B&G Foods North America, Inc. v. Embry et al
ORDER signed by Chief District Judge Kimberly J. Mueller on 8/1/2022 DENYING 50 Superseding Joint Status Report. Defendants shall file their motion to dismiss within 21 days of this order. If in its response to the motion plaintiff wishes to seek expedited discovery, it may do so through the filing of an appropriate request or counter-motion. See Local Rule 230(e).(Perdue, C.)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
B&G Foods North America, Inc.,
Kim Embry, et al.,
The court dismissed plaintiff B&G Foods’ § 1983 lawsuit against defendants Kim Embry
and Noam Glick, finding the Noerr-Pennington doctrine barred its complaint. See Order at 5, ECF
No. 33. The court denied leave to amend. Id. On appeal, the Ninth Circuit held the court erred in
dismissing the complaint without leave to amend “[b]ecause it is unclear whether B&G could allege
the application of a sham exception to the Noerr-Pennington doctrine in an amended complaint.”
Ninth Cir. Op. at 26, ECF No. 41. The Ninth Circuit therefore remanded to allow B&G an
opportunity to amend. Id. B&G has now filed its first amended complaint. See ECF No. 45.
Following remand, this court held a status conference to discuss case scheduling, and it
directed the parties to file a joint status report proposing a briefing schedule for defendants’ motion
to dismiss plaintiff’s first amended complaint “and any other related motions.” See Mins., ECF
No. 47. In the joint status report, B&G requests expedited discovery on numerous issues prior to
defendants’ filing a motion to dismiss. See JSR at 2–3, ECF No. 50 (listing thirteen bullet points).
Defendants request a stay of discovery until the court rules on its motion to dismiss. See id. at 6.
Both requests are premature for the same reason: Defendants have not filed their motion to
dismiss. B&G may be entitled to expedited discovery if its purportedly “sham” allegations raise
factual issues requiring discovery. See Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (noting
district court did not abuse its discretion by denying discovery during pendency of motion to
dismiss when plaintiff’s claims did not raise factual issues that “required discovery for their
resolution”) (citation omitted). On the other hand, defendants may be entitled to a stay of discovery
if the court is “convinced” their impending motion to dismiss will dispose of the case. See, e.g.,
GTE Wireless, Inc. v. Qualcomm, Inc., 192 F.R.D. 284, 286 (S.D. Cal. 2000) (noting court should
“take a preliminary peek at the merits of the allegedly dispositive motion to see if on its face there
appears to be an immediate and clear possibility that it will be granted” (citation omitted)); Wood
v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) (per curiam) (affirming district court’s stay of
discovery in light of a pending motion to dismiss where “there was a real question” whether
plaintiff’s claim had merit). Because both analyses presuppose defendants’ having filed their
dispositive motion, and because there is no dispositive motion pending in this case, the court denies
both requests as premature.
Defendants shall file their motion to dismiss within twenty-one days of this order. If in its
response to the motion plaintiff wishes to seek expedited discovery, it may do so through the
filing of an appropriate request or counter-motion. See Local Rule 230(e).
IT IS SO ORDERED.
DATED: August 1, 2022.
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