Ryskamp v. Looney et al

Filing 238

MINUTE ORDER Denying as moot 209 Initial Motion to Stay; granting 236 Motion to Stay and all discovery is STAYED through and including March 12, 2012. IT IS FURTHER ORDERED that all pending Answer deadlines and the Scheduling Conference set for February 13, 2011 at 10:30 a.m. are VACATED, by Magistrate Judge Kristen L. Mix on 1/25/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-00842-WJM-KLM
DENIS RYSKAMP, Derivatively on Behalf of BOULDER GROWTH & INCOME FUND,
Plaintiff,
v.
JOEL W. LOONEY,
DEAN L. JACOBSON,
RICHARD I. BARR,
SUSAN L. COCIORA,
JOHN S. HOREJSI,
STEWART R. HOREJSI,
STEPHEN C. MILLER,
CARL D. JOHNS,
THE ERNEST HOREJSI TRUST NO. 1B,
BOULDER INVESTMENT ADVISERS, LLC,
STEWART INVESTMENT ADVISERS, and
FUND ADMINISTRATIVE SERVICES, LLC,
Defendants,
and
BOULDER GROWTH & INCOME FUND, INC.,
Nominal Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the parties’ Unopposed Joint Motion to Stay
Proceedings Pending Mediation [Docket No. 209; Filed December 28, 2011] (the “Initial
Motion”) and the parties’ Joint Unopposed Motion to Stay Proceedings Pending
Settlement Approval [Docket No. 53; Filed February 24, 2011] (the “Motion to Stay”).
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Although the stay of proceedings in a case is generally disfavored, the Court has
discretion to stay discovery. See Wason Ranch Corp. v. Hecla Mining Co., No. 07-cv00267-EWN-MEH, 2007 WL 1655362, at *1 (D. Colo. June 6, 2007) (unreported decision)
(“A stay of all discovery is generally disfavored in this District.” (citation omitted)); String
Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-cv-01934-LTB-PAC, 2006 WL
894955, at *2 (D. Colo. Mar. 30, 2006) (unreported decision) (finding that a thirty-day stay
of discovery was appropriate when a motion to dismiss for lack of personal jurisdiction was
pending); 8 Charles Alan Wright, et al., Federal Practice and Procedure § 2040, at 521-22
(2d ed. 1994) (“[W]hen one issue may be determinative of a case, the court has discretion
to stay discovery on other issues until the critical issue has been decided.”); Vivid Techs.,
Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 804 (Fed. Cir. 1999) (“When a particular issue
may be dispositive, the court may stay discovery concerning other issues until the critical
issue is resolved.”).
When exercising its discretion, the Court considers the following factors: (1) the
interest of the plaintiff in proceeding expeditiously with discovery and the potential prejudice
to the plaintiff of a delay; (2) the burden on the defendants of proceeding with discovery;
(3) the convenience to the Court of staying discovery; (4) the interests of nonparties in
either staying or proceeding with discovery; and (5) the public interest in either staying or
proceeding with discovery. String Cheese Incident, 2006 WL 894955, at *2 (citing FDIC
v. Renda, No. 85-2216-O, 1987 WL 348635, at *2 (D. Kan. Aug. 6, 1987) (unreported
decision)).
In this case, staying scheduling and discovery would not prejudice Plaintiff or
Defendants. The parties agree that there will be no prejudice to either party because they
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have reached a tentative settlement agreement. The Court finds that the first and second
String Cheese Incident factors weigh in favor of staying scheduling and discovery.
With regard to the third factor, it is certainly more convenient for the Court to stay
discovery until it is clear that the case will proceed in this court. See Chavous v. Dist. of
Columbia Fin. Responsibility & Mgmt. Assistance Auth., 201 F.R.D. 1, 5 (D.D.C. 2001)
(staying discovery pending decision on a dispositive motion that would fully resolve the
case “furthers the ends of economy and efficiency, since if [the motion] is granted, there
will be no need for [further proceedings]”). The third factor thus weighs in favor of staying
scheduling and discovery.
With regard to the fourth factor, there are no nonparties with significant particularized
interests in this case. Accordingly, the fourth String Cheese Incident factor neither weighs
in favor nor against a stay.
With regard to the fifth and final factor, the Court finds that the public’s only interest
in this case is a general interest in its efficient and just resolution. Avoiding wasteful efforts
by the Court clearly serves this interest. Thus, the fifth String Cheese Incident factor
weighs in favor of a stay.
Weighing the relevant factors, the Court concludes that staying scheduling and
discovery pending finalize of the parties’ settlement agreement is appropriate.
IT IS HEREBY ORDERED that the Initial Motion [#209] is DENIED as moot.
IT IS FURTHER ORDERED that the Motion to Stay [#236] is GRANTED. The
parties shall file settlement papers no later than March 12, 2012.
IT IS FURTHER ORDERED that all discovery is STAYED through and including

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March 12, 2012.
IT IS FURTHER ORDERED that all pending Answer deadlines and the Scheduling
Conference set for February 13, 2011 at 10:30 a.m. are VACATED.
DATED: January 25, 2012 at Denver, Colorado.

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