Duran v. Denver, City and County of et al

Filing 34

ORDER. Defendant City and County of Denvers Unopposed Motion for Temporary Stay of Proceedings Pending Disposition of Defendant Steven Koehlers Bankruptcy Proceeding 31 is GRANTED. All proceedings in this case are STAYED unless and until relief fr om the automatic stay in Bankruptcy Case No. 11-13292-SBB is granted or until disposition of Defendant Koehlers bankruptcy proceedings or further order of the court. The Unopposed Motion to Modify Scheduling Order 32 is DENIED as moot. By Magistrate Judge Kathleen M. Tafoya on 5/9/2011.(sah, ) Modified on 5/9/2011 to include the ruling of document number #31. (sah, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 10–cv–01569–REB–KMT

ROBERT DURAN,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, a municipality, and
STEVEN KOEHLER, in his individual and official capacity,
Defendants.

ORDER

This matter is before the court on Defendant City and County of Denver’s “Unopposed
Motion for Temporary Stay of Proceedings Pending Disposition of Defendant Steven Koehler’s
Bankruptcy Proceeding” (Doc. No. 31, filed May 3, 2011) and “Unopposed Motion to Modify
Scheduling Order” (Doc. No. 32, filed May 3, 2011).
On February 24, 2011, Defendant Koehler filed a Suggestion of Bankruptcy and Notice
of Automatic Stay. (Doc. No. 20.) Pursuant to the Notice, on February 28, 2011, this court
entered an Order staying all proceedings against Defendant Koehler. (Doc. No. 21.) As a result
of the stay, no discovery may be obtained from Defendant Koehler, nor can he be compelled to
provide testimony if the trial in this case proceeds before the bankruptcy stay is lifted.
Defendant City and County of Denver now seeks a stay of this matter pending disposition of
Defendant Steven Koehler’s bankruptcy proceedings.

The power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the cases on its docket with economy of time and effort for itself, for
counsel, and for litigants. How this can best be done calls for the exercise of judgment, which
must weigh competing interests and maintain an even balance. Kansas City Southern Ry. Co. v.
United States, 282 U.S. 760, 763 (1931).
The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings.
See String Cheese Incident, LLC v. Stylus Shows, Inc., No. 02–cv–01934–LTB–PAC, 2006 WL
894955, at *2 (D. Colo. Mar. 30, 2006). Federal Rule of Civil Procedure 26(c) does, however,
provide
A party or any person from whom discovery is sought may move for a protective
order in the court where the action is pending . . . . The court may, for good cause,
issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense . . . .
Fed. R. Civ. P. 26(c)(1). Specifically, this court has found that subjecting a party to discovery
when a motion to dismiss based on a jurisdictional defense is pending would subject him to
undue burden or expense if the motion to dismiss is later granted. String Cheese Incident, 2006
WL 894955, at *2 (defense of lack of personal jurisdiction). When considering a stay of
discovery, the court may consider and weigh: “(1) plaintiff's interests in proceeding
expeditiously with the civil action and the potential prejudice to plaintiff of a delay; (2) the
burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties
to the civil litigation; and (5) the public interest.” Id.; see also, FDIC v. Renda, No. 85-2216-O,
1987 WL 348635, at *2 (D. Kan. Aug. 6, 1987). Indeed, a court may decide that in a particular

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case it would be wise to stay discovery on the merits until [certain challenges] have been
resolved.” 8 Charles Alan Wright et al., Federal Practice and Procedure § 2040, at 521-22 (2d
ed. 1994); 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.”).
In weighing the factors for determination of the propriety of a stay, the court finds that a
stay is appropriate here. First, the defendant’s motion to stay is unopposed. Plaintiff has
expressed concerns about providing discovery in the absence of Defendant Koehler. It also is in
Plaintiff’s interest to try this case once as opposed to twice, as trying the case twice will be
duplicative, will give rise to additional fees and costs, and has the potential to give rise to
inconsistent verdicts.
Second, Plaintiff’s Complaint (Doc. No. 1) sets forth claims against Defendant Koehler
pursuant to 42 U.S.C. § 1983 for an alleged violation of his Fourth Amendment rights for an
alleged use of excessive force and for an alleged violation of the Fourteenth Amendment based
upon an alleged invasion of bodily integrity. (See Doc. No. 1.) The Complaint also alleges
municipal liability against Denver under Monell v. New York City Dep’t of Social Servs., 436
U.S. 658, 694 (1978) for an alleged failure to train and supervise its employees. Defendant City
and County of Denver would be unfairly prejudiced in the absence of a stay, as the determination
of Plaintiff’s Monell claim is entirely dependent upon whether Defendant Koehler’s alleged
conduct was unconstitutional, and Defendant City and County of Denver cannot be held liable if
there was no underlying constitutional violation by Defendant Koehler. See City of Los Angeles
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v. Hellar, 475 U.S. 796, 799 (1986); Hinton v. City of Elwood, Kan., 997 F.2d 774, 782-83 (10th
Cir.1993). As a result, complete relief cannot be obtained in this proceeding without Defendant
Koehler.
Third, the court also considers its own convenience, the interests of non-parties, and the
public interest in general. None of these factors prompt the court to reach a different result. A
stay will avoid the possibility of having duplicative trials which could result in juror confusion as
well as inconsistent verdicts. Moreover, the public interest also will be substantially served by
staying the proceedings in this case, as Defendant City and County of Denver is a governmental
entity and public resources will be conserved by litigating Plaintiff’s claims only once. Finally,
there are no compelling nonparty interests that will be affected by a stay.
Therefore, it is
ORDERED that Defendant City and County of Denver’s “Unopposed Motion for
Temporary Stay of Proceedings Pending Disposition of Defendant Steven Koehler’s Bankruptcy
Proceeding” (Doc. No. 31) is GRANTED. All proceedings in this case are STAYED unless and
until relief from the automatic stay in Bankruptcy Case No. 11-13292-SBB is granted or until
disposition of Defendant Koehler’s bankruptcy proceedings or further order of the court. The
parties are ORDERED to file a status report in this case within ten days of any relief from stay
in the bankruptcy case or within ten days of disposition of the bankruptcy proceedings.

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The “Unopposed Motion to Modify Scheduling Order” (Doc. No. 32) is DENIED as
moot.
Dated this 9th day of May, 2011.

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