Allen v. Virga et al

Filing 58

ORDER signed by Magistrate Judge Allison Claire on 09/17/14 that defendants motion for a protective order staying discovery 54 is granted. Discovery in this case is stayed pending the resolution of the pending motion to dismiss. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN ALLEN,

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No. 2: 12-cv-1583 TLN AC P
Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER
Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S. § 1983. In his

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second amended complaint, plaintiff alleges that defendants Rabbi Korik and Warden Virga

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denied him access to a kosher diet in violation of his First Amendment right to the free exercise

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of religion and his rights under the Religious Land Use and Institutionalized Persons Act. ECF

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No. 49. Pending before the court is defendants’ motion for a stay of discovery pending

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adjudication of their motion to dismiss.1 ECF No. 54.

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I.

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Defendants’ Motion for a Protective Order Staying Discovery
On May 15, 2014, defendants moved for a protective order to stay discovery, asserting

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that plaintiff had served his first set of interrogatories on defendants Korik and Virga. ECF No.

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54-1 at 1. Defendants contend that they seek the stay, in the interests of judicial economy,

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Defendants have brought a motion to dismiss plaintiff’s second amended complaint pursuant to
Fed. R. Civ. P. 12(b)(6), which plaintiff has opposed. ECF Nos. 52, 55.
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because the motion is potentially dispositive of one or all of plaintiff’s claims, can be decided

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absent additional discovery, could eliminate needless expenditure in responding to discovery

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requests and no prejudice would arise from a brief delay. Id. at 2-4. Plaintiff has not opposed the

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motion.

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II.

Standards Governing Motion to Stay
The scope of discovery under Fed.R.Civ.P. 26(b)(1) is broad. Discovery may be obtained

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as to “any nonprivileged matter that is relevant to any party's claim or defense---including the

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existence, description, nature, custody, condition and location of any documents or other tangible

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things and the identity and location of persons who know of any discoverable matter.” Id.

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Discovery may extend to relevant information not admissible at trial “if the discovery appears

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reasonably calculated to lead to the discovery of admissible evidence.” Id. The court, however,

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may limit discovery if it is “unreasonably cumulative or duplicative,” or can be obtained from

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another source “that is more convenient, less burdensome, or less expensive”; or if the party who

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seeks discovery “has had ample opportunity to obtain the information by discovery”; or if the

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proposed discovery is overly burdensome. Fed.R.Civ.P. 26(b)(2)(C)(i), (ii) and (iii).

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A party may seek a protective order that stays discovery pending resolution of a

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potentially dispositive motion such as a motion to dismiss pursuant to Federal Rule of Civil

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Procedure 12(b)(6). See, e.g., Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir.2002) (affirming

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district court's grant of protective order staying discovery pending resolution of motion to dismiss

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filed pursuant to Federal Rule of Civil Procedure 12(b)(6)). District courts may exercise “wide

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discretion in controlling discovery.” Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir.1988).

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The Federal Rules provide that good cause is required in order for a party to obtain a

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protective order. Fed. R. Civ. P. 26(c); Kiblen v. Retail Credit Co., 76 F.R.D. 402, 404 (E.D.

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Wash. 1977). “Good cause” exists when justice requires the protection of “a party or person from

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any annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.

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26(c)(1). To prevail on a motion for a protective order, the party seeking the protection has the

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burden to demonstrate “particular and specific demonstration[s] of fact, as distinguished from

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conclusory statements . . . .” Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D.
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652, 653 (D.Nev. 1989); Kamp Implement Co. v. J.I. Case Co., 630 F. Supp. 218, 219 (D. Mont.

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1986).

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The Ninth Circuit has not articulated a clear standard for staying discovery in the face of a

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pending, potentially dispositive motion. Mlejnecky v. Olympus Imaging Am., Inc., No. 2:10-cv-

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2630-JAM-KJN, 2011 WL 489743 at *6 (E.D. Cal. 2011). “However, federal district courts in

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California have applied a two-part test when evaluating such a request for a stay.” Id.; Lowery v.

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F.A.A., 1994 WL 912632, *3 (E.D. Cal. 1994). “First, the pending motion must be potentially

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dispositive of the entire case, or at least dispositive on the issue at which discovery is aimed.”

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Mlejnecky, *6. In the second part of the test, the court must determine whether the potentially

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dispositive pending motion can be decided without additional discovery. Id. If these two prongs

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are satisfied by the moving party, the court may issue a protective order. Id. If either prong of

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the test is not met, discovery should proceed. Id.

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III.

Discussion
In the instant case, defendants contend that their pending motion is potentially dispositive

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or, at a minimum, possibly dispositive on the issue at which the discovery is directed. ECF No.

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54-1 at 3 (citing Mlejnecky, 2011 WL 489743 at *6 (citations omitted)). They maintain that the

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motion can be decided without additional discovery because on a motion to dismiss, the court

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considers the allegations of the operative complaint and not evidence acquired by way of

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discovery. Id. at 4 (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 654 (U.S.

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1999); Mlejnecky at *10). Even if the motion does not resolve this case, as defendants further

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observe, if any portion of their motion is granted, the claims and the scope of permissible

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discovery may be narrowed. Id.

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The court finds that both prongs of the test are met in that the motion is potentially case

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dispositive or at a minimum may narrow the issues. In addition, the motion can be adjudicated

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without further discovery.

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Moreover, a Scheduling and Discovery Order has not yet issued in this case. This court

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had imposed a stay on discovery as to defendant Korik, ECF No. 47, which was lifted upon the

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court’s screening of the second amended complaint. ECF No. 51. However, the court now finds
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that defendants should not be subjected to the undue burden or expense of responding to

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discovery which may ultimately prove not to be reasonably calculated to lead to the discovery of

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relevant evidence.

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Accordingly, IT IS ORDERED that defendants’ motion for a protective order staying

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discovery (ECF No. 54) is GRANTED. Discovery in this case is stayed until resolution of the

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pending motion to dismiss.

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DATED: September 17, 2014

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