Weise v. Colorado Springs, Colorado et al

Filing 39

ORDER granting 19 Motion for Protective Order. By Magistrate Judge Nina Y. Wang on 4/5/2018. (nywlc1, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02696-PAB-NYW
LESLIE WEISE,
Plaintiff,
v.
COLORADO SPRINGS, COLORADO, a municipality,
ANDRES PICO, in his official and individual capacity,
BILL MURRAY, in his official and individual capacity,
AMY TRINIDAD, in her individual capacity,
WYNETTA MASSEY, in her official and individual capacity,
TOM STRAND, in his official and individual capacity,
HELEN COLLINS, in her official and individual capacity,
KEITH KING, in his official and individual capacity,
JILL GAEBLER, in her official and individual capacity,
LARRY BAGLEY, in his official and individual capacity,
DON KIGHT, in his official and individual capacity,
MERV BENNETT, in his official and individual capacity,
Defendants.

ORDER STAYING DISCOVERY
Magistrate Judge Nina Y. Wang
This action is before the court on Defendants’ “Revised Motion for Protective Order to
Stay Discovery” (“Motion to Stay”) [#19, filed January 29, 2018]. The Motion to Stay was
referred to this Magistrate Judge pursuant to the Order of Reference dated December 18, 2017,
[#10], and the memorandum dated January 29, 2018, [#20]. Having reviewed the Motion to Stay
and associated briefing, the entire case file, and the applicable law, this court GRANTS the
Motion to Stay.

FACTUAL BACKGROUND
Plaintiff Leslie Weise initiated this civil action on November 13, 2017, by filing a
Complaint asserting claims for defamation and intentional infliction of emotional distress and for
violations of her First Amendment rights pursuant to 42 U.S.C. § 1983, arising from a request for
records under the Colorado Open Records Act that Plaintiff submitted to the City of Colorado
Springs in August 2015, and a subsequent state court proceeding. See [#1]. On January 2, 2018,
Plaintiff filed an Amended Complaint asserting a seventh claim for stigma-plus defamation in
violation of the Fourteenth Amendment. See [#11]. The relevant allegations are taken from the
Amended Complaint and are as follows.
Plaintiff sought records for:
any air quality studies the Colorado Springs Utilities, an enterprise of Colorado
Springs, conducted and/or commissioned from its air quality services vendor
AECOM Technical Services, Inc. during an official review by the United States
Environmental Protection Agency to determine whether the Colorado Springs
region had air quality that was in attainment of the National Ambient Air Quality
Standard for sulfur dioxide pollution from emissions by the Martin Drake Power
Plant.
[#11 at ¶ 27]. On the basis of attorney client privilege and work product, Defendant Colorado
Springs declined to release an air quality study AECOM Technical Services, Inc. had conducted
at the request of Colorado Springs Utilities in 2015 (the “Air Quality Study”). [Id. at ¶ 28].
Plaintiff challenged the privileged status of the Air Quality Study in El Paso County District
Court, which ultimately entered judgment for Colorado Springs. [Id. at ¶ 29]. Plaintiff appealed
the ruling “based on what she believed were errors in fact and law, including factual
misrepresentations made by Colorado Springs to the District Court.” [Id. at ¶ 30].

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Upon Plaintiff’s filing of the appeal, the clerk’s office mailed each of the parties a
compilation of electronic files containing the record. The clerk’s office inadvertently included in
the compilation the privileged Air Quality Study. [Id. at ¶¶ 32, 33]. Plaintiff read the Air
Quality Study as part of her review of the record, and thereafter filed several motions with the
court of appeals seeking both guidance and “immediate publication of the information contained
in the Air Quality Study.” [Id. at ¶¶ 33, 36].
On November 16, 2016, the court of appeals issued an order acknowledging the
inadvertent disclosure of the Air Quality Study, directing the parties to return the electronic files
they had received, and ordering Plaintiff not to “distribute the sealed material nor download,
retain, or disseminate the record.” [Id. at ¶ 37]. Plaintiff alleges, “[i]mportantly, the Colorado
Court of Appeals did not order that [she] could not discuss the sealed material,” and further
alleges that the court of appeals “confirmed that [she] was not legally barred” from either
“sharing her publicly filed motions or speaking about the contents of the documents that had
been inadvertently disclosed to her.” [Id. at ¶ 38]. Plaintiff then shared with a reporter for the
Colorado Springs Gazette the first two motions she had filed with the court of appeals. In the
motions, Plaintiff stated that: “(1) records affecting public health and safety ‘have been
improperly withheld’ though people near the Martin Drake Power Plant might be exposed to
dangerous levels of sulfur dioxide,” and mentioned that her son attends grade school at a location
within the Martin Drake Power Plant emissions plume; that “(2) Colorado Springs Utilities ‘has
consistently declared to the public and regulatory authorities that it is in compliance with those
(SO2) regulations and standards’ though it had a duty to report its findings of violations to the
Environmental Protection Agency, and a public safety fiduciary duty to report those findings to

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the public”; and “(3) withholding the report by citing attorney-client privilege was ‘an egregious
abuse of the CORA (Colorado Open Records Act) laws.’” [Id. at ¶ 39]. Plaintiff also provided
comment to the reporter. [Id.]
On November 21, 2016, the Colorado Springs Gazette published an article using
Plaintiff’s observations regarding the Air Quality Study.

Specifically, the article quoted

Plaintiff’s motions, accessible to the public, and stated that the “sulfur-dioxide emissions from
the coal-fired Martin Drake Power Plant violated federal standards contrary to filings by
Colorado Springs Utilities,” and attributed this conclusion to Plaintiff. [#11 at ¶ 40]. Plaintiff
asserts the article did not quote the Air Quality Study, and rather acknowledged that she had
returned the Air Quality Study to the court of appeals as ordered. [Id.] The article quoted
Defendant Amy Trinidad, the spokeswoman for Colorado Springs Utilities, disputing Plaintiff’s
characterization of the Air Quality Study and implying that Plaintiff had “fabricat[ed] her
account of the data.” [Id.]
The day after the article was published, Colorado Springs filed a “Cross Motion for Order
to Show Cause” as to why Plaintiff should not be held in contempt of court (“cross motion”), and
asked the court of appeals to impose punitive sanctions, such as jail time, attorney fees, and
fines, against Plaintiff as a result of her discussing the Air Quality Study with the Colorado
Springs Gazette reporter and others. [#11 at ¶ 42]. Plaintiff asserts that Colorado Springs filed
the cross motion “explicitly in retaliation for Ms. Weise’s First Amendment-protected speech
regarding the Air Quality Study and with the purpose of chilling Ms. Weise from speaking
further regarding the Air Quality Study,” and that, “[d]ue to her fear of prosecution by Colorado
Springs, Ms. Weise has not discussed any of the specific contents of the Air Quality Study

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included in the sealed file subsequent to Colorado Springs filing its [motion],” and rather “has
only repeated the generalizations of the Air Quality Study that she had previously made prior to
the filing of the [motion] (which were already in the public record and which Ms. Weise had
confirmed complied with the Colorado Court of Appeals’ November 16, 2017 and November 17,
2017 orders).” [Id. at ¶¶ 43, 44]. On February 8, 2017, the cross motion was dismissed with
prejudice. [Id. at ¶ 46].
Plaintiff alleges that along with filing the cross motion, multiple Colorado Springs
officials negligently, or intentionally, made numerous false and defamatory statements about her
and her comments regarding the Air Quality Study to members of the public, “including
statements made to the Colorado Springs Gazette, to concerned citizens, and during public
meetings.” [#11 at ¶ 48]. She further alleges that the statements “were part of a campaign by
Colorado Springs officials to publicly discredit [her], and vilify her within the Colorado Springs
community, in the hopes that the alarming results of the Air Quality Study Colorado Springs
Utilities had commissioned using public funds could be swept under the rug.” [Id.] For support,
Plaintiff describes specific instances in which Defendants Andres Pico, a member of the
Colorado Springs City Council and former Colorado Springs Utilities Board Chair, Bill Murray,
a member of the Colorado Springs City Council and Colorado Springs Utilities Board Member,
and Defendant Trinidad told members of the public that Plaintiff acted illegally and lied about
the implications of the Air Quality Study. See [id. at ¶¶ 49-60].
Plaintiff represents that she holds a license to practice law in California and is in good
standing with that bar, that she holds an inactive license to practice in New York, and that she
holds a license in retired status in Pennsylvania. [#11 at ¶ 64]. In March 2017, the Colorado

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Springs City Council voted in a closed session to file formal complaints in these states that
Plaintiff “had violated one or more court orders, was not prompt in informing the court, and that
[Plaintiff] had unlawfully disclosed government records,” all of which are charges Plaintiff
disputes. [Id. at ¶¶ 65, 66]. Defendants Tom Strand, Bill Murray, Helen Collins, Keith King, Jill
Gaebler, Andres Pico, Larry Bagley, Don Knight, and Merv Bennett comprised the Colorado
Springs City Council at the time it voted to file complaints against Plaintiff. [Id. at ¶ 65].
Plaintiff alleges the Colorado Springs City Council decided to file the complaints against her as
retaliation for “her speech regarding the Martin Drake Power Plant to the Colorado Springs
Gazette and others.” [Id.] The following month, Defendant Wynetta Massey, the city attorney
for Colorado Springs, authored and filed the formal actions in California, New York, and
Pennsylvania.

[Id. at ¶ 66].

Plaintiff alleges that the accusations regarding professional

misconduct and illegal conduct stated in the formal actions are false and constitute defamation
per se. [Id. at ¶ 69].
In sum, Plaintiff asserts that with respect to the events described herein, she “acted
lawfully and…[t]he statements she made were truthful and did not violate the law, or the rules of
professional conduct in any state, in any way.” [#11 at ¶ 81]. She alleges, as a result of
Defendants’ actions, she has lost stature in her community, has been required to defend herself
against the formal complaints Colorado Springs filed against her in the states in which she is
licensed, has incurred litigation fees, and has suffered emotional distress and loss of business
opportunity. [Id. at ¶¶ 78-80].
Plaintiff asserts her first and second claims for violation of her First Amendment rights
regarding free speech and retaliation against all Defendants other than Amy Trinidad. [#11 at

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19, 21]. Plaintiff asserts her third claim for defamation per se against Defendants Bill Murray,
Amy Trinidad, and Wynetta Massey.

[Id. at 22].

Plaintiff asserts her fourth claim for

defamation per quod, fifth claim for defamation by implication, and sixth claim for intentional
infliction of emotional distress against Defendants Andres Pico, Bill Murray, Amy Trinidad, and
Wynetta Massey. [Id. at 23-24]. Finally, Plaintiff asserts her seventh claim for stigma-plus
defamation in violation of the Fourteenth Amendment against all Defendants.

[Id. at 24].

Plaintiff seeks in relevant part declaratory and injunctive relief and “[c]ompensatory and
consequential damages.” [Id. at 26]. She sues all of the individual defendants in their individual
and official capacity, with the exception of Amy Trinidad, whom she sues in her individual
capacity only. The court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
PROCEDURAL BACKGROUND
The court initially set a Scheduling Conference to occur January 19, 2018, [#7], and then
reset the Scheduling Conference to February 23, 2018. [#16]. Defendants the city of Colorado
Springs, Andres Pico, Bill Murray, Amy Trinidad, Wynetta Massey, Tom Strand, Helen Collins,
Keith King, Jill Gaebler, Larry Bagley, Don Knight, and Merv Bennett (collectively,
“Defendants”) thereafter filed a Motion to Dismiss under Federal Rules of Civil Procedure
12(b)(1) and (b)(6) asserting absolute immunity, qualified immunity, and immunity under the
Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. § § 24-10-101 to -120. [#17].
Defendants concurrently filed the Motion to Stay, asking the court to vacate the Scheduling
Conference and stay discovery in its entirety pending resolution of the Motion to Dismiss. [#19].
Mindful of the relief requested in the Motion to Stay, this court reset the Scheduling Conference

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to March 8, 2018. See [#21]. Plaintiff filed a Response on February 8, 2018, [#23], and
Defendants filed a Reply on February 28, 2018, [#33].
On February 20, 2018, Plaintiff filed a Motion for Leave to file a Second Amended
Complaint, seeking to add several factual allegations in support of her claims for Defamation and
an eighth claim for Abuse of Process, which she would assert against all individual Defendants
other than Defendant Trinidad. See [#30, #30-1, #30-2]. This court consequently vacated the
Scheduling Conference to be reset at a later date. [#32]. Concurrently with this Order, the
undersigned issued a Recommendation that the court grant the Motion to Amend.
ANALYSIS
I.

Applicable Law
A.

Imposing a Stay

The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings;
however, the power to stay “is incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936) (citing Kansas City S. Ry. Co.
v. United States, 282 U.S. 760, 763 (1931)).

See also Fed. R. Civ. P. 26(c) (authorizing the

court to issue, for good cause shown, “an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense”). Although courts in this District
generally disfavor the stay of all discovery, see Wason Ranch Corporation v. Hecla Mining Co.,
No. 07–cv–00267–EWN–MEH, 2007 WL 1655362, at *1 (D. Colo. June 6, 2007), such a stay
may be appropriate pending the resolution of a dispositive motion, Ellis v. J.R.’s County Stores,
Inc., 12-cv-01916-CMA-KLM, 2012 WL 6153513, at *1 (D. Colo. Dec. 11, 2012).

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In determining whether a stay is appropriate, the court weighs interests such as whether
defendants are likely to prevail in the civil action, whether defendants will suffer irreparable
harm, whether the stay will cause substantial harm to other parties to the proceeding, and the
public interests at stake. United Steelworkers of Am. v. Oregon Steel Mills, Inc., 322 F.3d 1222,
1227 (10th Cir. 2003).

The court may also consider plaintiff’s interests in proceeding

expeditiously with the civil action and the potential prejudice to plaintiff of a delay, the burden
on the defendants, and the convenience to the court. String Cheese Incident, LLC v. Stylus
Shows, Inc., No. 1:02–CV–01934–LTB–PA, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006)
(citing FDIC v. Renda, No. 85–2216–O, 1987 WL 348635, at *2 (D. Kan. Aug. 6, 1987)).
“[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.” Ellis, 2012 WL 6153513, at *1 (quoting 8
Charles Alan Wright, et al., Federal Practice & Procedure § 2040, at 521–22 (2d ed.1994))
(further citations omitted). See also Chavous v. D.C. Fin. Responsibility & Mgmt. Assistance
Auth., 201 F.R.D. 1, 2 (D.D.C. 2001) (“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 marks
and citation omitted).
B.

Immunities

Absolute Immunity.

Absolute prosecutorial immunity is a complete bar to a suit for

damages under 42 U.S.C. § 1983. Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976). “The
rationale for according absolute immunity in the civil rights context is to incorporate traditional
common law immunities and to allow functionaries in the judicial system the latitude to perform

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their tasks absent the threat of retaliatory § 1983 litigation.” Snell v. Tunnell, 920 F.2d 673, 68687 (10th Cir. 1990). Whether absolute immunity is available is generally a question of law, and
the party asserting the defense has the burden of demonstrating its applicability. See Burns v.
Reed, 500 U.S. 478, 486 (1991) (“the official seeking absolute immunity bears the burden of
showing that such immunity is justified for the function in question”) (citations omitted). See
also Forrester v. White, 484 U.S. 219, 224 (1988) (Officials who “seek exemption from personal
liability” on the basis of absolute immunity bear “the burden of showing that such an exemption
is justified by overriding considerations of public policy”); Buckley v. Board of County Com’rs
of County of El Paso, No. Civ. 04CV02465LTBPAC, 2005 WL 2359475, at *6 (D. Colo. Sept.
19, 2005). The defense of absolute immunity from civil rights suits applies in several contexts.
For instance, “[a] prosecutor is absolutely immune for activities which are intimately associated
with the judicial process, such as initiating and pursuing a criminal prosecution.” Snell, 920 F.2d
at 686 (quoting Imbler, 424 U.S. at 430). Prosecutorial immunity applies equally to “state
attorneys and agency officials who perform functions analogous to those of a prosecutor in
initiating and pursuing civil and administrative enforcement proceedings.” Buckley, 2005 WL
2359475, at *6 (quoting Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1489 (10th Cir. 1991)
(holding that prosecutors are “absolutely immune from liability for allegedly failing to conduct
an adequate, independent investigation of matters referred to them for prosecution.”) (quotation
omitted)). See also Robins v. Volkswagenwerk AG, 940 F.2d 1369, 1372 (10th Cir. 1991).
However, the same limitations that apply to granting absolute immunity to prosecutors
also apply to other government officials, and, traditionally, immunity “does not extend to a
prosecutor’s actions which may be classified as administrative or investigative.” Imbler, 424

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U.S. at 430–31; Harlow v. Fitzgerald, 457 U.S. 800, 811 n.16 (1982)). The Supreme Court has
been “quite sparing” in recognizing absolute immunity, and generally evaluates entitlement to
absolute immunity according to the local official’s function, rather than his or her identity.
Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). See also Dillard v. Gregory, No. 11–cv–
01928–RBJ–BNB, 2012 WL 5056932, at *5 (D. Colo. Oct. 18, 2012) (“Absolute immunity ‘is
justified and defined by the functions it protects and serves, not by the person to whom it
attaches’”) (quoting Forrester v. White, 484 U.S. 219, 227 (1988) (emphasis in original)). In
assessing which acts are entitled to absolute immunity, the “determinative factor is advocacy
because that is the prosecutor’s main function and the one most akin to his quasi-judicial role.”
Snell, 920 F.2d at 693 (citation and internal quotation omitted).
Qualified Immunity. Section 1983 of Title 42 of the United States Code “allows an
injured person to seek damages against an individual who has violated his or her federal rights
while acting under color of state law.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir.
2014) (quoting Cillo v. City of Greenwood Village, 739 F.3d 451, 459 (10th Cir. 2013)). The
defense of qualified immunity is available to individual defendants named in a § 1983 action,
and “shields public officials…from damages actions unless their conduct was unreasonable in
light of clearly established law.” Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008)
(quotations omitted). Generally, after the defendant asserts qualified immunity, “the plaintiff
carries a two-part burden to show: (1) that the defendant’s actions violated a federal
constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of
the defendant’s unlawful conduct.” Estate of Booker, 745 F.3d at 411 (quoting Cillo, 739 F.3d at
460).

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CGIA. The CGIA provides as follows:
[a] public employee shall be immune from liability in any claim for injury ...
which lies in tort or could lie in tort regardless of whether that may be the type of
action or the form of relief chosen by a claimant and which arises out of an act or
omission of such employee occurring during the performance of his duties and
within the scope of his employment unless the act or omission causing injury was
willful and wanton...
Colo. Rev. Stat. § 24-10-118(2)(a). The CGIA covers “all the circumstances under which the
state, any of its political subdivisions, or the public employees of such public entities may be
liable in actions which lie in tort,” id. at § 24-10-102, and “[g]overnmental immunity raises a
jurisdictional issue.” Springer v. City & County of Denver, 13 P.3d 794, 798 (Colo. 2000).
Where applicable, the CGIA confers immunity to defendants, unless the defendants’ conduct was
willful and wanton. See Middleton v. Hartman, 45 P.3d 721, 728 (Colo. 2002) (“the state is not
liable for its employees’ willful and wanton conduct”); Gray v. University of Colorado Hosp.
Authority, 284 P.3d 191, 197 (Colo. App. 2012) (“the sovereign immunity of public entities is
not waived if their employees’ acts or omissions are willful and wanton.”).
II.

Application
Defendants argue that a stay is appropriate because they have raised three types of

immunities. Specifically, Defendants contend that they are entitled to a stay in their individual
capacity with respect to the § 1983 claims due to absolute and qualified immunity, and that they
all are entitled to a stay with respect to the state law tort claims due to governmental immunity
under the CGIA. [#19 at 8]. Defendants acknowledge that application of these immunities
would not bar Plaintiff’s claims as to the City of Colorado Springs and the individual Defendants
sued in their official capacity with respect to the § 1983 claims, but assert that the “claims
presented in this case are inextricably intertwined, such that a complete stay of discovery on all
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claims against all Defendants is appropriate.” [Id. at 9]. Defendants also argue that Plaintiff’s
First Set of Written Discovery is “extremely broad,” and “would be a substantial distraction for
Defendants, such as City Attorney Wynetta Massey, City Utilities spokesperson Amy Trinidad,
and all the sitting City Council members, to have to devote the attention necessary to respond to
such discovery.” [Id.] See [#19-1].
Plaintiff argues in response that a blanket stay of discovery is unwarranted.

First,

Plaintiff asserts, qualified immunity provides no basis for staying discovery relevant to her
Monell claim against the City of Colorado Springs. Second, the claims against the City “share a
common core of facts with the other claims and, therefore, there is no effective way of staying
discovery with respect to the Section 1983 claim(s) and permitting discovery to move forward on
the other claims.” [#23 at 4 (internal quotation marks omitted)]. Finally, Plaintiff argues that
Defendants may address any concerns they have about the scope of her discovery requests
through targeted objections, rather than a blanket protective order.
While I agree with Plaintiff’s general position that neither the Federal Rules of Civil
Procedure nor controlling case law in this District and Circuit provide for the court to
automatically stay a proceeding upon the filing of a dispositive motion or assertion of an
immunity, I find that the circumstances of this case warrant a stay as requested by Defendants.
Immunity provisions, whether absolute or qualified, serve to spare officials from
unwarranted liability as well as “demands customarily imposed upon those defending a long
drawn out lawsuit,” and are “effectively lost if a case is erroneously permitted to go to
trial.” Siegert v. Gilley, 500 U.S. 226, 232 (1991) (quoting in part Mitchell v. Forsyth, 472 U.S.

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511, 525 (1985)). With respect to qualified immunity, the United States Court of Appeals for the
Tenth Circuit has explained:
Qualified immunity is an entitlement not to stand trial or face the other burdens of
litigation. The privilege is an immunity from suit rather than a mere defense to
liability...Accordingly, qualified immunity questions should be resolved at the
earliest possible stage in litigation. Even such pretrial matters as discovery are to
be avoided if possible, as inquiries of this kind can be peculiarly disruptive of
effective government.
Martin v. County of Santa Fe, 626 F. App’x 736, 740 (10th Cir. 2015) (quoting Jiron v. City of
Lakewood, 392 F.3d 410, 414 (10th Cir. 2004) (emphasis in original)).

Thus, “discovery

generally should be avoided once qualified immunity is raised,” unless the plaintiff demonstrates
“how [such] discovery will raise a genuine fact issue as to the defendants’ qualified immunity
claim.” Id. (quoting Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1387 (10th Cir.1994)).
As Plaintiff asserts, the invocation of qualified immunity is not a bar to all discovery,
however.

The protection the doctrine affords does not extend to governmental entities or

individuals sued in their official capacity, and it has no application to claims for declaratory or
injunctive relief. Rome v. Romero, 225 F.R.D. 640, 643 (D. Colo. 2004). Indeed, “[l]imited
discovery may be necessary when the doctrine is asserted in a motion for summary judgment on
contested factual assertions.”

Id. (citing Crawford–El v. Britton, 523 U.S. 574, 593, n.14

(1998)). In her Response, Plaintiff argues against the court staying discovery pertaining to her
individual capacity claims on account that “discovery is often necessary to resolve immunity or
jurisdictional issues,” but she does not articulate what discovery she requires to resolve such
issues. See [#23 at 5]. It is Plaintiff’s responsibility, not the court’s, to determine and then
describe what limited discovery may be necessary notwithstanding the well-supported assertion
of immunity. I find she fails to do that here.
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With respect to the CGIA, the Colorado Supreme Court has instructed that the trial court
should not proceed with a tort claim until it satisfies itself that defendants acted willfully and
wantonly, thereby confirming that those defendants are not entitled to sovereign immunity.
Martinez v. Estate of Bleck, 379 P.3d 315, 322 (Colo. 2016) (holding that “the trial court erred
when it failed to determine whether [defendant’s] conduct was willful and wanton… [i]nstead, it
determined that [plaintiff] had sufficiently pled that [defendant] acted in a willful and wanton
manner, and that the ultimate determination of whether he in fact acted willfully and wantonly
had to be left to trial.”). And the statute states that once the issue of governmental immunity is
raised, “the court shall suspend discovery, except any discovery necessary to decide the issue of
sovereign immunity, and shall decide such issue on motion.” Colo. Rev. Stat. § 24–10–108. In
her Response, Plaintiff does not specifically address why discovery relevant to the state law
claims should proceed in the face of Defendants’ assertion of the CGIA; and, significant to the
precise inquiry at issue here, she does not describe the discovery she requires to demonstrate the
willful and wanton conduct.
This court acknowledges that some claims and certain Parties will remain even if the
court finds that all three immunities apply, and that structuring discovery to proceed in a
piecemeal fashion is appropriate in certain instances.

See Rome, 225 F.R.D. at 644-45.

However, as the Parties concede, at the heart of the matter impacting all of Plaintiff’s claims is
whether she acted in contravention of the order issued by the court of appeals. The commonality
of discovery relevant to those claims is such that any benefit derived by Plaintiff moving forward
with piecemeal discovery is outweighed by both the corresponding inefficiencies (and disputes
such discovery would generate) and the risk that immunities ultimately found to be applicable

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were disregarded. See Ashcroft v. Iqbal, 556 U.S. 552, 685-86 (2009) (“It is quite likely that,
when discovery as to the other parties proceeds, it would prove necessary for petitioners and
their counsel to participate in the process to ensure the case does not develop in a misleading or
slanted way that causes prejudice to their position…[e]ven if petitioners are not yet themselves
subject to discovery orders, then, they would not be free from the burdens of discovery.”). A
better course of action is simply to plan for and proceed with discovery once there is an
understanding of which claims and Defendants will move forward.
Additionally, the action was initiated in November 2017 and is relatively young, and
there remains ample time for the Parties to engage in discovery following the court’s
determination of which, if any, immunities are applicable. This court acknowledges that the
events giving rise to the action occurred in late 2016 and early 2017, and that relevant discovery
in the form of memories to be testified to and documents to be produced may be compromised as
time passes, but ultimately finds that this consideration does not outweigh the importance of the
court first determining the applicability of the immunities at issue. Moreover, Plaintiff does not
identify specific discovery, such as a witness or Party’s testimony or otherwise, that she fears
will be inaccessible due to a stay in this matter. Accordingly, in addition to the findings stated
above with respect to the specific immunities at issue, I find that the considerations set forth in
String Cheese weigh in favor of a stay. See String Cheese Incident, LLC, 2006 WL 894955, at
*2. The case will remain stayed until the court rules on the Motion to Dismiss, either in its
current form or in an amended form, or unless Judge Brimmer grants the Motion to Amend and
Defendants file an Answer to the Second Amended Complaint (instead of a dispositive motion).
It is therefore

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ORDERED that the Revised Motion for Protective Order to Stay Discovery [#19] is
GRANTED.

DATED: April 5, 2018

BY THE COURT:

_____________
United States Magistrate Judge

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