Kolesnikov v. Austin et al

Filing 15

ORDER granting 9 Motion to Stay Discovery. All proceedings and discovery in this matter are stayed. A Scheduling Conference will be set, if necessary, after ruling on the defendants' Motion to Dismiss, by Magistrate Judge Kathleen M. Tafoya on 4/4/2014. (eseam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–00879–KMT
ANDREY KOLESNIKOV,
Plaintiff,
v.
OFFICER BENJAMIN AUSTIN, individually and in his capacity as a paid peace office and as
an employee and/or agent of the Denver Police Department and the City of Denver,
OFFICER BRIAN KLAUS, individually and in his capacity as a paid peace office and as an
employee and/or agent of the Denver Police Department and the City of Denver,
CORPORAL JOHN BLEA, individually and in his capacity as a paid peace office and as an
employee and/or agent of the Denver Police Department and the City of Denver,
OFFICER DAN SWINT, individually and in his capacity as a paid peace office and as an
employee and/or agent of the Denver Police Department and the City of Denver,
OFFICER JOHN DOE, individually and in his capacity as a paid peace office and as an
employee and/or agent of the Denver Police Department and the City of Denver,
DENVER POLICE DEPARTMENT, in its capacity as an agent and/or independent contractor of
the City and County of Denver, in its capacity as a governmental entity, the employee and/or
supervisor of Officer Ben Austin, Officer Brian Klaus, Corporal John Blea, Officer Dan Swint,
Officer John Doe, and
CITY AND COUNTY OF DENVER, in its capacity as a governmental entity and/or as the
employer of Officer Ben Austin, Officer Brian Klaus, Corporal John Blea, Officer Dan Swint,
Officer John Doe, and the Denver Police Department,
Defendants.

ORDER

This matter is before the court on Defendants’ “Unopposed Motion to Stay Discovery”
(Doc. No. 9, filed March 27, 2014.)

In his Complaint (Doc. No. 2), Plaintiff alleges claims, pursuant to 42 U.S.C. § 1983, that
the defendants violated his Fourth and Fourteenth Amendment rights. (See id.) Plaintiff also
alleges two state law claims. (See id.) On March 27, 2014, the defendants filed a motion to
dismiss arguing, inter alia, that they are entitled to qualified immunity from Plaintiff’s claims.
(See Doc. No. 8.) The defendants now move for a stay of discovery in this action until it is
determined, by way of a ruling on their motion to dismiss, whether they are entitled to qualified
immunity.
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:
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.

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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). Fed. R. Civ. P. 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.
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
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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. 852216-O, 1987 WL 348635, at *2 (D. Kan. 1987)).
Plaintiff does not oppose the Motion to Stay. (See Doc. No. 9 at 1.) Therefore, any
prejudice to Plaintiff’s ability to proceed expeditiously with this case does not weigh heavily in
the court’s analysis. Moreover, the court finds that any potential prejudice to Plaintiff is
outweighed by the burden the defendants would face if forced to proceed with discovery in spite
of well-established precedent supporting a stay when an immunity defense has been raised.
Further, although qualified immunity is a potential defense only as to Plaintiff’s individualcapacity claims under § 1983, see Rome v. Romero, 225 F.R.D. 640, 643-644 (D. Colo. 2004),
the Supreme Court has recognized:
It is no answer to these concerns [of avoiding disruptive discovery] to say that
discovery can be deferred while pretrial proceedings continue for other
defendants. It is quite likely that, when discovery as to the other parties proceeds,
it would prove necessary for petitioners and their counsel to participate in the
process to ensure the case does not develop in a misleading or slanted way that
causes prejudice to their position. Even if petitioners are not yet themselves
subject to discovery orders, then, they would not be free from the burdens of
discovery.
Iqbal, 556 U.S. at 685. As such, proceeding with discovery as to claims that are not subject to
the assertion of qualified immunity is not a permissible alternative.
The third String Cheese factor also favors a stay. Although the court has an interest in
managing its docket by seeing cases proceed expeditiously, any inconvenience that might result
from rescheduling the docket is outweighed by the potential waste of judicial and party resources
that would result from allowing discovery to proceed, only to have the case dismissed in its
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entirety on the grounds raised in the motions to dismiss. See Nankivil, 216 F.R.D. at 692 (a stay
may be appropriate if “resolution of a preliminary motion may dispose of the entire action.”).
Finally, neither the interest of nonparties nor the public interest in general prompt the
court to reach a different result. Accordingly, on balance, the court finds that a stay of discovery
is appropriate in this case. Therefore, it is
ORDERED that the “Motion to Stay Discovery” (Doc. No. 9) is GRANTED. All
proceedings and discovery in this matter are STAYED. A Scheduling Conference will be set, if
necessary, after ruling on the defendants’ Motion to Dismiss.
Dated this 4th day of April, 2014.

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