McMillan v. Pfile, et al.

Filing 48

ORDER signed by Magistrate Judge Kendall J. Newman on 3/25/2015 GRANTING defendants' 46 motion for an extension of time to file a response to plaintiff's second amended complaint; defendants shall file their response no later than 4/29/2015; and DENYING defendants' 47 motion for a discovery stay, without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWIN MCMILLAN,

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Plaintiff,

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No. 2:13-cv-00578 MCE KJN P

v.

ORDER

S. RINGLER, et al.,

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Defendant.

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Plaintiff is a state prisoner proceeding, in forma pauperis and without counsel, with a civil

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rights action pursuant to 42 U.S.C. § 1983. On March 16, 2015, plaintiff filed his second

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amended complaint herein. (ECF No. 45.) Defendants’ deadline to file a response is March 30,

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2015.

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On March 18, 2015, defendants filed a motion to extend the deadline by which they must

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file a response to the second amended complaint. (ECF No. 46.) In support of this motion,

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defendants’ counsel has filed a declaration in which she avers that she is preparing for a federal

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trial set to commence on April 6, 2015, as well as an appellate oral argument set for April 13,

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2015. (ECF No. 46-1.) Good cause appearing, defendants’ motion for an extension of time in

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which to file a response will be granted.

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On March 18, 2015, defendants also filed an ex parte application for a stay of discovery.

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(ECF No. 47.) In support of the application, defendants’ counsel avers that defendants may file

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another motion to dismiss in response to the second amended complaint, which might have the

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effect of narrowing the scope of discovery or terminating the action altogether. (ECF No. 47-1.)

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Defendants therefore seek a stay of discovery until such time as they file an answer herein.

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Federal Rule of Civil Procedure 26(c) governs the granting of protective orders for parties

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from whom discovery is sought. A party bringing a motion under Rule 26(c) carries a “heavy

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burden” and must make a “strong showing” of good cause for the issuance of a protective order.

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Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). It is well-settled that Rule 26

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does not provide for blanket stays of discovery simply because a potentially-dispositive motion is

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pending. See, e.g., Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990) (“Had the

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Federal Rules contemplated that a motion to dismiss under Fed.R.Civ.Pro. 12(b)(6) would stay

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discovery, the Rules would contain a provision to that effect.”); Skellercup Indus. Ltd. v. City of

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Los Angeles, 163 F.R.D. 598, 600 (C.D. Cal. 1995) (“[D]efendant . . . has not made a ‘strong

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showing’; rather, defendant . . . has done no more than to argue in conclusory fashion that its

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motion to dismiss will succeed.”); Huene v. U.S. Dept. of Treasury, No. 2:11–cv–2110-JAM-AC,

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2013 WL 417747 (E.D. Cal. Jan. 31, 2013) (“An overly lenient standard for granting motions to

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stay discovery due to pending dispositive motions would result in unnecessary delay in many

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cases . . . [A] stay of discovery should only be ordered if the court is convinced that a plaintiff

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will be unable to state a claim for relief.”). The party moving for a discovery stay must

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demonstrate a “particular and specific need for the protective order, as opposed to making

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stereotyped or conclusory statements.” Gray, 133 F.R.D. at 40.

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Defendants have failed to make such a showing here. The assertion that “a dispositive

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motion could dispose of the case, or narrow the issues” (ECF No. 47 at 2) (emphasis added), is

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too speculative to meet the standard for issuing the requested stay. By contrast, in Little v. City

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of Seattle, 863 F.2d 681 (9th Cir. 1988), cited by the defendants in support of their motion, the

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Ninth Circuit affirmed a district court’s grant of a discovery stay until the dispositive issue of

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defendant’s immunity was resolved because “[b]ased on the facts presented in [the] case,

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discovery could not have affected the immunity decision.” Id. at 685. Defendants have failed to

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make a similarly particularized showing regarding the inadvisability of permitting discovery to
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proceed herein.

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1. Defendants’ motion for an extension of time to file a response to plaintiff’s second

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amended complaint (ECF No. 46) is granted. Defendants are to file their response no

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later than April 29, 2015.

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2. Defendants’ motion for a discovery stay (ECF No. 47) is denied without prejudice.
Dated: March 25, 2015

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/mcmi0578.36+stay

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