Job Store, Inc., The v. Job Store of Loveland, Ohio, LLC, The et al

Filing 27

ORDER by Magistrate Judge Kristen L. Mix on 3/9/16. Motion to Stay Order SettingScheduling/Planning Conference and Motion for Expedited Briefing # 21 is GRANTED. IT IS FURTHER ORDERED that the Scheduling Conference set for March 29, 2016, at 11:00 a.m. is VACATED.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02228-PAB-KLM
THE JOB STORE, INC., a Colorado corporation,
Plaintiff,
v.
THE JOB STORE OF LOVELAND, OHIO, LLC, an Ohio limited liability company,
THE JOB STORE OF CINCINNATI, OHIO, LLC, an Ohio limited liability company, and
DYTR STAFFING AND MANAGEMENT COMPANY, an Ohio corporation,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Stay Order Setting
Scheduling/Planning Conference and Motion for Expedited Briefing [#21]1 (the
“Motion”). Defendants ask the Court to stay discovery in this case until after the District
Judge has ruled on their pending Motion to Dismiss [#10], which seeks either dismissal on
the basis of an asserted lack of personal jurisdiction or else transfer of this action to the
United States District Court for the Southern District of Ohio.
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-00267-EWN-MEH, 2007 WL 1655362, at *1 (D. Colo. June

1

“[#21]” 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.

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6, 2007) (“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) (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) (stating that 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)).
When exercising its discretion, 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
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proceeding with discovery. String Cheese Incident, 2006 WL 894955, at *2 (citing FDIC
v. Renda, No. 85-2216-O, 1987 WL 348635, at *2 (D. Kan. Aug. 6, 1987)).
In this case, staying discovery may prejudice Plaintiff. Plaintiff states:
[Five] months have already lapsed without Plaintiff having the ability to even
begin formal discovery. This lapse of time is critical because the main claim
involved in this case is trademark infringement. Trademarks are source
identifiers for goods and services. In this case, Defendants later and
subsequent use of the exact same trademarks (The Job Store and Job Store
Staffing) for the exact same services (employment placement services) as
Plaintiff confuses the public as to the source of the parties respective
services. Defendants appear to make use of every on-line marketing source
available, websites, twitter, facebook, Linkedin and various other services.
Confusion in the marketplace continues to grow daily and the public
continues to be deceived by the source of the services provided under
Plaintiff’s trademarks. The deception and harm will continue to Plaintiff and
members of the public who are seeking employment, until this case is
adjudicated.
Response [#24] at 4 (internal citations omitted). Based on these considerations, the Court
finds that the first String Cheese Incident factor weighs against staying discovery.
With regard to the second factor, the Court finds that Defendants have demonstrated
that proceeding with the discovery process presents an undue burden. In support,
Defendants state:
Even with the potential for transfer to another district, Defendants would still
suffer a significant burden because they would be forced to proceed with a
discovery conference, scheduling conference, and discovery when they have
not filed an answer, asserted any affirmative defenses or counterclaims,
much less submitted to jurisdiction in Colorado. The entire purpose for
allowing defendants to challenge jurisdiction before an answer is filed, and
before discovery or other litigation activities commence, is to protect
defendants from being haled into court to defend against claims in distant
forums in which they have no contacts.
Reply [#26] at 5. Based on these considerations, the Court therefore finds that the second
String Cheese Incident factor weighs in favor of staying discovery.
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With regard to the third factor, it is certainly more convenient for the Court to stay
discovery until it is clear that the case will proceed. See Chavous, 201 F.R.D. at 5 (stating
that 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]”). Defendants are correct that proceeding will be
wasteful if the District Judge grants the Motion to Dismiss [#10]. Further, should discovery
proceed and conflict arise between the parties, the Court will have to expend its time and
limited resources to resolve the dispute. If the Motion to Dismiss [#10] is resolved in favor
of Defendants, the Court’s expenditure would be for naught.

Based on these

considerations, the Court therefore finds that the third String Cheese Incident factor weighs
in favor of staying discovery.
With regard to the fourth factor, there are no specific nonparties with significant
particularized interests in this case.

See Response [#24] at 6; Reply [#26] at 7.

Accordingly, the fourth String Cheese Incident factor neither weighs in favor nor against
staying discovery.
With regard to the fifth and final factor, the Court finds that the public’s only interest
in this case is a general interest in its efficient and just resolution. Avoiding wasteful efforts
by the Court clearly serves this interest. 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 Defendants’ Motion to Dismiss [#10] is appropriate. Accordingly,
IT IS HEREBY ORDERED that the Motion to Stay [#21] is GRANTED.
IT IS FURTHER ORDERED that the Scheduling Conference set for March 29, 2016,
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at 11:00 a.m. is VACATED. It shall be reset, if necessary, following resolution of the
Motion to Dismiss [#10].

DATED: March 9, 2016 at Denver, Colorado.

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