Marks v. Comey
ORDER ON DEFENDANT'S MOTION TO STAY denying 19 Motion to Stay Discovery by Magistrate Judge Michael E. Hegarty on 02/06/2017. (mdave, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02106-WYD-MEH
LORETTA LYNCH, Attorney General, United States Department of Justice,
ORDER ON DEFENDANT’S MOTION TO STAY
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant’s Motion to Stay Discovery [filed December 21, 2017; ECF
No. 19]. The motion is fully briefed and the matter has been referred to this Court for disposition.
For the reasons that follow, Defendant’s motion is denied.
Plaintiff initiated this employment discrimination action on August 18, 2016, then filed the
operative Amended Complaint as a matter of course on October 17, 2016, alleging generally that
Defendant “discriminated against, harassed, and ultimately constructively discharged [her from]
employment” and “retaliated against [her] after she made a formal complaint to FBI management
and the EEO about the harassing and discriminatory behavior of numerous male FBI special agents
and management.” See Am. Compl. 1. On December 19, 2016, Defendant responded to the
Amended Complaint by filing a Motion to Dismiss pursuant to Fed. R. Civ. P. 12 (b)(6) arguing that
Plaintiff did not timely exhaust her hostile work environment claim and she fails to state claims for
hostile work environment, constructive discharge, disparate treatment, and retaliation. Mot., ECF
No. 18. The motion to dismiss is now ripe and pending before the Honorable Wiley Y. Daniel.
Two days after filing her motion to dismiss, Defendant filed the present Motion to Stay
Discovery, alleging “[t]he Court should stay discovery until it has resolved Defendant’s pending
motion to dismiss for failure to state a claim which, if granted, will dispose of this case.” See Mot.,
ECF No. 19 at 1. Plaintiff opposes Defendant’s request.
Before the Court received a response to the present motion, this Court held a Scheduling
Conference on January 11, 2017, at which the Court set a schedule for discovery in this case. ECF
No. 18. Thus, discovery in this case apparently has begun.
The decision to issue a protective order and thereby stay discovery rests within the sound
discretion of the trial court. Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990). Such protection is
warranted, upon a showing of good cause, to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c).
In determining whether to grant a stay, courts in this District have typically balanced the
following factors taking into consideration the competing interests at stake: (1) the interests of the
plaintiff 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. String Cheese Incident, LLC
v. Stylus Shows, Inc., No. 02-cv-01934-LTB-PAC, 2006 WL 894955, at *3 (D. Colo. March 30,
2006) (unpublished) (citing FDIC v. Renda, No. 85-2216-O,1987 WL 348635, at *2 (D. Kan. Aug.
At the outset, the Court must address Defendant’s contention that this Court has
“overlooked” the Supreme Court’s “holdings” in denying recent motions to stay. Mot. 8. Defendant
argues that the Supreme Court’s notation in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8
(2007)—of “the understanding that, before proceeding to discovery, a complaint must allege facts
suggestive of illegal conduct”—and its admonition in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)
—“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime
of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions”—require that the Court stay discovery until the motion to dismiss is resolved.
The Court disagrees.
First, the Defendant cites, and the Court has found, no cases in the Tenth Circuit in which
a stay has been imposed pending resolution of a Rule 12(b)(6) motion to dismiss based on the
language in Twombly and Iqbal. This is likely so, because the Iqbal statement references and
supports the proposition that “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” See 556 U.S. at 678–79. Likewise, the Twombly
statement referenced and supported the Supreme Court’s conclusion that a passage in Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)—“a complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief”—and the cases which gave rise to the passage did “not [describe]
the minimum standard of adequate pleading to govern a complaint’s survival.” 550 U.S. at 563.
That is, if the allegations in a complaint require discovery to render them “plausible,” they are likely
mere conclusions that are not entitled to a presumption of truth and are insufficient to survive a
motion to dismiss. Thus, the Twombly/Iqbal language merely supports the Supreme Court’s newly
articulated pleading standard. See Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th
Cir. 2011) (interpreting Twombly’s and Iqbal’s “new” pleading standard as, “to withstand a motion
to dismiss, a complaint must have enough allegations of fact, taken as true, ‘to state a claim to relief
that is plausible on its face’” and citing “two purposes” of this pleading requirement: to ensure a
defendant is placed on sufficient notice and to avoid costly discovery for “a largely groundless
In other words, the language cited by Defendant relates solely to the viability of a claim
when challenged by Fed. R. Civ. P. 8 or 12(b)(6), not to whether discovery should be stayed pending
resolution of a Rule 12(b)(6) motion. The question this language answers is whether a plaintiff
should be permitted discovery to bolster his or her allegations in an effort to survive dismissal:
Or put another way, the plaintiff [argues his] lack of access to relevant information,
when compared to defendant’s access, should not result in the dismissal of his claim.
The Supreme Court has already considered, and rejected, this very possibility. Iqbal,
556 U.S. at 678–79, 129 S. Ct. 1937 (“Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a prior era, but it does
not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.”); . . .
Vega v. Davis, 572 F. App’x 611, 616 (10th Cir. July 22, 2014); see also Jensen v. America’s
Wholesale Lender, 425 F. App’x 761, 764 (10th Cir. Jun. 9, 2011) (“Though [plaintiffs] insist they
could establish their fraud claim with discovery, our pleading standard ‘does not unlock the doors
of discovery for a plaintiff armed with nothing more than conclusions.’”); Mecca v. United States,
389 F. App’x 775, 782 (10th Cir. Jul. 26, 2010) (“Dr. Mecca asserts he could show defendants’
culpability with discovery, but ‘[Fed. R. Civ. P.] 8 ... does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.’”).
Accordingly, the Court finds unpersuasive Defendant’s contention that a stay of discovery
is automatically “required” under Twombly and Iqbal,1 and will proceed with an analysis of the
String Cheese factors. With respect to the first and second factors, Defendant seeks protection from
the burden of discovery at this stage in the case. However, a stay of all discovery is generally
disfavored in this District. Republic of Ecuador v. Bjorkman, 801 F. Supp. 2d 1121, 1128 (D. Colo.
2011). The Court is not convinced that Plaintiff would suffer no prejudice here. In this District, due
to the requirements and demands of an increasing number of criminal matters, the average time
period for civil litigation is approximately 30 months from inception to resolution. Accordingly, a
stay of proceedings in a civil case pending resolution of a dispositive motion can last several months
or more. As such, staying the entire case while Defendant’s motion to dismiss is pending could
substantially delay the ultimate resolution of the matter, with adverse consequences such as a
decrease in evidentiary quality and witness availability.
Thus, the party seeking a protective order under Rule 26(c) cannot sustain the burden of
demonstrating good cause merely by relying upon speculation or conclusory statements.
Tolbert–Smith v. Bodman, 253 F.R.D. 2, 4 (D.D.C. 2008). The movant must show specific facts
demonstrating that the challenged discovery will result in a clearly defined and serious injury to the
party seeking protection. Id.; see also Exum v. United States Olympic Comm., 209 F.R.D. 201, 206
(D. Colo. 2002). Defendant asserts that its motion to dismiss for failure to state a claim for relief
pursuant to Fed. R. Civ. P. 12(b)(6) could dispose of this entire action. However, Defendant’s
motion to dismiss does not challenge the Court’s jurisdiction but, rather, argues that Plaintiff’s
allegations are insufficient to state plausible claims under Title VII. Notably, the parties in this case
Importantly, Plaintiff confirms that she requires no discovery to respond effectively to the
motion to dismiss. Resp. 5, 6.
are represented by competent counsel experienced in the area of employment law; accordingly, the
Court expects the briefing on the motion to dismiss to be comprehensive and well-argued. As such,
it appears possible that the motion could be granted, denied, or granted in part and denied in part;
consequently, Defendant’s position that the motion could dispose of the entire action is speculative,
Defendant claims that it will be burdened because “discovery has costs, most of which will
be borne by Defendants.” Mot. 10. However, defendants always are burdened when they are sued,
whether the case ultimately is dismissed, summary judgment is granted, the case is settled, or a trial
occurs. See Chavez v. Young Am. Ins. Co., No. 06–cv–02419–PSF–BNB, 2007 WL 683973, at *2
(D. Colo. Mar. 2, 2007). Here, the Defendant provides no evidence of a special burden and fails to
“show specific facts demonstrating that the challenged discovery will result in a clearly defined and
serious injury” to the government. See Exum, 209 F.R.D. at 206.
As to the third String Cheese factor, the Court maintains an interest in managing its docket
by seeing the case proceed expeditiously. Consideration of the remaining factors as argued by the
parties—interest of nonparties and the public interest in general—tips in favor of neither position.
On balance, the Court finds the Defendant has failed to demonstrate good cause to justify
an indefinite stay of discovery. This is particularly true where, as in this case, the motion to dismiss
may just as well be denied as it is granted. Furthermore, based on the significant workload of the
Article III judges in this District, it may be several months or more before the pending motion to
dismiss is resolved. Consequently, a consideration of the String Cheese factors, as well as the
general interests of controlling the court’s docket and the fair and speedy administration of justice,
require that the present motion to stay discovery be denied.
Accordingly, for the reasons stated above, the Court ORDERS that Defendant’s Motion to
Stay Discovery [filed December 21, 2017; ECF No. 19] is denied.
Dated at Denver, Colorado, this 6th day of February, 2017.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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