M.G. et al v. Metropolitan Interpreters and Translators, Inc. et al

Filing 57

ORDER granting 52 MOTION to Stay Discovery. As provided herein, discovery is stayed for all parties pending a ruling on 48 Federal defendants' Motion to Dismiss. The parties are to contact the chambers of Magistrate Judge Dembin within three business days of the ruling on the Motion to Dismiss for further proceedings. Signed by Magistrate Judge Mitchell D. Dembin on 2/26/13. (Dembin, Mitchell)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 M.G., et al., 12 vs. CASE NO. 12cv460-JM (MDD) Plaintiffs, 13 14 15 [ECF NO. 52] METROPOLITAN INTERPRETERS and TRANSLATORS, INC., et al., Defendants. 16 17 ORDER GRANTING MOTION TO STAY DISCOVERY Before the Court is the motion of the Federal defendants1 filed on 18 February 13, 2013, to stay discovery. (ECF No. 52). According to the 19 Federal defendants, the Plaintiffs do not oppose. The non-Federal 20 defendants, however, consisting of Metropolitan Interpreters and 21 Translators, Inc. , and individual defendants employed by Metropolitan 22 identified by their initials, J.C., R.P., M.L. and B.A., have opposed any 23 stay regarding their cases. (ECF No. 53).2 24 25 26 27 28 1 The Federal defendants are the United States of America and Eileen Zeidler, Sondra Hester, Darek Kitlinski and William R. Sherman. The individual defendants are employees of the United States Drug Enforcement Administration. (ECF No. 52 at 1-2). 2 It is not clear whether Metropolitan is opposing the stay only for itself or also on behalf of its named employees. (See ECF No. 53). Since the named employees are represented by the same counsel and their interests appear aligned, for now, with Metropolitan, the Court will assume that Metropolitan is opposing the motion to stay -1- 12cv460-JM (MDD) 1 Plaintiffs are current and former employees of Metropolitan who 2 worked as linguists. According to Plaintiffs, Metropolitan had a contract 3 with the Drug Enforcement Administration for translation services and 4 Plaintiffs were assigned work, from time to time, pursuant to that 5 contract. Plaintiffs main allegations are that they suffered adverse 6 employment action and were otherwise damaged or aggrieved by being 7 subjected to polygraph examinations by Drug Enforcement 8 Administration personnel allegedly in violation of the Employee 9 Polygraph Protection Act, 29 U.S.C. § 2002. Procedural History 10 11 The Complaint was filed on February 23, 2012, and named only 12 Metropolitan and certain of its employees. (ECF No. 1). The Complaint 13 was amended with the filing of the First Amended Complaint on April 5, 14 2012, which again was limited to Metropolitan and certain employees. 15 (ECF No. 14). Following resolution of pre-answer motions, Metropolitan 16 and the named employees filed their Answer on August 1, 2012. (ECF 17 No. 21). An Early Neutral Evaluation with the Court was held on 18 September 10, 2012. (ECF Nos. 27, 28). A Case Management 19 Conference was held on October 30, 2012. (ECF No. 33). On that same 20 day, the Court granted Plaintiffs’ unopposed Motion and allowed the 21 filing of the Second Amended Complaint. (ECF Nos. 29, 30). The 22 Federal defendants were added to the case at that time. The Federal 23 defendants have not answered the Complaint, instead moving, on 24 January 29, 2013, to dismiss the Second Amended Complaint as to all 25 Federal defendants on grounds of sovereign and qualified immunity. 26 (ECF No. 48). 27 Discovery commenced between Plaintiffs and the non-Federal 28 for all non-Federal defendants. -2- 12cv460-JM (MDD) 1 defendants with the exchange of initial disclosures pursuant to 2 Fed.R.Civ.P. 26(a) no later than October 26, 2012. (ECF No. 28 at 1-2). 3 Formal discovery has been open between them at least as of October 30, 4 2012, if not earlier. (See ECF No. 53 at 1). 5 Discussion 6 The Federal defendants seek to have discovery completely stayed 7 pending the outcome of their motion to dismiss. (ECF No. 52 at 5-6). 8 Alternatively, the Federal defendants seek a stay of discovery only as to 9 them and request leave to re-open depositions taken during the stay 10 period if they remain in the case. (Id. at 6). 11 The Court agrees with the Federal defendants that, at a minimum, 12 discovery should be stayed as to them. A defendant asserting immunity 13 should be free from all burdens of litigation. See Ashcroft v. Iqbal, 556 14 U.S. 662, 685 (2009). Although Iqbal involved the assertion of qualified 15 immunity, the Court agrees that the same view should obtain with 16 regard to the assertion of sovereign immunity. See, e.g., Lindhurst v. 17 USA, Social Security Administration, 2012 WL 5381576 *2 (D. Colo. 18 October 31, 2012). 19 The more challenging question is whether to stay discovery 20 completely or to allow discovery otherwise to proceed. In Iqbal, the 21 Supreme Court stayed discovery for all defendants stating that to do 22 otherwise would not truly relieve the stayed defendants from the 23 burdens of discovery. The Court stated: 24 25 26 27 28 It is no answer to these concerns to say that discovery for petitioners can be deferred while pretrial proceedings continue for other defendants. It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure the case does not develop in a misleading or slanted way that causes prejudice to their position. Even if petitioners are not yet themselves subject to discovery orders, they would not be free from the burdens of discovery. -3- 12cv460-JM (MDD) 1 Ashcroft v. Iqbal, 556 U.S. at 685. 2 Other courts, although recognizing this statement from Iqbal as dicta, 3 nevertheless have agreed that all discovery should be stayed when any 4 defendant raises an immunity defense. See A.A. v. Martinez, 2012 WL 5 5974170 *1-2 (D. Colo. October 9, 2012). 6 The Court is not convinced that an automatic stay of all discovery 7 is required in every case in which a defendant raises a claim of 8 immunity. Rather, the Court should consider the nature of the case and 9 the extent to which proceeding with discovery as to other parties likely 10 would prejudice the stayed defendants, the impact on other parties and 11 the court. Courts are empowered to fashion such protective orders as 12 may be needed to protect the stayed defendants and maintain efficiency 13 if the circumstances of the case so suggest. See Fed.R.Civ.P. 26(c). 14 In this case, it appears that the conduct of the government actors is 15 inextricably intertwined with the allegations against the non-Federal 16 defendants. The gravamen of the defense for the non-Federal 17 defendants is that the Federal defendants required the polygraph 18 examinations and the contract required that any communications 19 between DEA and Metropolitan were required to flow through 20 Metropolitan. (See, e.g., Answer to Amended Complaint, ECF No. 34 at 21 ¶¶ 38, 46, 58). Consequently, discovery into the actions of the Federal 22 defendants, whether obtained from Plaintiffs, from the non-Federal 23 defendants or from third parties, is critical to establishing facts to 24 support the defense of the non-Federal defendants. The concerns 25 expressed in Iqbal regarding potential prejudice to stayed defendants 26 appears real in this case if discovery is allowed otherwise to proceed. 27 28 The Court appreciates the frustration expressed by the non-Federal defendants but cannot conceive of a protective order that would -4- 12cv460-JM (MDD) 1 adequately protect the Federal defendants during the stay. It is not a 2 satisfactory solution to allow discovery otherwise to proceed. To avoid 3 prejudicing their position, the Federal defendants, through counsel, 4 either would have to attend the depositions that may occur or would 5 have to seek leave to re-take depositions in which their interests have 6 not been adequately explored or in which their position has been 7 mischaracterized. With the first option, the burden of discovery would 8 not been lifted as required by law. With the second option, witnesses 9 and other parties may have to be re-deposed which is inefficient and 10 burdensome. Conclusion 11 12 The motion of the Federal defendants to stay discovery pending a 13 ruling on their Motion to Dismiss is GRANTED. Discovery is stayed for 14 all parties until further Order of this Court. The parties are instructed 15 to contact this Court within three (3) business days of the ruling on the 16 pending Motion to Dismiss (ECF No. 48) for further proceedings. 17 18 19 IT IS SO ORDERED. DATED: February 26, 2013 20 21 22 Hon. Mitchell D. Dembin U.S. Magistrate Judge 23 24 25 26 27 28 -5- 12cv460-JM (MDD)

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