Coupons, Inc. v. Stottlemire

Filing 125

MOTION to Stay Discovery Pending Resolution of Defendant's soon-to-be filed Motion to Summarily Enforce Settlement Agreement filed by John Stottlemire. Motion Hearing set for 1/27/2009 10:00 AM in Courtroom 2, 5th Floor, San Jose. (Stottlemire, John) (Filed on 12/19/2008) Text modified on 12/19/2008 (bw, COURT STAFF).

Coupons, Inc. v. Stottlemire

Doc. 125

1 John A. Stottlemire 4509 Wayland Court 2 High Point, NC 27265 Telephone: [phone] Email: [e-mail] Defendant, pro se 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 COUPONS, INC., a California corporation, ) Case No. 5:07-CV-03457 HRL 8 ) Plaintiff, ) DEFENDANT'S NOTICE OF MOTION 9 ) AND MOTION TO STAY DISCOVERY v. ) PENDING RESOLUTION OF HIS SOON10 ) TO-BE FILED MOTION TO JOHN STOTTLEMIRE ) SUMMARILY ENFORCE SETTLEMENT 11 ) AGREEMENT Defendant ) 12 January 27, 2009 ) Date: 10:00 a.m. ) Time: 13 ) Courtroom: 2, 5th Floor Hon. Howard R. Lloyd ) Judge: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defendant's Notice of Motion and Motion to Stay Discovery No. 5:07-CV-03457 HRL -i-

Dockets.Justia.com

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NOTICE TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on January 27, 2009, at 10:00 a.m., before the Honorable

4 Howard R. Lloyd, United States Magistrate Judge, in Courtroom 2, 5th Floor, 280 South 1st Street, 5 San Jose, California the following Motion to Stay Discovery Pending Resolution of Defendant 6 John Stottlemire's soon-to-be filed Motion to Summarily Enforce Settlement Agreement will be 7 heard. 8 9 MOTION Pursuant to Federal Rules of Civil Procedure 26(c), Defendant John Stottlemire

10 ("Stottlemire") hereby moves the Court for a protective order, staying discovery for a short period 11 of time pending resolution of Stottlemire's soon-to-be filed motion to summarily enforce 12 settlement agreement. In support of this motion, the Court is respectfully referred to the 13 accompanying memorandum of points and authorities in support. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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DATED: December 15, 2008 John A Stottlemire Defendant, pro se

/s/

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CONTENTS

2 PROCEDURAL HISTORY.............................................................................................................2 3 MOTION TO STAY DISCOVERY ................................................................................................5 4 STATEMENT OF ISSUES TO BE DECIDED ..............................................................................5 5 INTRODUCTION ...........................................................................................................................5 6 BACKGROUND .............................................................................................................................6 7 8 9 CI's Claims ..........................................................................................................................6 Stottlemire's Motion to Summarily Enforce Settlement Agreement ...................................6 CI's Discovery Requests ......................................................................................................8

10 ARGUMENT .................................................................................................................................11 11 12 13 The Court has the Discretion to Defer the Initiation of Discovery Pending Resolution of a Dispositive Motion .......................................................................11 The Court Should Grant a Protective Order Staying CI's Discovery Requests Pending a Ruling on a Motion to Summarily Enforce Settlement Agreement ......13

14 CONCLUSION ..............................................................................................................................14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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CASES Ameritel Inns v. Moffat Brothers, 2007 WL 1792323 ...................................................................13 B.R.S. Land Investors v. United States, 596 F.2d 353 ...................................................................11 Florsheim Shoe Co. v. United States, 744 F.2d 787 ......................................................................12 GTE Wireless, Inc. v. Qualcomm, Inc., 192 F.R.D. 284 ................................................................13 Hahn v. Star Bank, 190 F.3d 708 ...................................................................................................12 Herbert v. Lando, 441 U.S. 153 .....................................................................................................11 In Re NetFlix Antitrust Litigation, 506 F.Supp.2d 308 ..................................................................14 In Re Valence Technology Securities Litigation, 1994 WL 758688 ..............................................13 Jarvis v. Regan, 833 F.2d 149........................................................................................................11 Johnson v. New York University School of Education, 205 F.R.D. 433 ........................................13 Patterson v. United States, 901 F.2d 927.......................................................................................12 Petrus v. Bowen, 833 F.2d 581 ......................................................................................................11 Rae v. Union Bank, 725 F.2d 478 ..................................................................................................12 Scroggins v. Air Cargo, Inc., 534 F.2d 1124 .................................................................................12 United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72 ...............12 Wagh v. Metris Direct Inc., 363 F.3d 821 .....................................................................................12 OTHER AUTHORITIES Moore's Federal Practice § 26.105[3][c] .......................................................................................12 RULES Fed. R. Civ. P. 26(c) ......................................................................................................................11

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PROCEDURAL HISTORY Coupons, Inc. ("CI") filed its Complaint with this Court on July 2, 2007 alleging violations

3 of the Digital Millennium Copyright Act ("DMCA") 17 U.S.C. § 1201 and related state law claims 4 against defendants John Stottlemire and Does 1-10. 5 Stottlemire filed a motion to extend time to answer the Complaint on July 24, 2007 which

6 was granted in part by this Court, granting Stottlemire until September 24, 2007 in which to 7 answer CI's complaint. 8 CI filed its First Amended Complaint ("FAC") on August 29, 2007 again alleging

9 violations of the DMCA and related state law claims against defendants John Stottlemire and Does 10 1-10. 11 Stottlemire filed responsive pleadings to the FAC on September 24, 2007. The responsive

12 pleadings included Stottlemire's Motion to Dismiss for Failure to State a Claim upon which Relief 13 May Be Granted, or in the Alternative, for Summary Judgment and its supporting Memorandum of 14 Points and Authorities. CI filed its Opposition to Stottlemire's responsive pleadings on November 15 13, 2007. Stottlemire filed his Reply to Opposition to Stottlemire's responsive pleadings on 16 November 20, 2007. The Court, after hearing the responsive pleadings on December 4, 2007, 17 granted in part Stottlemire's Motion to Dismiss and dismissed the First Amended Complaint with 18 leave to amend on December 12, 2007. The Court gave CI until January 2, 2008 to file a Second 19 Amended Complaint. 20 CI filed its Second Amended Complaint ("SAC") on December 27, 2007 again alleging

21 violations of the DMCA, specifically 17 U.S.C. § 1201(a) and 17 U.S.C. § 1201(b); and related 22 state law claims against John Stottlemire and Does 1-10. 23 Stottlemire filed a motion to extend time to answer the SAC on January 14, 2008 which

24 was granted in part by this Court, granting Stottlemire until February 26, 2008 in which to answer 25 CI's SAC. 26 Stottlemire filed responsive pleadings to the SAC on February 26, 2008. The responsive

27 pleadings included Stottlemire's Motion to Dismiss Plaintiff's Second Amended Complaint for 28 Failure to State a Claim upon which Relief May Be Granted and the supporting Memorandum of
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1 Points and Authorities. On March 25, 2008 Amicus Curiae EFF ("Amicus Curiae") filed for Leave 2 to File Amicus Curiae Brief in Support of Defendant's Motion to Dismiss concurrently with Brief 3 Amicus Curiae of Electronic Frontier Foundation in Support of Defendant's Motion to Dismiss. 4 This Court granted Amicus Curiae Motion for Leave to File Amicus Curiae Brief in Support of 5 Defendant's Motion to Dismiss on March 31, 2008. CI and Stottlemire filed a Stipulation to 6 Extend Time to File Opposition and Reply to Motion to Dismiss on March 28, 2008 which was 7 granted by this Court on March 31, 2008 granting CI until April 4, 2008 to file its opposition to 8 Stottlemire's Motion to Dismiss including any response to the proposed amicus brief and granting 9 Stottlemire until April 11, 2008 to reply to CI's opposition. The Court also continued the hearing 10 on Stottlemire's Motion to Dismiss until May 6, 2008. 11 The Court, after hearing responsive pleadings on May 6, 2008 granted in part Stottlemire's

12 Motion to Dismiss CI's Second Amended Complaint for Failure to State a Claim on July 2, 2008 13 and dismissed CI's SAC First Cause of Action with leave to amend, CI's SAC Third Cause of 14 Action with leave to amend, CI's SAC Fourth Cause of Action with leave to amend and CI's Fifth 15 Cause of Action (Conversion) without leave to amend. The Court further ordered CI file an 16 Amended Complaint by July 22, 2008. 17 CI filed its Third Amended Complaint ("TAC") on July 22, 2008 again alleging violations

18 of the DMCA and related state law claims against John Stottlemire and Does 1-10. 19 Stottlemire filed a motion to extend time to answer the TAC on July 28, 2008 which was

20 granted in part by this Court, granting Stottlemire until October 6, 2008 in which to answer CI's 21 TAC. 22 Stottlemire filed responsive pleadings to the TAC on September 23, 2008. The responsive

23 pleadings included Stottlemire's Motion to Dismiss for Failure to State a Claim upon which Relief 24 May Be Granted and the supporting Memorandum of Points and Authorities. CI filed its 25 Opposition to Stottlemire's responsive pleadings on October 7, 2008. Stottlemire filed his Reply 26 to Opposition to Stottlemire's responsive pleadings on October 20, 2008. The Court, after hearing 27 the responsive pleadings on November 4, 2008 denied Stottlemire's Motion to Dismiss however, 28 sua sponte dismissed each of CI's claims against Does 1-10.
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Stottlemire filed a motion to extend time to answer the TAC on November 12, 2008 which

2 was granted by this Court, granting Stottlemire until January 31, 2008 in which to answer CI's 3 TAC. 4 On November 13, 2008 Stottlemire and CI signed a Settlement Agreement which

5 completely settled this then pending action CI filed against Stottlemire. On November 14, 2008 6 CI, through a letter addressed to the Court, informed the Court that Stottlemire and CI had settled 7 the dispute. 8 On November 23, 2008 Stottlemire filed a motion requesting the Court set a Status

9 Conference on December 16, 2008 in the light of a breakdown of communications in reference to 10 the Settlement Agreement CI and Stottlemire fully executed on November 13, 2008. The Court 11 denied the motion and sua sponte set a Case Management Conference for February 17, 2009. 12 On November 24, 2008 CI, again through a letter address to the Court, informed the Court

13 that it was "constrained to proceed with the litigation." 14 On December 5, 2008 CI filed a motion requesting the Court direct the parties to return to

15 early neutral evaluation. The motion is currently pending before the Court and is currently 16 scheduled for January 27, 2009. CI has requested the Court determine the motion without oral 17 argument. 18 19 20 MOTION TO STAY DISCOVERY STATEMENT OF ISSUES TO BE DECIDED Whether the Court should order a Stay of Discovery pending resolution of Stottlemire's

21 soon-to-be filed Motion to Summarily Enforce Settlement Agreement. 22 23 INTRODUCTION Pursuant to Rule 26(c), Federal Rules of Civil Procedure, Stottlemire moves for a

24 protective order, staying discovery for a short period of time until the Court rules on Stottlemire's 25 soon to be filed Motion to Summarily Enforce Settlement Agreement. On or before January 31, 26 2009 Stottlemire will move the Court to Summarily Enforce Settlement Agreement and will assert 27 arguments for why CI cannot proceed in this action against Stottlemire. That motion will be fully 28 briefed and scheduled to be argued soon after the Court ordered Case Management Conference
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1 currently on calendar for February 17, 2009. Courts have broad discretion to stay discovery where 2 a dispositive motion may resolve some or all claims, thus promoting the interests of judicial 3 economy. (Please see Argument, infra). 4 It is particularly appropriate for the Court to exercise its discretion to stay discovery in this

5 instance because CI's discovery requests are unreasonably overbroad and unjustified, even to 6 support the wide-ranging attack on Stottlemire. Stottlemire has quickly reviewed the discovery 7 requests in the short time available and will demonstrate their overbroad nature, to which CI has 8 no right to pursue. 9 10 11 BACKGROUND CI's Claims CI filed this action against Stottlemire and Does 1-10 with this Court on July 2, 2007 and

12 although the Court sua sponte dismissed this action against Does 1-10 on November 6, 2008, CI 13 continues to style this action against the unnamed Doe defendants. Not only does CI blatantly 14 disregard the Court's dismissal of the Doe defendants, a short seven days after the Court dismissed 15 the action against the Does, CI fully settled this action against Stottlemire and released Stottlemire 16 from all claims which have arisen and could arise from this action. Further, acting as sole Judge, 17 Jury and Executioner on November 24, 2008 CI informed the Court that it is "constrained to 18 proceed with the litigation" because of an alleged breach to the Settlement Agreement signed by 19 CI and Stottlemire on November 13, 2008. Without any authority, CI has decided to continue its 20 futile pursuit of Stottlemire and Does 1-10 notwithstanding its fully executed contractual 21 obligations which released Stottlemire from all claims and requires CI to dismiss this action 22 against Stottlemire with prejudice and the Court ordered dismissal of the Doe Defendants. 23 24 Stottlemire's Motion to Summarily Enforce Settlement Agreement As noted, Stottlemire will move the Court to summarily enforce the settlement agreement.

25 In doing so, Stottlemire will identify numerous authorities which require CI to fulfill its 26 contractual obligations. First, the existence and terms of a settlement agreement in this matter are 27 indisputable. On November 13, 2008 the parties signed a complete settlement agreement and there 28 were no material terms left to be negotiated: the parties agreed that CI would dismiss the lawsuit
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1 with prejudice, that Stottlemire would stipulate to the dismissal, that the parties would release all 2 claims for all known or unknown, that each party would bear its own costs and that the terms of 3 the settlement agreement would remain confidential.1 4 Second, shortly after signing the Settlement Agreement, CI prepared a Stipulation for

5 Dismissal with Prejudice Pursuant to Settlement Agreement (See Stottlemire Declaration ¶ 3) and 6 a Mutual Release of Claims (See Stottlemire Declaration ¶ 4) and sent both to Stottlemire for his 7 signature. The Mutual Release of Claims provides in part: 8 9 10 11 12 13 14 15 16 17 18 It is impossible for CI to claim that they did not agree to the terms of the Mutual Release of 19 Claims. Not only did CI prepare the document and send it to Stottlemire, CI also promised "When 20 we receive your signature [on the Mutual Release], we'll file the Stipulation for Dismissal" (See 21 Stottlemire Declaration ¶ 5). In addition, during an exchange of emails which took place between 22 November 21, 2008 and November 27, 2008 CI quoted from the Mutual Release (See Stottlemire 23 Declaration ¶ 6) in an attempt to convince Stottlemire that he had breached the Settlement 24 Agreement. Preparing the Mutual Release, promising to file the Stipulation for Dismissal as soon 25 26 On November 26, 2008 Stottlemire received an email from CI which stated, in part, "Coupons is fine with making everything public regarding the settlement" and therefore fully discloses the 27 terms of the settlement to this Court. (See Stottlemire Declaration ¶ 7). 28
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"Coupons and Stottlemire, and each of them, both individually, on behalf of any of their respective present or former parent, subsidiary or affiliated companies, if any, and on behalf of all of their respective present or former agents, partners, spouses, owners, principals, shareholders, joint venturers, officers, directors, servants, employees, independent contractors, predecessors, successors, heirs, trustees and assigns, do hereby fully and forever release and discharge each other, each others' subsidiaries, affiliates and parent companies, and all of each others' respective or former agents, partners, spouses, owners, principals, shareholders, joint venturers, officers, directors, servants, employees, predecessors, heirs, trustees and assigns, insurers, reinsurers, attorneys, and sureties, of and from each and every claim, demand, action, cause of action, loss, cost, expense or element of damage, of every kind and character, known or unknown, contingent or certain, past, present or future, including but not limited to any claim for malicious prosecution, which arises out of, relates to, or in any way concerns the [civil lawsuit captioned "Coupons, Inc. v. John Stottlemire," United States District Court, Northern District of California, case number 5:07-CV-03457 HRL], or any defenses or counterclaims which could have been brought in the [civil lawsuit captioned "Coupons, Inc. v. John Stottlemire," United States District Court, Northern District of California, case number 5:07-CV-03457 HRL]."

1 as Stottlemire signed the Mutual Release, quoting from the Mutual Release and attempting to 2 enforce its provisions obviously shows CI and Stottlemire had a full meeting of the minds as to the 3 existence and terms of the Mutual Release. 4 Lastly ­ and axiomatically ­ CI cannot claim a breach to the Settlement Agreement gives

5 them the authority to rescind the agreement. CI claims to have rescinded the Settlement 6 Agreement based upon an alleged material breach of the agreement by Stottlemire. CI has claimed 7 that Stottlemire breached the confidentiality provision of the Settlement Agreement by publicly 8 announcing three statements; 1) that CI would dismiss the lawsuit with prejudice against 9 Stottlemire, 2) that Stottlemire "in [his] opinion, kicked [the attorneys] ass," and 3) that no money 10 changed hands. Further, CI has decided as a result of the alleged breach of the Settlement 11 Agreement, CI has suffered damage and CI is entitled to relief in the form of rescinding the 12 Settlement Agreement. CI stands alone in making this decision and plays the part of Judge, Jury 13 and Executioner in determining it is entitled to relief, exactly what that relief should be and how 14 Stottlemire should be punished for the alleged breach. Of course, CI cannot rob Stottlemire of due 15 process and must seek relief in the way all plaintiffs seek it, by filing an action with the Courts. 16 Until such time that a Court decides that CI is entitled to rescind the Settlement Agreement, CI is 17 bound by the terms it agreed to and has released Stottlemire from all claims which have or could 18 have arisen from this action. 19 20 CI's Discovery Requests On or before January 25, 2008, CI and Stottlemire met the requirements of Fed. R Civ. P

21 26(d) and the parties were allowed to seek discovery from any source. 22 On February 6, 2008, the Court set the Case Management Conference Schedule and

23 ordered August 19, 2008 as the Fact Discovery Cutoff. 24 On July 18, 2008, the Court vacated the pre-trial and trial dates set forth in the Case

25 Management Conference Schedule. 26 On November 12, 2008, Stottlemire filed a motion with the Court to extend time to answer

27 CI's Third Amended Complaint. Stottlemire based his motion on facts which included Stottlemire 28 moving to North Carolina, Stottlemire unable to determine how long his belongings would be in an
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1 inaccessible storage facility before being delivered to him and his wife's current medical condition 2 in that she is pregnant and due to give birth at the end of January. The Court granted Stottlemire's 3 motion and gave Stottlemire until January 31, 2009 to answer CI's Third Amended Complaint. 4 On November 13, 2008, CI and Stottlemire signed a Settlement Agreement which provided

5 in part; 1) CI dismiss this action against Stottlemire with prejudice and 2) CI release Stottlemire 6 from all claims, known or unknown which have or could arise from this action. 7 On December 1, 2008, the Court ordered a Case Management Conference for February 17,

8 2009 and ordered the parties file a joint case management statement not later than February 10, 9 2009. The joint case management statement will include a proposed discovery plan which requires 10 Court approval when it is filed. 11 Between the dates of January 25, 2008 and November 23, 2008 the parties did not seek any

12 discovery on one another. 13 On November 24, 2008, CI served a First Request for Production of Documents to

14 Defendant John Stottlemire (Attachment A, hereto) consisting of 21 separate requests, seeking a 15 range of material including material which is irrelevant to CI's claims against Stottlemire. This 16 request for production of documents is due on December 24, 2008 and was served with CI's full 17 knowledge that Stottlemire's belongings (which include the documents requested) would most 18 likely not be available to him. Further, it is obvious from Stottlemire's own filings; Stottlemire 19 freely admits producing software which removed the print limitations set by CI's technological 20 measures as well as his motive for doing so. The question before the Court is not whether 21 Stottlemire produced the software, offered to distribute the software or his motives for doing so. 22 The ultimate question before the Court will be whether CI's technological measure is afforded 23 protection under 17 U.S.C. § 1201. Therefore, the burden or expense of the proposed discovery 24 outweighs its likely benefit, considering the needs of the case, the amount in controversy, the 25 parties' resources, the importance of the issues at stake in the action, and the importance of the 26 discovery in resolving the issues. CI also made this discovery request of Stottlemire after releasing 27 him from all claims on November 13, 2008. 28
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Also, on November 24, 2008, CI sent Stottlemire an email stating "Let's also schedule

2 dates for your and your wife's depositions at our offices [in San Francisco]. How does January 3 12th through the 14th look?" (Attachment B, hereto). CI made this request with full knowledge 4 that 1) Stottlemire and his wife were moving to North Carolina within seven days of sending 5 Stottlemire the request; 2) Stottlemire's wife is not a party to this action; 3) Any city in North 6 Carolina is more than 100 miles from CI's attorney's office in San Francisco; and 4) Stottlemire's 7 wife would successfully squash any attempt to subpoena her deposition. Further, CI has violated 8 and continues to violate Civil Local Rule 30-1 in its attempts to obtain depositions from 9 Stottlemire and Stottlemire's wife by refusing to confer about scheduling of the depositions with 10 Stottlemire. Lastly, CI sent this email with full knowledge that Stottlemire's wife would be in her 11 final weeks of pregnancy; that travel by Stottlemire's wife to San Francisco, although not 12 prohibited, is highly discouraged during the final weeks of pregnancy; and that Stottlemire himself 13 would most likely be unavailable for deposition during his wife's final weeks of pregnancy in 14 anticipation of his wife going into labor while Stottlemire would be attending the meaningless 15 deposition. 16 On November 25, 2008, CI served a First Set of Requests for Admissions to Defendant

17 John Stottlemire (Attachment C, hereto) consisting of 23 Request for Admissions. Not less than 18 three of CI's Requests for Admissions are in violation of Fed. R Civ. P Rule 36(a)(1) and CI is 19 requesting Stottlemire answer matters which have no bearing on the causes of action CI has filed 20 against Stottlemire. Further, this request was made by CI with full knowledge that Stottlemire 21 would be moving to North Carolina within seven days of serving this request on Stottlemire, 22 Stottlemire's response is due not later than December 26, 2008, Stottlemire was unsure how long 23 his belongings, which include documents related to this action, would be inaccessible to him, and 24 CI has requested that if Stottlemire refer to a document while answering the request for admission, 25 that Stottlemire specify the document and attach a copy of the document to Stottlemire's response. 26 Finally, in violation of Civil Local Rule 30-1, on December 5, 2008, CI served Stottlemire

27 a Notice of Deposition and has scheduled Stottlemire's deposition on January 20, 2009 in the 28 offices of CI's attorneys located in San Francisco, California. CI has informed Stottlemire that the
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1 deposition will "continue from day to day, weekends and holidays excepted, until completed" 2 (Attachment D, hereto). CI makes this request without conferring with Stottlemire and has made 3 no effort to negotiate in good faith a date, time and place which would be mutually acceptable to 4 both parties, a violation of Civil Local Rule 30-1. CI further notices Stottlemire in violation of 5 Fed. R Civ. P 30(d)(1) which limits the deposition to one day of seven hours unless CI and 6 Stottlemire have otherwise stipulated or the Court has ordered a longer period of time for the 7 deposition. Lastly, CI served this notice with full knowledge of the undue burden and expense it 8 would impose on Stottlemire. 9 On November 13, 2008, Stottlemire and CI fully settled this lawsuit and CI released

10 Stottlemire from all claims arising from this lawsuit. After signing the Settlement Agreement, CI 11 has decided to renege on its contractual obligations and bases its decision on an alleged breach of 12 the Settlement Agreement by Stottlemire. After making this decision, CI sent an avalanche of 13 discovery requests to Stottlemire apparently in an attempt to overwhelm Stottlemire and coerce 14 him into accepting new terms to settle this dispute. With each of these requests, CI has violated 15 either the Civil Local Rules of this district or the Federal Rules of Civil Procedure. Often times CI 16 has violated both. 17 18 19 20 The Court has the Discretion to Defer the Initiation of Discovery Pending Resolution of a Dispositive Motion It is of course well settled that district courts have sweeping discretion to control the nature ARGUMENT

21 and timing of discovery. Herbert v. Lando, 441 U.S. 153 at 177 (1979) ("[J]udges should not 22 hesitate to exercise appropriate control over the discovery process."). Under Rule 26(c) of the 23 Federal Rules of Civil Procedure, courts have discretion to issue protective orders upon a showing 24 of good cause. Rule 26(c) provides, in pertinent part, that: 25 26 27 28 Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending * * * may make an order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (1) that the disclosure or discovery not be had.
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1 Fed. R. Civ. P. 26(c). Courts have consistently exercised such discretion to order a stay of all 2 discovery where it appears that the case can be resolved through a dispositive motion. See e.g. 3 Jarvis v. Regan, 833 F.2d 149 at 155 (9th Cir. 1987); B.R.S. Land Investors v. United States, 596 4 F.2d 353 at 356 (9th Cir. 1979); Petrus v. Bowen, 833 F.2d 581 at 583 (5th Cir. 1987) ("trial court 5 has broad discretion and inherent power to stay discovery until preliminary questions that may 6 dispose of the case are determined"); Patterson v. United States, 901 F.2d 927 at 929 (11th Cir. 7 1990); Hahn v. Star Bank, 190 F.3d 708 at 719 (6th Cir. 1999). 8 Case law addressing a stay of discovery, while a motion to summarily enforce a settlement

9 agreement is pending, is non-existent. However, case law addressing a stay of discovery, while a 10 dispositive motion is pending is plentiful. If the Court grants the upcoming Motion to Summarily 11 Enforce Settlement Agreement the effect would be identical to the effect of granting a motion 12 which challenges jurisdictional issues. In both instances, the pending lawsuit would be dismissed 13 with prejudice and the lawsuit would end. Stottlemire therefore argues, the authorities cited apply 14 not only to actions pending before the courts where jurisdiction is challenged. The authorities 15 cited apply to any motion pending before the Court when granting of the motion would be 16 dispositive of the pending litigation. 17 A stay is particularly appropriate where the dispositive motion challenges the court's

18 subject matter jurisdiction. Thus, the Supreme Court has noted that "[i]t is a recognized and 19 appropriate procedure for a court to limit discovery proceedings at the onset to a determination of 20 jurisdictional matters." United States Catholic Conference v. Abortion Rights Mobilization, Inc., 21 487 U.S. 72 at 79-80 (1988). Where a motion to dismiss presents questions of law for which 22 factual discovery is neither necessary nor appropriate, as is typically the case where the defendant 23 challenges the court's subject matter jurisdiction, discovery should be stayed pending a resolution 24 of the motion. See Wagh v. Metris Direct Inc., 363 F.3d 821 at 829 (9th Cir. 2003) (discovery at 25 the pleading stage is only appropriate where factual issues are raised by a Rule 12(b) motion.); 26 Florsheim Shoe Co. v. United States, 744 F.2d 787 at 797 (Fed. Cir. 1984); Rae v. Union Bank, 27 725 F.2d 478 at 481 (9th Cir. 1984). See generally 6 Moore's Federal Practice § 26.105[3][c]. The 28 obvious rationale for entering a protective order when disposition of a motion may obviate the
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1 need for discovery is to conserve the parties' time and resources. See Scroggins v. Air Cargo, Inc., 2 534 F.2d 1124 at 1133 (5th Cir. 1976). 3 4 5 The Court Should Grant a Protective Order Staying CI's Discovery Requests Pending a Ruling on a Motion to Summarily Enforce Settlement Agreement Here, principals of sound case management counsel in favor of a short stay of discovery to

6 permit a ruling on Stottlemire's soon-to-be filed Motion to Summarily Enforce Settlement 7 Agreement, which will avoid the waste of the Court's and the parties' resources, with minimal 8 prejudice to CI. First, Stottlemire's Motion to Summarily Enforce Settlement Agreement will 9 raise strong arguments why the Court should enforce the Settlement Agreement. Assuming CI can 10 rescind the Settlement Agreement and continue litigation in this Court, CI has more than ample 11 time to proceed with discovery as the Court has vacated the Fact Discovery Cutoff and will not 12 issue a new Fact Discovery Cutoff until after the Court ordered Case Management Conference to 13 be held in February 2009. Nor need the Court have to conclude that Stottlemire's motion will be 14 successful in order to grant a stay. When a court can conclude that a defendants' motion "does not 15 appear to be without some degree of foundation in law and there is a possibility that defendant 16 may prevail," a stay of discovery is appropriate. Ameritel Inns v. Moffat Brothers, 2007 WL 17 1792323, *4 (D. Idaho 2007). See also Johnson v. New York University School of Education, 205 18 F.R.D. 433 at 434 (S.D.N.Y. 2002) (stay of discovery appropriate where dispositive motion has 19 "substantial grounds"); GTE Wireless, Inc. v. Qualcomm, Inc., 192 F.R.D. 284 at 287 (S.D. Cal 20 2000) (stay where defendants' motion has around a "fifty percent chance of success"). 21 Nor is this a case where the probably result of a favorable ruling on a defendant's motion to

22 summarily enforce settlement agreement will be an order granting plaintiffs leave to amend to 23 address a pleading defect, thus justifying the continuation of discovery in the interim. See e.g. In 24 Re Valence Technology Securities Litigation, 1994 WL 758688 (N.D. Cal. 1994). CI signed a 25 Settlement Agreement and released Stottlemire from all claims related to this lawsuit, hence, if 26 Stottlemire's motion to summarily enforce settlement agreement is granted, it is doubtful CI will 27 be able to cure any defects in their allegations. Finally, a brief stay in discovery will not unduly 28 prejudice CI since Stottlemire's motion will be argued shortly after the Case Management
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1 Conference currently scheduled for February 17, 2009 and discovery can be addressed shortly after 2 a ruling. 3 A stay is particularly appropriate here given the enormous burden that would be imposed

4 by CI's Requests for Production of Documents, their Requests for Admissions as well as their 5 proposed deposition schedule. As another judge of this Court has recognized, "staying discovery 6 may be particularly appropriate ... where discovery tends to be broad, time-consuming and 7 expensive." In Re NetFlix Antitrust Litigation, 506 F.Supp.2d 308 at 321 (N.D. Cal. 2007). As 8 with the antitrust claim at issue in NetFlix, the discovery and depositions CI seeks also promises to 9 be "a sprawling, costly and hugely time-consuming undertaking" given Stottlemire's current 10 circumstances which the Court found reasonable when granting Stottlemire's Motion to Extend 11 Time to Answer CI's Third Amended Complaint. 12 Especially disturbing is CI's motives for pursing discovery at this particular time. For the

13 previous ten months CI has not even mentioned the word discovery to Stottlemire and has made no 14 attempts to initiate discovery. Now, however, just days before Stottlemire and his family were to 15 move completely across the United States, CI feels some unfounded need for urgency. The current 16 case management schedule has been vacated. CI is under no pending deadline to complete 17 discovery however, just as Stottlemire is most vulnerable CI sends an avalanche of discovery 18 requests which violate both the Civil Local Rules of this Court and the Federal Rules of Civil 19 Procedure. 20 21 CONCLUSION It is unfortunate that Stottlemire must ultimately move the Court to enforce a duly signed

22 settlement agreement. CI and Stottlemire entered into an enforceable Settlement Agreement on 23 November 13, 2008. Not only was the agreement entered into, both CI and Stottlemire signed the 24 agreement. The terms of the agreement are simple; CI would dismiss this lawsuit with prejudice 25 and release Stottlemire of all claims relating to this lawsuit. CI, acting without any legal authority, 26 has decided the Settlement Agreement has no effect and they are allowed to continue this lawsuit 27 against Stottlemire. In light of CI's vigilante justice, Stottlemire will move the Court to enforce 28
Defendant's Notice of Motion and Motion to Stay Discovery No. 5:07-CV-03457 HRL - 14 -

1 the settlement agreement as soon as Stottlemire is able to complete the proper research and prepare 2 the motion. 3 Stottlemire has briefly discussed his intentions to move the Court to enforce the settlement

4 agreement with CI's attorneys. Stottlemire has also described to CI's attorneys the grounds upon 5 which Stottlemire will base his motion. In light of this discussion, CI has sent an avalanche of 6 discovery requests, files and unreasonable opposition to Stottlemire's Motion to Extend Time, files 7 an opposition to Stottlemire's request to have a status conference with the Court and files a motion 8 requesting that CI and Stottlemire return to Early Neutral Evaluation. An obvious attempt by CI's 9 attorneys to overwhelm Stottlemire; a pro se defendant without the resources available to respond 10 effectively to all of these requests given the nature of the requests, their pending deadlines and 11 Stottlemire's move to North Carolina. 12 For all the foregoing reasons, the Court should grant Stottlemire's Motion for Protective

13 Order and stay discovery until after a ruling on Stottlemire's soon-to-be filed Motion to Summarily 14 Enforce Settlement Agreement. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defendant's Notice of Motion and Motion to Stay Discovery No. 5:07-CV-03457 HRL - 15 -

ATTACHMENT A

ATTACHMENT B

John Stottlemire
From: Sent: T o: Cc: Subject: [e-mail] Monday, November 24, 2008 6:10 PM [e-mail] [e-mail]; [e-mail] RE: Coupons, Inc. v. Stottlemire

Let's also schedule dates for your and your wife's depositions at our offices. How does January 12th through the 14th look?
-----Original Message----From: Arentsen, Kay (24) x3514 Sent: Monday, November 24, 2008 3:00 PM To: '[e-mail]' Subject: Coupons, Inc. v. Stottlemire

<< File: 2008-11-24 Plaintiff Coupons, Inc.'s First Request for Production of Documents to Defendant John Stottlemire.PDF >> << File: 2008-11-24 letter from NAG to Judge Lloyd re Settlement Status and Time to File Answer.PDF >> Attached are the following documents: Plaintiff Coupons, Inc.'s First Request for Production of Documents to Defendant John Stottlemire Letter from Neil A. Goteiner to the Honorable Howard R. Lloyd regarding Settlement Status and Time to File Answer

Kay Arentsen Legal Secretary to Steven R. Lowenthal, Neil A. Goteiner Grace K. Won, Ruth Ann Castro
______________________________

Farella Braun + Martel LLP
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ATTACHMENT C

ATTACHMENT D