Baker v. State of Colorado, The et al

Filing 46

ORDER granting 44 Motion for Protective Order. Disclosures and discovery are STAYED pending resolution of the Motion to Dismiss [#23] and Motion for Summary Judgment [#36]. Scheduling Conference set for 1/24/12 at 10:00 a.m. is vacated. By Magistrate Judge Kristen L. Mix on 1/12/12.(jjpsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02578-PAB-KLM
BRANDON BAKER, Rev.,
Plaintiff,
v.
THE STATE OF COLORADO, and
JOHN SUTHERS, Attorney General,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion for Protective Order to Stay
Discovery Pursuant to Fed. R. Civ. P. 26(c) [Docket No. 44; Filed January 11, 2011] (the
“Motion”).
Two dispositive motions are currently pending in this matter: Defendants’ Motion to
Dismiss [Docket No. 23; Filed December 12, 2011] and Plaintiff’s Motion for Summary Judgment
[Docket No. 36; December 29, 2011]. Defendants’ motion includes a challenge to the subject
matter jurisdiction of this Court. See Motion to Dismiss [#23] at 6-15. Although the stay of
proceedings in a case is generally disfavored, the Court has discretion to stay discovery while
a dispositive motion is pending. See Wason Ranch Corp. v. Hecla Mining Co., No. 07-cv-00267EWN-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); Nankivil v. Lockheed Martin
Corp., 216 F.R.D. 689, 692 (M.D. Fla. 2003) (A stay may be appropriate if “resolution of a
preliminary motion may dispose of the entire action.”); 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.”); Gilbert v. Ferry, 401 F.3d 411, 415-16 (6th Cir.
2005) (finding that ordering a stay of discovery is not an abuse of discretion when a defendant
has filed a motion to dismiss challenging the court’s actual subject matter jurisdiction); Chavous
v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 201 F.R.D. 1, 2 (D.D.C. 2005) (“A stay of
discovery pending the determination of a dispositive motion is an eminently logical means to
prevent wasting the time and effort of all concerned, and to make the most efficient use of judicial
resources.” (internal quotation omitted)).
The factors guiding the Court’s evaluation of a request for a stay include: (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 (citation omitted).
Considering Plaintiff’s interest first, the Court has generally found that with the passage
of time, the memories of the parties and other witnesses may fade, witnesses may relocate or
become unavailable, or documents may become lost or inadvertently destroyed. Therefore,
delay may diminish Plaintiff’s ability to proceed. Weighing Plaintiff’s interest against Defendants’

alleged burden next, in light of the above-stated case law, the burden on a governmental
defendant of proceeding in litigation during the pendency of jurisdictional issues is well-observed
by the federal courts, as related to the second factor.
The third factor concerning the convenience to the Court weighs heavily in favor of a stay.
The motion to dismiss not only challenges this Court’s subject matter jurisdiction which must be
satisfied at all stages of a litigation, but also could dispose of the complaint in its entirety.1
Judicial resources would best be conserved by imposing a stay until the jurisdictional challenge
is resolved. Consideration of the fourth and fifth factors does not sway the Court from its
conclusion. Weighing these factors in light of the law favoring a stay of discovery when subject
matter jurisdiction is at issue, the Court concludes that a stay of discovery is appropriate, pending
the adjudication of the dispositive motions.
IT IS HEREBY ORDERED that the Motion is GRANTED. Accordingly,
IT IS FURTHER ORDERED that disclosures and discovery are STAYED pending
resolution of the Motion to Dismiss [#23] and Motion for Summary Judgment [#36].
IT IS FURTHER ORDERED, sua sponte, that the Scheduling Conference set for January
24, 2012 at 10:00 a.m. is vacated. If necessary, a new scheduling conference will be set upon
resolution of the pending dispositive motions.
DATED: January 12, 2012 at Denver, Colorado.

1

The Court finds it persuasive that Defendant filed its motion to dismiss and motion to
stay quite early in the litigation and before the entry of a scheduling order.