McGettigan v. DiMare et al

Filing 30

ORDER granting 22 Motion to Stay. All discovery is stayed pending resolution of Defendant's Motion to Dismiss [#16], by Magistrate Judge Kristen L. Mix on 6/11/2015. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00097-PAB-KLM
TIMOTHY MCGETTIGAN,
Plaintiff,
v.
LESLEY DI MARE, individually and in her official capacity as President of Colorado State
University Pueblo, and
THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM, by
and on behalf of Colorado State University,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Stay [#22]1 (the
“Motion”).2 Plaintiff filed a Response [#27] in opposition to the Motion and Defendant filed

1

“[#22]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

The Motion was filed on behalf of Defendant Lesley Di Mare only. In the Motion, this
Defendant explains that
[t]he parties concur that there are no claims remaining against the Board of
Governors of the Colorado State University System, by and on behalf of Colorado
State University-Pueblo or President Di Mare in her official capacity. The parties,
therefore, will jointly request at the Scheduling Conference that the Court amend the
caption to reflect President Di Mare in her individual capacity as the sole defendant.
Motion [#22] at 1 n.1. The Minutes from the Scheduling Conference do not reflect an oral motion
to this effect and nothing else on the docket modifies the caption. However, Plaintiff’s filings,
including the Response, reflect a caption that includes only Defendant Di Mare and Plaintiff does
not dispute Defendant Di Mare’s above assertion in the Response. As a result, the Court
addresses the Motion assuming that the parties agree that the other Defendants should be

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a Reply [#29] in further support of the Motion. Defendant asks the Court to stay discovery
in this case until after the pending Motion to Dismiss [#16] is resolved. Plaintiff asserts First
Amendment, Fourteenth Amendment, and defamation claims against Defendant in her
official and individual capacities. See Complaint [#1] ¶¶ 49-52, 55. However, in his
request for relief, he appears to seek only damages against Defendant for claims asserted
against her in her individual capacity. Id. at 15-16. This further supports Defendant’s
explanation that Plaintiff does not intend to pursue official capacity claims against
Defendant. In the Motion to Dismiss, Defendant asserts a qualified immunity defense to
Plaintiff’s First Amendment claim3 asserted against her in her individual capacity. See
Motion to Dismiss [#16] at 4-9.
Questions of jurisdiction and immunity should be resolved at the earliest stages of
litigation, so as to conserve the time and resources of the Court and the parties. See
Behrens v. Pelletier, 516 U.S. 299, 308 & 310 (1996) (noting that discovery can be
particularly disruptive when a dispositive motion regarding immunity is pending); Moore v.
Busby, 92 F. App'x 699, 702 (10th Cir. 2004) (affirming trial court's stay of discovery
pending resolution of absolute immunity question); Albright v. Rodriguez, 51 F.3d 1531,

dismissed and that Plaintiff only asserts claims against this Defendant in her individual capacity.
As a result, the Court refers to Defendant Di Mare as “Defendant” throughout this Order. However,
the Court notes that the parties must file a stipulation pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) or
a motion asking the Court to take action with regard to the agreed changes to Plaintiff’s claims and
the caption.
3

In the Scheduling Order governing this case, Plaintiff states that he brings a First
Amendment claim and a defamation claim. Sched. Order [#25] § 3(a). In addition, the Scheduling
Order states that the Motion to Dismiss “raises pure questions of law, which would be fully
dispositive of the claim in this case.” Id. § 8(d). As a result, it appears that while the Complaint
purports to bring a Fourteenth Amendment claim against Defendant, Plaintiff may not be pursuing
that claim. However, neither party addresses this discrepancy and resolution of this discrepancy
is not necessary to ruling on the instant Motion.

2

1534 (10th Cir. 1995) (“the Supreme Court has repeatedly ‘stressed the importance of
resolving immunity questions at the earliest possible stage in litigation.’” (citation omitted)).
Qualified immunity “give[s] government officials a right, not merely to avoid ‘standing trial,’
but also to avoid the burdens of ‘such pretrial matters as discovery . . . .’” Behrens, 516
U.S. at 308 (citation omitted). The Court is obligated to “exercise its discretion so that
officials [properly asserting qualified immunity] are not subjected to unnecessary and
burdensome discovery or trial proceedings.” Crawford-El v. Britton, 523 U.S. 574, 597-98
(1998). However, an assertion of qualified immunity “is not a bar to all discovery.” Rome
v. Romero, 225 F.R.D. 640, 643 (D. Colo. 2004).
When exercising its discretion regarding whether to impose a stay of discovery, the
Court considers the following factors: (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, LLC v. Stylus Shows, Inc., No. 05-cv-01934-LTB-PAC, 2006 WL 894955,
at *2 (D. Colo. Mar. 30, 2006) (citing FDIC v. Renda, No. 85-2216-O, 1987 WL 348635, at
*2 (D. Kan. Aug. 6, 1987)).
Plaintiff argues that an assertion of qualified immunity does not require that all
discovery be stayed and that the discovery sought in this case will not be “broad-reaching.”
Response [#27] at 2-3. Plaintiff further argues that he will be prejudiced by a delay of the
proceedings because there could be a decrease in evidentiary and witness quality. Id. at
3. However, Plaintiff offers no argument regarding any specific prejudice he will suffer or
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explanation of why the evidence or witnesses in this particular case would be effected by
a stay, other than to argue that “[t]here is further prejudice in the continuing risk of evidence
loss as the memories of witnesses fade.” Id. at 4. Plaintiff maintains that it would be more
convenient for the Court if the case was to proceed without a stay and that non-parties
have an interest in the case proceeding “especially in terms of deposing third-party
witnesses whose memories or recollections of the events at issue will inevitably fade with
time.” Id. at 5. Finally, Plaintiff argues that the public has an interest in this case
proceeding without a stay because Plaintiff’s “claims of financial irregularities or
improprieties at CSU-Pueblo which led to the unnecessary layoffs are a matter of public
concern.” Id.
In response to Plaintiff’s argument that witnesses’ memories may fade over time,
Defendant notes that “an administrative hearing was held before a university grievance
panel in November, 2014, and the testimony of key witnesses was memorialized by a court
reporter.” Reply [#29] at 5. In support of the requested relief, Defendant argues that
Plaintiff will not be prejudice by a stay of discovery for two reasons. Motion [#22] at 7.
First, Plaintiff will be out of the country through August and, therefore, will not be available
for discovery for several months. Id. Second, “[t]here is no ongoing harm” because
“Plaintiff’s damages have been fully mitigated . . . .” Id. Defendant maintains that she
would bear an undue burden if discovery proceeds because, to the extent she properly
asserts a qualified immunity defense, she would be required to respond to up to 75 written
discovery requests and attend or defend at least nine fact witness depositions. Id. at 7.
This is because qualified immunity protects the person from suit, not just from liability.
Reply [#29] at 2. Defendant avers that “[a] stay would preserve judicial economy by
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permitting the Court to forgo devoting resources to a case that may be dismissed.” Motion
[#22] at 7. With regard to non-parties, Defendant maintains that no non-parties have an
interest in the litigation and that, as a result, the fourth factor is neutral. Id. Finally,
Defendant argues that the fifth factor weighs in favor of a stay because “a stay would
advance the purposes behind providing qualified immunity to public officials . . . .” Id. at 78. Defendant maintains that Plaintiff’s claims are not a matter of public concern, but rather
relate to “discrete employment actions taken with regards to a single university employee.”
Reply [#29] at 6.
With regard to Plaintiff’s travel plans, Plaintiff argues that while he will be out of the
country and unavailable for a deposition through August, “written discovery can certainly
be conducted during that time.” Response [#27] at 4.
Turning to the String Cheese Incident factors, the Court first addresses the interest
of Plaintiff in proceeding expeditiously with discovery and the potential prejudice to Plaintiff
of a delay. Plaintiff argues that he will be prejudiced if discovery is stayed because
witnesses’ memories may fade. Response [#27] at 3. However, this is a generalized
concern that applies in every case in which a stay is sought. Plaintiff does not offer any
information to support the conclusion that witness testimony or other evidence in this case
may be impacted by a stay. In addition, Defendant notes that some key witnesses’
testimony regarding the issues in this case was recorded at a university hearing. Based
on this information, the Court finds that, at best, the first String Cheese Incident factor
weighs neither in favor nor against a stay.
With regard to the second factor, the Court finds that Defendants have demonstrated
that proceeding with the discovery process presents an undue burden. The defense of
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qualified immunity is available to: (1) individual governmental officials, but not governmental
entities; (2) regarding claims for monetary damages, but not claims for injunctive or
declaratory relief; and (3) regarding claims against individual governmental officials in their
individual capacities, not their official capacities. Rome, 225 F.R.D. at 643 (citations
omitted). Here, the First Amendment claim made in this case is subject to the qualified
immunity defense because: Defendant is a government official, Plaintiff seeks monetary
damages, and the damages sought are based on the claims asserted against Defendant
in her individual capacity only.

See generally Complaint [#1].

Based on these

considerations and strong Supreme Court and Tenth Circuit precedent regarding assertions
of qualified immunity and discovery, the Court finds that the second String Cheese Incident
factor weighs heavily in favor of staying discovery.
With regard to the third factor, Plaintiff suggests that a stay would be inefficient for
the Court. Response [#27] at 5. However, when discovery is stayed, scheduling and
discovery issues will not be raised and will not take time from the Court that could be used
to address other cases. Thus, it is certainly more convenient for the Court to stay discovery
until it is clear that the case will proceed. See Chavous v. D.C. Fin. Responsibility & Mgmt.
Assistance Auth., 201 F.R.D. 1, 5 (D.D.C. 2001) (staying discovery pending decision on a
dispositive motion that would fully resolve the case “furthers the ends of economy and
efficiency, since if [the motion] is granted, there will be no need for [further proceedings].”).
The Court therefore finds that the third String Cheese Incident factor weighs in favor of
staying discovery.
With regard to the fourth factor, while Plaintiff argues that witnesses’ recollections
may fade and that this weighs against a stay, the Court finds that there are no nonparties
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with significant particularized interests in this case. Without any information offered in this
case regarding a particular witness who has a special circumstance, the Court will not find
that the mere possibility that any witnesses’ memory may be less fresh because of a stay
of discovery dictates against a stay. To so find would render this factor meaningless
because the party opposing a stay in any case could offer the same generalized argument.
Accordingly, the fourth String Cheese Incident factor neither weighs in favor nor against
staying discovery.
With regard to the fifth and final factor, Plaintiff asserts that the public has an interest
in this case that would be served by proceeding with discovery because, as he alleges, “a
public state university saw fit to retaliate against a professor who spoke out against his
budgetary and termination decisions [which] is a matter of public concern.” Response [#27]
at 5. Defendant argues that this case is “about discrete employment actions taken with
regards to a single university employee” and that “a stay [ ] furthers the public policy behind
the qualified immunity doctrine.” Reply [#29] at 5-6. The Court agrees with Defendant that
there is a strong public policy behind the qualified immunity doctrine. Among other things,
this includes avoiding unnecessary expenditures of public and private resources on
litigation. The public also has an interest in conserving judicial resources by addressing
dispositive issues early in the litigation. Overall, the public’s interest in the efficient and just
handling of legal disputes favors imposition of a stay in these circumstances. Thus, the fifth
String Cheese Incident factor weighs in favor of staying discovery.
Weighing the relevant factors, the Court concludes that staying discovery pending
resolution of Defendant’s Motion to Dismiss [#16] is appropriate. Accordingly,
IT IS HEREBY ORDERED that the Motion to Stay [#22] is GRANTED. All discovery
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is STAYED pending resolution of Defendant’s Motion to Dismiss [#16].
Dated: June 11, 2015

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