Guy v. Jorstad et al

Filing 40

ORDER granting 21 Defendants' Motion for Protective Order from Discovery and to Vacate Scheduling Order Deadlines. Discovery and all deadlines and hearings in this case are hereby stayed pending resolution of 36 Defendants' Motion to Dismiss Plaintiff's Amended Complaint. The parties shall file a Joint Status Report within ten days of a ruling on the pending motion to dismiss if any portion of the case remains pending. By Magistrate Judge Kathleen M. Tafoya on 12/4/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12-cv-01249-PAB-KMT

KATHRYN GUY, as mother, next of kin and executor of the estate of James Guy, deceased,
Plaintiff,
v.
NATHAN JORSTAD,
RICHARD MYERS, Chief of Police,
STEVE COX, Interim City Manager, individually and in their official capacity, and
CITY OF COLORADO SPRINGS, a Municipality,
Defendants.

ORDER

This matter is before the court on “Defendants’ Motion for Protective Order from
Discovery and to Vacate Scheduling Order Deadlines” (Doc. No. 21, filed August 14, 2012
[“Mot.”]).
Plaintiff filed her Complaint on May 14, 2012. (Doc. No. 1.) On July 19, 2012,
Defendants collectively filed a motion to dismiss (Doc. No. 11), and on August 14, 2012, filed
the present motion to stay discovery (Doc. No. 21). On November 2, 2012, this court granted
Plaintiff’s motion to amend her Complaint, (see Doc. No. 33), and on November 13, 2012,
ordered Defendants to file a status report advising of their position on a stay of discovery, in
light of District Judge Philip A. Brimmer’s denial of the motion to dismiss as moot. (See Doc.

Nos. 34, 35.) Defendants filed their Status Report on November 16, 2012 (Doc. No. 37), and on
November 20, 2012, this court ordered Plaintiff to file a status report responding to Defendants’
position on a stay of discovery. (See Doc. No. 38.) Plaintiff subsequently filed her Status
Report on November 27, 2012 (Doc. No. 39).
Defendants’ Status Report, filed contemporaneously with a motion to dismiss the
Amended Complaint (Doc. No. 36), re-incorporates the arguments from the motion to stay, and
argues that they remain applicable, even in light of the revisions in the Amended Complaint.
Defendants Cox and Myers contend that a stay is warranted because they assert qualified
immunity in the pending motion to dismiss, while the other defendants contend that a
discretionary stay in discovery is warranted. (See Doc. No. 37, ¶¶ 7-8.) Plaintiff, in originally
opposing the motion to stay, conceded that discovery should be stayed as to Defendants Cox and
Myers, (see Doc. No. 28), but now appears in her Status Report to support a stay of discovery in
the entire case. (See Doc. No. 39, ¶ 4.)
Immunity provisions, whether qualified, absolute or pursuant to the Eleventh
Amendment, are meant to free officials from the concerns of litigation, including avoidance of
disruptive discovery. See Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (citing Siegert v. Gilley,
500 U.S. 226, 236 (1991) (Kennedy, J., concurring in judgment)); see also Workman v. Jordan,
958 F.2d 332, 335 (10th Cir. 1992) (noting that qualified immunity, if successful, protects an
official both from liability and the ordinary burdens of litigation, including far-ranging
discovery) (citing Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)). As explained by the
Court in Iqbal, there are serious and legitimate reasons for this protection:
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If a Government official is to devote time to his or her duties, and to the
formulation of sound and responsible policies, it is counterproductive to require
the substantial diversion that is attendant to participating in litigation and making
informed decisions as to how it should proceed. Litigation, though necessary to
ensure that officials comply with the law, exacts heavy costs in terms of
efficiency and expenditure of valuable time and resources that might otherwise be
directed to the proper execution of the work of the Government. The costs of
diversion are only magnified when Government officials are charged with
responding to [the burdens of litigation discovery].
Id. at 685.
The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings.
See String Cheese Incident, LLC v. Stylus Shows, Inc., 02-CV-01934-LTB-PA, 2006 WL
894955, at *2 (D. Colo. March 30, 2006) (unpublished). Federal Rule of Civil Procedure 26
does, however, provide that
[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). Moreover,
[t]he power to stay proceedings is incidental to the power inherent in every court
to control the disposition of the causes 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.
Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (citing Kansas City S. Ry. Co. v. United
States, 282 U.S. 760, 763 (1931)). An order staying discovery is thus an appropriate exercise of
this court’s discretion. Id.

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Additionally, “a court may decide that in a particular case it would be wise to stay
discovery on the merits until [certain challenges] have been resolved.” 8A Charles Alan Wright,
Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2040, at 198 (3d ed.
2010). Although a stay of all discovery is generally disfavored, see Bustos v. U.S., 257 F.R.D.
617, 623 (D. Colo. 2009), 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). See also Vivid Techs., Inc. v. Am. Sci. & Eng’r, 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 considering a stay of discovery, this
court considers: (1) the 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. See String Cheese Incident, 2006 WL 894955, at *2 (citing FDIC v. Renda, No.
85-2216-O, 1987 WL 348635, at *2 (D. Kan. 1987)).
It appears Plaintiff does not currently oppose a stay of discovery. (See Doc. No. 39, ¶ 4.)
Therefore, any prejudice to her interest in proceeding expeditiously does not weigh heavily in
the court’s analysis. On the other hand, Defendants maintain that the discovery process would
impose significant burdens because they might be forced to undergo unnecessary or duplicative
discovery if the pending motion to dismiss is ultimately granted. (See Mot. at 8-9.) Defendants
also argue that anything less than a complete stay would violate the entitlement of certain
defendants to be free from discovery due to their assertion of qualified immunity, thus imposing
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an unnecessary burden on them. (See id. at 9.) The court agrees and therefore finds that this
factor weighs in favor of a stay.
There is no indication that granting a stay will inconvenience the court or prejudice the
interests of persons not parties to this action. Additionally, a stay would be in the public’s
interest by conserving public resources, as it would eliminate the possibility of duplicative
discovery, should some of Plaintiff’s claims survive the pending motion to dismiss.
Balancing the factors, in light of Plaintiff’s concurrence with Defendants’ request for a
stay, the court finds that a stay of discovery and other deadlines is appropriate in this case.
Therefore, it is
ORDERED that “Defendants’ Motion for Protective Order from Discovery and to
Vacate Scheduling Order Deadlines” (Doc. No. 21) is GRANTED. Discovery and all deadlines
and hearings in this case are hereby STAYED pending resolution of “Defendants’ Motion to
Dismiss Plaintiff’s Amended Complaint” (Doc. No. 36). The parties shall file a Joint Status
Report within ten days of a ruling on the pending motion to dismiss if any portion of the case
remains pending.
Dated this 4th day of December, 2012.

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