, Plaintiff's
Non-Opposition to Defendant's Motion for Stay does not
explain why she seeks Rule 26 disclosures except to explain
that Shoei previously agreed to produce initial disclosures
pursuant to Rule 26. Specifically, in Plaintiff's Reply
in Support of her Motion to Compel, Plaintiff explains that
Shoei was not entitled to effectively grant itself a stay of
four months before filing its actual Motion to Stay. ECF No.
40 at 7. Nevertheless, in her non-opposition, Plaintiff
agrees all discovery, other than initial disclosures, is
appropriately stayed until the outcome of Shoei's Motion
to Dismiss based on a lack of jurisdiction. ECF No. 41.
Court's Order, issued on September 20, 2019 (ECF No. 35),
the Court reminded the parties that on July 5, 2018, the
parties submitted a discovery plan and scheduling order that
was granted and entered by the Court on July 16, 2018 (ECF
No. 24). In that plan and the parties agreed that they
“would exchange initial disclosures, and Plaintiff
would provide a computation of damages, within 14 days after
both of the following events . . . occurred: (a) the Court
rule[d] . . . on Shoei Safety Helmet Corporation's
Amended Motion to Dismiss; and (b) Shoei Company, Ltd.
appear[ed] . . . in this action by filing . . . a responsive
Motion . . . .” ECF No. 35 at 2. As of July 2018, both
those events had occurred. As of the date of Plaintiff's
Motion to Compel, neither party had complied with the
Court's September 25, 2019 Order.
preliminary peek at Shoei's Motion to Dismiss, the
Opposition, and the Reply demonstrates that Shoei's
Motion to Dismiss is potentially case dispositive. Moreover,
it is undisputed that no discovery has been conducted in this
matter and Plaintiff seeks no facts in order to oppose
Shoei's dispositive motion based upon a lack of personal
jurisdiction. Thus, the Motion to Dismiss can be decided
without discovery. As the court in Tradebay
explains, in order for a stay of discovery to be appropriate
“the pending motion must be potentially dispositive of
the entire case or at least dispositive on the issue on which
discovery is sought [and] ... the court must determine
whether the pending potentially dispositive motion can be
decided without additional discovery.” 278 F.R.D. at
602. The Court and the parties agree that this two part test
has been met.
only question that remains is whether there is some reason to
require Shoei (and Plaintiff) to make initial disclosures
(something previously agreed upon). “The district court
has wide discretion in controlling discovery, and its rulings
will not be overturned in the absence of a clear abuse of
discretion. . . . Staying discovery when a court is convinced
that the plaintiff will be unable to state a claim for relief
furthers the goal of efficiency for the court and the
litigants. ….” Id. at 601
(citing Little v. City of Seattle, 863 F.2d, 681,
685 (9th Cir.1988)). Tradebay further confirms that
“a Rule 12(b)(6) motion is to enable a Defendant to
challenge the legal sufficiency of a complaint without
subjecting itself to discovery.” Id. at 602.
the facts to the well settled law in this case demonstrate
that there is no reason to compel Shoei to make its initial
disclosure. There is also no reason to require Plaintiff to
do the same or provide a calculation of damages. The
dispositive motion, seeking dismissal based on a lack of
personal jurisdiction, is a strong one. While this Court
cannot and does not predict the outcome, the parties
stipulation to stay all discovery except Rule 26 disclosures
supports the conclusion that a stay of all discovery is