Burkitt v. Pomeroy et al

Filing 55

ORDER by Magistrate Judge Kristen L. Mix on 2/22/16. Motion to Stay All Proceedings and Discovery Pending Determination of Entitlement to Qualified Immunity and Governmental Immunity # 50 is GRANTED. All discovery is stayed pending resolution of Defendants' Motions to Dismiss [#16, #17]. IT IS FURTHER ORDERED that the Scheduling Conference set for March 1, 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-02386-MSK-KLM
ROBERT BURKITT,
Plaintiff,
v.
JENNIFER POMEROY, and
CATHERINE BYREM, individually and as a Deputy Sheriff, Jefferson County, Colorado,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant Byrem’s Motion to Stay All
Proceedings and Discovery Pending Determination of Entitlement to Qualified
Immunity and Governmental Immunity [#50]1 (the “Motion”). Plaintiff filed a Response
[#52] in opposition to the Motion, and Defendant Byrem filed a Reply [#54]. Defendant
Byrem asks the Court to stay discovery in this case until after her pending Motion to
Dismiss [#16] is resolved.2 Thus, if granted, the Motion to Dismiss would dispose of all
claims asserted against each Defendant Byrem.3

In part, Defendant Byrem asserts a

1

“[#50]” 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 to Dismiss [#16], filed on November 16, 2015, is referred to the undersigned
for recommendation [#19].
3

Similarly, if granted, the Motion to Dismiss [#17] filed by Defendant Jennifer Pomeroy
would also dispose of all claims asserted against her. This Motion to Dismiss is also referred to the
undersigned. See [#20].

-1-

defense of qualified immunity with respect to the constitutional claims against her.
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,
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, 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. 1:02-cv-01934-LTB-PAC, 2006 WL 894955, at *2
-2-

(D. Colo. Mar. 30, 2006) (citing FDIC v. Renda, No. 85-2216-O, 1987 WL 348635, at *2 (D.
Kan. Aug. 6, 1987)).
The Court first addresses the interest of Plaintiff in proceeding expeditiously with
discovery and the potential prejudice to Plaintiff of a delay. Plaintiff states that he “has an
interest in conducting discovery on issues which relate to qualified immunity and sovereign
immunity, and denying him this opportunity would be prejudicial to his case.” Response
[#52] at 7. However, Plaintiff fails to specify what type of discovery is necessary before the
Court can determine the issues of qualified immunity and sovereign immunity, and Plaintiff
points to no specific prejudice he might incur as a result of a stay. However, despite these
shortcomings, the Court gives Plaintiff the benefit of the doubt with respect to his interest
in proceeding. Based on the considerations he expresses, 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. The defense of
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). 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 asserts that the “convenience of the Court is
served in allowing discovery to develop evidence on legal issues which will likely be raised
-3-

by the parties as the case proceeds.” Response [#52[ at 7. This may be partially true. But
if the case remains “in a stagnant state” on the Court’s docket due to a stay, judicial
economy is enhanced, as is convenience to the Court. In those circumstances, scheduling
and discovery issues will not be raised and will not take time from the Court that could
otherwise be used to address the pending dispositive motions. 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, there are no nonparties with significant particularized
interests in this case. Response [#52] 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, Plaintiff asserts that “it is clearly in the
interests of the public to allow discovery of alleged abuse of power by law enforcement
officers.” Response [#52] at 7. The Court is not persuaded that stays in section 1983
cases are contrary to the public interest simply because they may delay appropriate
discipline or procedural reform or deter future plaintiffs. The possibility that those effects
may occur is outweighed by several factors, including the possibility that unnecessary
expenditures of public and private resources on litigation will be minimized, the probability
that judicial resources will ultimately be conserved by addressing dispositive issues early
in the litigation, and the probability that both judicial and attorney resources will be
-4-

conserved by clarifying and resolving disputed legal issues at the earliest possible time.
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 Defendants’ Motions to Dismiss [#16, #17] is appropriate. Accordingly,
IT IS HEREBY ORDERED that the Motion to Stay [#50] is GRANTED. All discovery
is stayed pending resolution of Defendants’ Motions to Dismiss [#16, #17].
IT IS FURTHER ORDERED that the Scheduling Conference set for March 1, 2016,
at 11:00 a.m. is VACATED. It shall be reset, if necessary, after resolution of the Motions
to Dismiss [#16, #17].

DATED: February 22, 2016 at Denver, Colorado.

-5-