Genberg v. Porter

Filing 57

MINUTE ORDER granting 50 the Joint Motion to Stay Discovery, by Magistrate Judge Michael E. Hegarty on 2/27/2012. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02434-WYD-MEH
CARL GENBERG,
Plaintiff,
v.
STEVEN S. PORTER, an individual,
JEFFREY SPERBER, an individual,
AL BAUTISTA, an individual,
MICHELE DARNAUD, an individual,
CHERYL HOFFMAN-BRAY, an individual,
PHILIPPE GASTONE, an individual,
MARC REDLICH, an individual,
Defendants.

ORDER ON MOTION TO STAY DISCOVERY

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is a Joint Motion to Stay Discovery [filed February 23, 2012; docket #50].
Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C. Colo. LCivR 72.1C, this matter has been referred
to this Court for disposition [docket #51]. The motion is brought by all parties, and the Court finds
that oral argument would not assist the Court in its consideration of this matter. For the reasons that
follow, the Court grants the motion.
BACKGROUND
On September 15, 2011, this case was transferred from the U.S. District Court for the
District of Nevada. On October 21, 2011, the Plaintiff filed an Amended Complaint as a matter of
course pursuant to Fed. R. Civ. P. 15(a). Thereafter, Plaintiff moved for and was granted leave to
file a corrected First Amended Complaint, which is the operative pleading in this matter. Docket
#16. Essentially, the Plaintiff alleges that Defendants terminated his employment in violation of the

Sarbanes-Oxley Act and published defamatory statements about him. See id. Defendant Porter
responded to the Amended Complaint by filing an Answer, but Defendants Sperber, Darnaud,
Hoffman-Bray, Gastone, Redlich and Bautista filed motions to dismiss for lack of subject-matter
jurisdiction. See dockets #17, #33, #34 and #45.
The movants here claim that a temporary stay pending resolution of the jurisdictional issues
raised in their motions to dismiss is appropriate to avoid any undue burden and expense of discovery
should they be summarily dismissed from the case. The Court agrees.
DISCUSSION
The decision to issue a protective order and thereby stay discovery rests within the sound
discretion of the trial court. Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990). Such protection is
warranted, upon a showing of good cause, to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). Here, Defendants
seek protection from the burdensome expense of discovery at this stage in the case.
A stay of all discovery is generally disfavored in this District. Chavez v. Young Am. Ins. Co.,
No. 06-cv-02419-PSF-BNB, 2007 WL 683973, at *2 (D. Colo. Mar. 2, 2007). Nevertheless, a stay
may be appropriate if “resolution of a preliminary motion may dispose of the entire action.”
Nankivil v. Lockheed Martin Corp., 216 F.R.D. 689, 692 (M.D. Fla. 2003) (citations omitted).
The following five factors guide the Court’s determination:
(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.
String Cheese Incident, LLC v. Stylus Shows, Inc., No. 02-cv-01934-LTB-PAC, 2006 WL 894955,
at *2 (D. Colo. Mar. 30, 2006); see also Golden Quality Ice Cream Co. v. Deerfield Speciality
Papers, Inc., 87 F.R.D. 53, 56 (E.D. Pa. 1980).
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In weighing the factors set forth for determining the propriety of a stay, the Court finds that
a stay of discovery is appropriate in this case. With respect to the first two factors, the Court
balances a plaintiff’s desire to proceed expeditiously with his case against the burden on a defendant
of going forward. However, the Plaintiff joins in the motion; thus, to the extent that Plaintiff has
an interest in proceeding expeditiously, the Court finds his interest is offset by Defendants’ burden.
Here, all Defendants except Mr. Porter filed motions to dismiss all claims against them for this
Court’s lack of subject-matter jurisdiction.
Courts have recognized that a stay is warranted while the issue of jurisdiction is being
resolved. See Gilbert v. Ferry, 401 F.3d 411, 416 (6th Cir. 2005) (affirming trial court’s stay of
discovery pending ruling on dispositive motions raising jurisdictional issues). “[S]ubjecting a party
to discovery when a motion to dismiss for lack of personal jurisdiction is pending may subject him
to undue burden or expense, particularly if the motion to dismiss is later granted.” String Cheese
Incident, LLC, 2006 WL 894955 at *2 (imposing a temporary stay of discovery pending resolution
of a motion to dismiss for lack of personal jurisdiction). On balance, the Court finds that any
potential harm to Plaintiff is outweighed by the burden on six of the seven Defendants resulting
from conducting and responding to discovery while their motions to dismiss are pending.
Consideration of the remaining String Cheese factors does not tip the balance in favor of
either position. Defendants make no argument concerning the interests of non-parties, and because
the movants raise no issues concerning the fact that discovery will be stayed only temporarily, the
Court perceives minimal effect, if any, resulting from of a temporary stay of these proceedings.
Therefore, weighing the factors necessary to consider whether to grant the requested stay,
the Court finds that a temporary stay of discovery is justified and will be imposed pending
resolution of the pending motions to dismiss.

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III.

Conclusion
Accordingly, for the reasons stated above, it is hereby ORDERED that the Joint Motion to

Stay Discovery [filed February 23, 2012; docket #50] is granted. A temporary stay of discovery
is hereby imposed pending resolution of Defendants’ motions to dismiss for lack of subject-matter
jurisdiction. The Defendants shall file a status report within five (5) days of any order resolving
their motions to dismiss.
Dated at Denver, Colorado, this 27th day of February, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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