Vivano v. Schneider et al

Filing 37

ORDER granting 24 Motion to Stay by Magistrate Judge Scott T. Varholak on 6/14/2017. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00235-CMA-STV
ANTHONY VIVIANO,
Plaintiff,
v.
DEPUTY KEVIN SCHNEIDER, in his individual and official capacities, and
DEPUTY NANETTE COLLINS, in her individual and official capacities,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Deputies’ Motion to Stay all Proceedings and
Discovery Pending Determination of Entitlement to Qualified Immunity [#24] (the
“Motion to Stay”), which has been referred to this Court [#25, #28]. Plaintiff responded
to the Motion to Stay on May 24, 2017 [#29], and Defendants replied on June 5, 2017
[#34]. This Court has carefully considered the Motion to Stay and related briefing, the
entire case file and the applicable case law, and has determined that oral argument
would not materially assist in the disposition of the instant Motion to Stay. For the
following reasons, I GRANT the Motion to Stay.
I.

Background 1
According to the Complaint, Johnathan McMillan obtained two different civil

protection orders against Plaintiff. [#1, ¶ 10] These orders restrained Plaintiff from
1

To provide background for the Motion to Stay, the Court draws facts from the
allegations in Plaintiff’s Complaint [#1].

contacting Mr. McMillan, his wife, and their two daughters. [Id. at ¶ 10] On February 6,
2015, Ms. McMillan alerted Defendant Schneider, a Jefferson County Sheriff’s Deputy,
that Plaintiff had contacted an insurance agency with which she and her husband did
business. [Id. at ¶ 11] Ms. McMillan claimed that this contact had violated one of the
protection orders but, in fact, the court order makes no mention of any party or entity
being protected other than the McMillans. [Id.] Defendant Schneider contacted Steven
Jensen, the Chief Deputy District Attorney, who advised Defendant Schneider that
Plaintiff’s actions violated the protective order. [Id. at ¶¶ 16-17] As a result, Defendant
Schneider arrested Plaintiff and transported him to the Jefferson County Jail. [Id. at ¶
19] Plaintiff spent a night in jail before he was released on a personal recognizance
bond and the charges were ultimately dismissed. [Id. at ¶¶ 19-21]
On February 23, 2015, Defendant Collins, a Jefferson County Sheriff’s Deputy,
responded to another call from Ms. McMillan. [Id. at ¶ 22] Ms. McMillan told Defendant
Collins that there was a valid protection order in place. [Id.] This protection order
protects the McMillan family, but does not contain any language restraining Plaintiff from
contacting anyone but Mr. McMillan’s immediate family. [Id. at ¶¶ 24-25] Ms. McMillan
explained that Plaintiff had contacted David Terry, an employee of Mr. McMillan’s
business. [Id. at ¶ 26] Ms. McMillan further explained that Plaintiff had contacted three
other employees via email. [Id. at ¶ 27] Attached to those emails, which Defendant
Collins reviewed, were court documents regarding the dismissal of the previous
protection order violation charges. [Id.] In spite of this court documentation, as a result
of Ms. McMillan’s accusations, Defendant Collins arrested Plaintiff for violation of a
protection order. [Id. at ¶ 28] Plaintiff spent four days at the Jefferson County Jail and

2

an additional sixty days fitted with a GPS monitoring unit. [Id. at ¶ 29] Ultimately, the
Jefferson County District Attorney’s Office dismissed all charges. [Id. at ¶ 30]
On January 26, 2017, Plaintiff filed a Complaint against Deputies Schneider and
Collins, and Chief Deputy District Attorney Steven Jensen. [#1] The Complaint brought
claims pursuant to 42 U.S.C. § 1983 against Deputies Schneider and Collins, and Chief
Deputy District Attorney Jensen for arresting Plaintiff without probable cause, in
violation of the Fourth Amendment. [Id.] The Complaint also brought a § 1983 claim
solely against Defendant Jensen for ratification by a final policymaker. [Id.]
On April 18, 2017, Plaintiff voluntarily dismissed the claims against Defendant
Jensen. [#20] On May 3, 2017, Deputies Schneider and Collins moved to dismiss the
Complaint arguing, in part, that they are protected by qualified immunity (the “Motion to
Dismiss”). [#23 at 7-14] That same day, Deputies Schneider and Collins filed the
instant Motion to Stay seeking to stay all proceedings pending determination of the
Motion to Dismiss. [#24] Plaintiff responded to the Motion to Dismiss on May 25, 2017
[#32], and the Deputies replied on June 6, 2017 [#35].
II.

Analysis
When considering whether to grant 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 defendant 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. See String Cheese Incident, LLC
v. Stylus Shows, Inc., No. 1:02-CV-01934-LTB-PA, 2006 WL 894955, at *2 (D. Colo.

3

Mar. 30, 2006). Considering these factors, the Court concludes that a stay is warranted
pending resolution of the pending Motion to Dismiss.
First, although Plaintiff has an interest in proceeding expeditiously, Plaintiff has
failed to identify any specific prejudice that would befall Plaintiff as a result of any such
delay. Plaintiff argues that witnesses’ memories may fade, witnesses may relocate, and
documents may get misplaced or destroyed. [#29 at 3] But, the factual allegations in
this case are fairly simple. Given the simplicity of the case, it is doubtful that key
witnesses will forget important details relevant to the case. Moreover, there seems to
be a limited number of witnesses and a limited number of documents. Thus, Plaintiff’s
concern about witnesses relocating or documents being lost does not appear
particularly acute in this case. Therefore, because Plaintiff has failed to provide any
“specific examples of how [his] ability to conduct discovery might be adversely affected
by a stay,” the Court finds that Plaintiff’s general interest in proceeding expeditiously
does not overcome other factors discussed below that weigh in favor of a stay. Stone v.
Vail Resorts Dev. Co., No. 09-cv-02081-WYD-KLM, 2010 WL 148278, at *1 (D. Colo.
Jan. 7, 2010).
Second, the Court finds that proceeding with discovery would impose a burden
upon Defendants. A ruling in favor of Defendants on the Motion to Dismiss would be
dispositive.

Thus, staying discovery may relieve the burdens of discovery for

Defendants. This fact is particularly important in this case, where Defendants have
asserted a qualified immunity defense. As the Supreme Court has made clear, “[t]he
basic thrust of the qualified-immunity doctrine is to free officials from the concerns of
litigation, including ‘avoidance of disruptive discovery.’” Ashcroft v. Iqbal, 556 U.S. 662,

4

685 (2009) (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring
in the judgment)). 2 Accordingly, the second factor supports granting the Motion to Stay.
Third, the Court considers its own convenience.

The Court recognizes the

general policy in this District disfavoring a complete stay of discovery, “as the resulting
delay makes the Court’s docket less predictable and, hence, less manageable.” Stone,
2010 WL 148278, at *3. However, courts have acknowledged that “[w]here a pending
motion may dispose of an action . . . a stay of proceedings may allow the Court to avoid
expending resources in managing an action that ultimately will be dismissed.” Id. Here,
if successful, the Motion to Dismiss would entirely dispose of the instant action. Given
that this proceeding is at the very early stages, the Court finds that the interests of
judicial economy weigh in favor of granting the stay.
The fourth and fifth factors are either neutral or support staying this action.
Neither party has identified any nonparty whose interests would be impacted by the
requested stay. Moreover, while the public has an interest in the speedy resolution of
legal disputes, see, e.g., Waisanen v. Terracon Consultants, Inc., No. 09-cv-01104MSK-KMT, 2009 WL 5184699, at *2 (D. Colo. Dec. 22, 2009), “there is also a strong
public policy behind the qualified immunity doctrine. Among other things, this includes
avoiding unnecessary expenditures of public and private resources on litigation.”
Chapman v. Fed. Bureau of Prisons, No. 15-cv-00279-WYD-KLM, 2015 WL 4574863,
at *4 (D. Colo. July 30, 2015). As a result, this fifth factor supports granting the stay.

2

The Motion to Dismiss has been referred to this Court. [# 28] Through this discussion,
the Court in no way passes on the merits of the Motion to Dismiss.
5

Considering the factors set forth above, the Court determines that a stay of
discovery pending resolution of the Motion to Dismiss is warranted. Accordingly, it is
ORDERED that the Motion to Stay [#24] is GRANTED.

DATED: June 14, 2017

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

6