Mwangi v. Norman et al

Filing 79

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 12/13/16. The Court respectfully RECOMMENDS that: The Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendants Anthony Norman, Justin K ennedy, and Perry Speelman [#28] be GRANTED IN PART and DENIED IN PART; that Plaintiffs claim for a violation of due process rights under the Fourteenth Amendment (Count III) be DISMISSED, which leaves the excessive force claim as the sole cause of a ction against Defendants Norman, Kennedy, andSpeelman; and that the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Vincent Talty [#57] be GRANTED and all claims against Defendant Talty be DISMISSED based on the statute of limitations . The Court ORDERS The Motion to Strike Surreply [#64] is GRANTED; The Motion Requesting A Scheduling Conference [#71] is DENIED; and the Motion to Stay [#76] is GRANTED. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7) (nmarb, ) Modified on 12/13/2016 to add word ORDER. (nmarb, ).

String Cheese Incident, LLC v. Stylus Shows, Inc., Not Reported in F.Supp.2d (2006)
2006 WL 894955

2006 WL 894955
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
STRING CHEESE INCIDENT, LLC.,
d/b/a Baseline Ticketing, a Colorado
limited liability company, Plaintiff(s),
v.
STYLUS SHOWS, INC., d/b/a The Shakedown
Campout & Music Festival, a Florida corporation;
Hal Abramson, individually, Peter Vaughn Shaver,
Esq., Haver & Associates, an Oregon law firm;
and John Does Nos., I through X., Defendant(s).
No. 1:02–CV–01934–LTB–PA.
|
March 30, 2006.
Attorneys and Law Firms
Richard G. Sander, Paige Barbra Lawrence, Sander
Ingebretsen & Parish, P.C., Denver, CO, for Plaintiff.
Hal R. Abramson, Rockville, MD, pro se.
Patrick Dale Tooley, Dill, Dill, Carr, Stonbraker &
Hutchings, PC, Denver, CO, for Defendants.

ORDER Granting in Part and Denying in Part Shaver
and Haver & Associates' Motion for Stay of Discovery
COAN, Magistrate J.
*1 In this diversity case, plaintiff alleges, among other
claims, that defendant Shaver, an Oregon attorney,
misrepresented defendant Shakedown's financial status in
connection with a music festival to be held in Oregon.
The case was referred to the undersigned for pretrial case
management on November 16, 2005

I.
According to its statement in the Scheduling Order,
plaintiff Baseline contracted to sell tickets for Shakedown
for the Oregon music festival, but became concerned
about Shakedown's financial viability after defendants

Abramson and Stylus Shows began demanding unusual
advances on ticket sales revenues. Baseline asserts that,
throughout the relevant time period, Shaver continually
assured Baseline that Shakedown was fully capitalized.
The music festival eventually was cancelled because
defendants Abramson and Stylus allegedly did not pay the
amount the venue for the festival required.
At the Scheduling Conference, Shaver and Haver verbally
moved for a stay of discovery, which was granted as
to Haver only pending ruling on its motion to dismiss.
See Scheduling Order, Doc. # 24 at 3. The day before,
on January 31, 2006, Shaver and Haver had moved for
a stay of discovery in writing, see Doc. # 23, and the
motion was referred to the undersigned on February
6, 2006. That motion, defendants Shaver and Haver &
Associates' (Haver) Motion to Stay Discovery Pursuant to
Rule 26(c), Doc. # 23, is the matter now before the Court.
Shaver and Haver argue that all discovery in this case
should be stayed pending resolution of their motion to
dismiss for lack of personal jurisdiction. They also claim
that discovery directed to Shaver and his law firm would
risk the disclosure of privileged information, see Reply at
2, and that they would be prejudiced by becoming subject
to the burden and expense of litigation even though the
court has not yet ruled on the pending motion to dismiss.
They ask that all disclosures and discovery be stayed until
the court has determined whether it has jurisdiction over
Shaver and Haver.
Plaintiff objects to any stay, contending that defendants
have failed to cite any authority on point that would
authorize a broad stay of discovery, and that a discovery
stay would only be appropriate if the case were fully
concluded as a result of ruling on the motion to dismiss,
relying upon Greeley Publishing Co. v. Herget, 233 F.R.D.
607, 2006 WL 305510 (D.Colo.2006)(internal citation
omitted). Plaintiff contends that: 1) the case will not
be concluded by a ruling on these defendants' motion
to dismiss because even if they are dismissed, plaintiff
will continue its claims against the other defendants; 2)
discovery will aid in responding to the issues in defendants'
motion to dismiss; and 3) discovery will not be unduly
wasteful or burdensome. Plaintiff also claims that Shaver's
actions in Colorado are clearly sufficient to establish
personal jurisdiction and that, because his actions are
imputed to the law firm of Haver & Associates, Haver
also should remain as a defendant. See Pl. Resp. at 2–

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String Cheese Incident, LLC v. Stylus Shows, Inc., Not Reported in F.Supp.2d (2006)
2006 WL 894955

3. Finally, plaintiff claims prejudice if discovery is stayed
indefinitely.

II.
*2 The Federal Rules of Civil Procedure do not expressly
provide for a stay of proceedings. Rule 26(c) does
however, permit the court to “make any order which
justice requires to protect a party ... from annoyance,
embarrassment, oppression, or undue burden or expense.”
See Fed.R.Civ.P. 26(c)(2005). I find that subjecting a party
to discovery when a motion to dismiss for lack of personal
jurisdiction is pending may subject him to undue burden
or expense, particularly if the motion to dismiss is later
granted.
In order to evaluate Shaver and Haver's motion for stay,
I may weigh the following interests: (1) 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 e.g., FDIC v. Renda, No. 85–
2216–O, 1987 WL 348635, at *2 (D.Kan.987)(unpublished
disposition).
In this action, discovery began on or about February
1, 2006 and the discovery deadline is September 15,
2006. Shaver and Haver's motion to dismiss was filed
Decmber 20, 2005 and is now fully briefed. Appplying
the Renda factors, I find that: 1) to grant defendants'
motion could delay the proceedings for an unknown
period of time until there is a ruling on the pending
motion and that the delay would significantly impact
and prejudice plaintiff's “right to pursue [its] case and
vindicate its claim expeditiously” id. (citing Golden Quality
Ice Cream Co., Inc. v. Deerfield Specialty Papers, 87
F.R.D. 53, 56 (E.D.Pa.1980); 2) defendants, however,
also would undoubtedly be prejudiced if they were forced
to engage in discovery if the court eventually granted
their motion to dismiss; 3) it is generally the court's
practice not to stay cases; 4) if the motion for stay
were denied, an in camera review of allegedly privileged
documents as well as a suitable protective order could
ensure that certain privileged documents would not be
End of Document

produced and that the confidentiality of any privileged
materials ordered produced would be protected; 5) the
court is inconvenienced if matters proceed in a piecemeal
fashion which would occur if discovery proceeded against
some, but not all, defendants; 6) if discovery were to
be completed between plaintiff and the other defendants
before the Shaver and Haver motion to dismiss is ruled
on, all parties would have to engage in a second round of
discovery with Shaver and Haver if their motion to dismiss
is denied; and 7) there is no evidence before me that third
parties or the public interest are or may become involved
in this case. Finally, I agree with plaintiff's arguments only
to the extent that, even if discovery were stayed against
Shaver and Haver and their motion to dismiss is granted,
the case would proceed against the remaining defendants.
After considering counsels' arguments and the Renda
factors, I find that a thirty day stay to allow for the
potential of a ruling on the motion to dismiss will not
unduly prejudice either side. Thereafter, however, more
factors weigh in favor of proceeding with discovery rather
than imposing either an indefinite stay of all discovery or
a stay in favor of Shaver and Haver & Associates.

IV.
*3 Accordingly, for the reasons stated, it is hereby
ORDERED that defendants Shaver and Haver &
Associates' Motion to Stay Discovery Pursuant to Rule
26(c), Doc. # 23, is granted in part and denied in part as
follows. It is further
ORDERED that discovery against Shaver and Haver &
Associates only is stayed until April 30, 2006 and that the
stay is lifted as of May 1, 2006. It is further
ORDERED that, to the extent they have not previously
done so, Shaver and Haver will produce Rule 26(a)(1)
disclosures to opposing counsel no later than May 10,
2006.

All Citations
Not Reported in F.Supp.2d, 2006 WL 894955
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© 2016 Thomson Reuters. No claim to original U.S. Government Works.

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