Macmillan et al v. Rural Partners In Medicine, LLC

Filing 83

ORDER by Magistrate Judge Susan Prose on 2/5/2024. For the reasons set forth herein, the the 51 Motion to Stay is DENIED. The parties shall contact Judge Prose's chambers within three business days to set a Scheduling Conference. (sbplc3)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-00216-RMR-SBP
JEFFREY T. MACMILLAN, M.D., and
KAREN WENNER, APRN, DNP,
Plaintiffs,
v.
RURAL PARTNERS IN MEDICINE, LLC, a Colorado Limited Liability Company doing business
as inReach Health,
REGIONAL WEST PHYSICIANS CLINIC, a Nebraska non-profit corporation,
JEFFREY HOLLOWAY, M.D., FACS,
MARTHA STRICKER, and
CHRISTOPER PUSEY,
Defendants.
ORDER DENYING MOTION TO STAY DISCOVERY
Susan Prose, United States Magistrate Judge
This matter comes before this court on a motion to stay discovery filed by Rural Partners
in Medicine, LLC d/b/a inReach Health (“inReach”) and Christopher Pusey, the chief executive
officer of inReach. See ECF No. 51 (the “Motion to Stay” or “Motion”). The undersigned
Magistrate Judge considers the Motion pursuant to 28 U.S.C. § 636(b)(1)(A) and the order
referring the motion (ECF No. 52). This court has carefully considered the Motion 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 Motion. For the following reasons, this court
DENIES the Motion.
BACKGROUND
This action stems from a contractual dispute between Plaintiffs and inReach. Plaintiffs

allege that inReach breached professional services agreements between inReach and Dr.
MacMillan and Ms. Wenner (Claims One and Two); wrongfully discharged them in violation of
public policy (Claim Four); wrongfully discharged Dr. MacMillan in violation of the Age
Discrimination in Employment Act (Claim Five); and wrongfully discharged both Plaintiffs in
violation of the Colorado Public Health Emergency Whistleblower Act, Colo. Rev. Stat.
§ 8-14.4-101 et seq. (Claim Six). Amended Complaint, ECF No. 58 ¶¶ 76-91, 100-126. Plaintiffs
also have sued Mr. Pusey for tortious interference with contract. Id. ¶¶ 92-99. These claims are
the focus of the case going forward. This court recommended that all claims against Regional
West Physicians Clinic, Jeffrey Holloway, and Martha Stricker (the “Clinic Defendants”) be
dismissed for lack of personal jurisdiction. ECF No. 72. Plaintiffs subsequently filed a notice of
voluntary dismissal, seeking to dismiss their claims against the Clinic Defendants. Notice of
Voluntary Dismissal of Third Claim for Relief, ECF No. 82.1
On November 2, 2023, inReach and Mr. Pusey filed a motion pursuant to Federal Rule of
Civil Procedure 12(b)(6) seeking dismissal of all claims except Claims One and Two, the breach
of contract claims against inReach. ECF No. 61 (“Motion to Dismiss”). In the Motion to Stay,
inReach and Mr. Pusey2 posit two forms of a stay of discovery. First, inReach requests that all
discovery be stayed except for written discovery related to the breach of contract claims. Motion
at 2. Plaintiffs do not oppose that proposed partial stay. Id. Alternatively, “if the Court

1

Plaintiffs filed the Notice of Voluntary Dismissal after this court recommended that the Clinic
Defendants be awarded costs and fees under Colorado Revised Statutes §§ 13-16-113(2) and 1317-201. See ECF No. 72 at 30. This order does not address the impact, if any, of the dismissal on
the recommendation to award attorney’s fees and costs, nor does this order impact the stay
currently in place with regard to the Clinic Defendants. ECF No. 73.
2
In the following analysis of the Motion to Stay, the court uses the term “inReach” to refer to
both inReach and Mr. Pusey.
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determines that discovery should not proceed piecemeal,” inReach requests—and Plaintiffs
oppose—a stay of all discovery in the matter. Id.; see also Response to Motion to Stay, ECF No.
54 at 2.
LEGAL STANDARDS
While the Federal Rules of Civil Procedure do not expressly provide for a stay of
proceedings while a motion to dismiss is pending, Rule 26(c) does permit the court, 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). Further, “[t]he power to stay
proceedings 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.
How this can best be done calls for the exercise of judgment, which must weigh competing
interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)
(citing Kan. City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)).
Staying discovery pending a ruling on a motion to dismiss is generally disfavored in this
District, see, e.g., Chavez v. Young Am. Ins. Co., No. 06-cv-02419-PSF-BNB, 2007 WL 683973,
at *2 (D. Colo. Mar. 2, 2007), but “good cause may exist to stay discovery if a dispositive
motion has been filed that could resolve the case and a stay does not unduly prejudice the
opposing party.” Namoko v. Milgard Mfg., Inc., No. 06-cv-02031-WDM-MEH, 2007 WL
1063564, at *1 (D. Colo. Apr. 6, 2007). Certain questions—including questions of immunity and
jurisdiction—should be resolved at the earliest stages of litigation and may present more
compelling grounds for a stay. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (recognizing
that “[t]he basic thrust of the qualified-immunity doctrine is to free officials from the concerns of
litigation, including ‘avoidance of disruptive discovery’”) (quoting Siegert v. Gilley, 500 U.S.

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226, 236 (1991) (Kennedy, J. concurring in judgment)); Albright v. Rodriguez, 51 F.3d 1531,
1534 (10th Cir. 1995) (“[T]he Supreme Court has repeatedly ‘stressed the importance of
resolving immunity questions at the earliest possible stage in litigation.’” (citation omitted));
Burkitt v. Pomeroy, No. 15-cv-02386-MSK-KLM, 2016 WL 696107, at *1 (D. Colo. Feb. 22,
2016) (“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.”). But the same is
not necessarily true of a motion—like the partial Motion to Dismiss inReach has filed here—that
tests the adequacy of a plaintiff’s pleading. See, e.g., De Leon v. Marcos, No. 09-cv-2216-MSKMEH, 2009 WL 3756374, at *1 (D. Colo. Nov. 9, 2009) (denying motion to stay pending
resolution of Rule 12(b)(6) motion because “it is the policy in this district not to stay discovery
pending a ruling on motions to dismiss,” and noting that a stay “could substantially delay the
ultimate resolution of the matter”).
In evaluating whether a stay is warranted, the court may also consider the plaintiff's
interests in proceeding expeditiously with the civil action and the potential prejudice to the
plaintiff of a delay, the burden on the defendants, the convenience to the court, and the interests
of third parties and the public. String Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-cv01934-LTB-PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006). The decision to stay
discovery always rests firmly in the sound discretion of the trial court. See, e.g., Wang v. Hsu,
919 F.2d 130, 130 (10th Cir. 1990).
In applying these factors here, the court considers that the parameters of the case recently
have been more clearly defined with the dismissal of Plaintiffs’ only claim against the Clinic
Defendants. With these developments, it is now clear that the fundamental dispute in this
litigation is between Plaintiffs and inReach, and that the breach of contract claims—which

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inReach has not moved to dismiss—are at the center of that dispute. In light of these
circumstances, discovery should now proceed.
ANALYSIS
Plaintiffs’ Interest in Proceeding Expeditiously (Factor 1). Plaintiffs oppose a blanket
stay of all discovery pending a decision on the Motion to Dismiss. Response at 2.3 Plaintiffs
contend that they will be burdened by a complete stay of discovery in this proceeding because
they “have an interest in proceeding expeditiously with discovery in this action such that
granting a stay pending resolution of Defendants’ Motion to Dismiss ‘could substantially delay
the ultimate resolution of the matter, with injurious consequences.’” Id. at 3-4 (cleaned up).
According to Plaintiffs, “[g]iven judicial caseloads, it is unknown how long it will take for the
Court to rule on the . . . Defendants’ pending motion[s] to dismiss.” Id. at 4. For its part, inReach
asserts that a stay “will benefit Plaintiffs by ensuring that the parties do not expend needless time
and expense in litigating claims that may be dismissed.” Motion at 5.
The court finds that Plaintiffs have the better argument on this factor. They, of course, are
in the best position to assess whether they will benefit from, or be harmed by, a stay of
discovery. See Clarendon Nat’l Ins. Co. v. Glickauf, No. 18-cv-02549-CMA-NYW, 2019 WL
1897845, at *2 (D. Colo. Feb. 14, 2019) (rejecting defendant’s argument that both parties would
benefit from a stay of discovery because “discovery appear[ed] extensive” and “[would] require
frequent travel that may be lessened following the resolution of the Motion to Dismiss”). And
Plaintiffs “undoubtedly have an interest in proceeding expeditiously in this matter.” Sanchez v.

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At the outset, the court declines to adopt inReach’s proposal for a partial stay of discovery and
therefore focuses its analysis here on the alternative proposal for a complete stay. See String
Cheese, 2006 WL 894955, at *2 (“The court is inconvenienced if matters proceed in a piecemeal
fashion which would occur if discovery proceeded against some, but not all, defendants.”).
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City and Cnty. of Denver, No. 19-cv-02437-DDD-NYW, 2020 WL 924607, at *5 (D. Colo. Feb.
26, 2020). The position inReach espouses may have carried more weight when the case
encompassed a larger group of defendants and, along with those extra parties, an expanded
number of claims and defenses to be litigated. That broader case necessarily would have
complicated discovery.
Now, however, the case has been honed to the essential dispute between Plaintiffs and
inReach. To be sure, inReach seeks to dismiss a portion of Plaintiffs’ claims, but the court
discerns no advantage in halting discovery until the partial Motion to Dismiss is resolved.
Importantly, the breach of contract claims must be litigated in any event, irrespective of the
uncertain outcome of the Motion to Dispute. See Hagerman v. Eli Lilly & Co., No. 09-cv-00672REB-BNB, 2009 WL 4268369, at *3 (D. Colo. Nov. 20, 2009) (“[D]ispositive motions are
denied more often than they result in the termination of a case. Consequently, . . . it is more
likely than not from a statistical point of view that a delay [of discovery] pending a ruling would
prove unnecessary.”). Further, discovery on the breach of contract claims will significantly
overlap, if not largely duplicate, discovery on the claims at issue in the Motion to Dismiss,
including the claim for tortious interference with contract against Mr. Pusey. Mr. Pusey, the chief
executive officer of inReach, will be required to participate in discovery even if he succeeds in
dismissing the claim against him. It is reasonable to anticipate that Plaintiffs will seek
information and documents concerning Mr. Pusey’s actions and that he will be deposed.
For these reasons, the court finds that the first String Cheese factor weighs strongly
against a stay of discovery.
Burden on Defendant (Factor 2). inReach contends that it will be “significantly
burdened if it must proceed with discovery on the majority of Plaintiffs’ claims (most of which

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[inReach has] moved to dismiss), only to have those claims ultimately dismissed.” Motion at 6.
inReach asserts that it “should not be forced to participate in expensive and burdensome
discovery” because “Plaintiffs have taken a kitchen-sink approach to what is essentially a breach
of contract case[.]” Id. at 7. But the recent refinements of the scope of Plaintiffs’ claims go far to
alleviate this concern. As the court noted in its analysis of the first factor, no economy in the
pretrial process is gained from further deferring discovery that inevitably must be conducted on
the breach of contract claims, no matter the outcome of the Motion to Dismiss.4
At this point, the burden on inReach associated with opening discovery is but one of the
“ordinary” stripe. See, e.g., Graesser v. IQVIA RDS Inc., No. 21-cv-01337-PAB-KLM, 2021 WL
5909017, at *1 (D. Colo. Dec. 14, 2021) (“the ordinary burdens associated with litigation do not
constitute undue burden”); Wells v. Dish Network, LLC, No. 11-cv-00269-CMA-KLM, 2011 WL
2516390, at *1 (D. Colo. June 22, 2011) (same). At bottom, inReach “identifies no burden on it
besides the time and expense warranted by discovery.” Graesser, 2021 WL 5909017, at *2; see
also, e.g., United States ex rel. Pfeifer v. Ela Med., Inc., No. 07-cv-01460-WDM-MEH, 2009
WL 3233668, at *2 (D. Colo. Oct. 7, 2009) (recognizing that an argument that a stay of
discovery could save costs “can be made in all cases in which dispositive motions are pending”).
This factor, too, weighs against a stay of discovery.
Convenience to the court (Factor 3). Continuing to refrain from opening discovery in
this case—particularly now that extraneous parties have been eliminated—does not favor a stay.
“Entry of a stay may cause significant [further] delay of the resolution of this matter, which in
turn makes the Court’s docket less predictable and less manageable.” Choice Genetics USA, LLC
4

As noted above, it also appears doubtful to the court that Mr. Pusey, the chief executive officer
of inReach, “would not be subject to any discovery at all” in connection with the breach of
contract claims. See Motion to Stay at 7.
7

v. Peetz Co-Operative Co., No. 16-cv-00154-WJM-KLM, 2016 WL 9344066, at *2 (D. Colo.
Nov. 7, 2016). This conclusion is bolstered by the fact that the Motion to Dismiss, even if
granted, would not entirely dispose of the remaining claims. No judicial economy is achieved by
further deferring the litigation of this matter, including this court’s obligation to assist the parties
in resolving any potential discovery disputes. For these reasons, the court finds that the third
factor weighs against granting a stay.
Interests of Non-Parties and the Public (Factors 4 and 5). The court is aware of no third
parties with significant, particularized interests in this litigation, making factor four neutral. And
the only interest the public has in this case is in the speedy resolution of legal disputes. Prison
Legal News v. Fed Bureau of Prisons, No. 15-cv-02184-RM-STV, 2017 WL 10619942, at *13
(D. Colo. Feb. 23, 2017). Here, that interest will not be facilitated by a stay, where there is no
dispute that discovery on core substantive issues must be conducted at some point in time, even
if inReach succeeds in further paring the claims. Choice Genetics, 2016 WL 9344066, at *2
(finding that “considerations of fairness and timeliness will not be advanced by the imposition of
a stay”). The fifth factor tips against a stay of discovery.
*

*

*

Having considered all relevant factors, this court concludes that the balance weighs
against a stay of discovery.
CONCLUSION
For the foregoing reasons, it is ORDERED that the Motion to Stay, ECF No. 51, is
DENIED.5 It is FURTHER ORDERED that the parties shall contact Judge Prose’s chambers

5

Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
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within three business days of the date of this order to set a Scheduling Conference.
DATED: February 5, 2024

BY THE COURT:

Susan Prose
United States Magistrate Judge

U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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