Latell v. Sovereign Bank et al

Filing 81

ORDER granting 76 Plaintiffs' Agreed Motion for Extension of Deadlines in Amended Case Management and Scheduling Order. The Clerk is directed to issue an amended case management and scheduling order, extending the deadlines, beginning with d iscovery, by 90 days; granting in part 77 Defendant's Second Renewed Motion to Stay Discovery Pending Adjudication of the Motion to Dismiss Plaintiffs' Third Amended Complaint. All deadlines in the amended case management and scheduling order, as well as disclosures and discovery, will be STAYED pending the Court's ruling on the Motion to Dismiss. The Clerk is directed to add a stay flag to the case; granting 78 Defendant's Second Renewed Motion for Extension of Time to Respond to Discovery Requests. Signed by Magistrate Judge Carol Mirando on 1/13/2015. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRANK LATELL, KATHLEEN
LATELL, LATELL CROIX
APARTMENTS, LTD, LATELL
PEPPERTREE APARTMENTS, LTD,
Plaintiff,
v.

Case No: 2:13-cv-565-FtM-29CM

SANTANDER BANK,
Defendant.
ORDER
Before the Court are Plaintiffs’ Agreed Motion for Extension of Deadlines in
Amended Case Management and Scheduling Order (Doc. 76); Defendant’s Second
Renewed Motion to Stay Discovery Pending Adjudication of the Motion to Dismiss
Plaintiffs’ Third Amended Complaint (Doc. 77); and Defendant’s Second Renewed
Motion for Extension of Time to Respond to Discovery Requests (Doc. 78).

The

motions are unopposed and the parties are in agreement that discovery should be
stayed pending the Court’s ruling on Defendant’s Motion to Dismiss (Doc. 73), and
that all other deadlines should be extended.
On February 28, 2014, the Court stayed this matter for a period of 90 days
because there were pending motions to dismiss challenging personal jurisdiction,
standing and the legal sufficiency of the amended complaint. Doc. 41. After the
stay expired, Plaintiff filed a Second Amended Complaint (Doc. 50), and the motions
to dismiss were accordingly denied as moot (Doc. 51). Motions to dismiss the Second

Amended Complaint were filed on July 16, 2014, and were granted on November 13,
2014. Doc. 68. In that Order, Plaintiffs were granted leave to file a third and final
amended complaint. Id. Plaintiff did so (Doc. 70), and Defendant filed a Motion to
Dismiss on December 23, 2014, which is ripe and pending before the Court. An
amended case management and scheduling order set a January 9, 2015 discovery
deadline, with dispositive motions due on February 9, 2015. Doc. 57. The case is
set for the trial term commencing June 1, 2015. Id.
Defendant requests a stay discovery of this matter, citing Chudasama v.

Mazda Motor Corp., 123 F.3d 1353 (11th Cir. 1983), pending a ruling by the Court on
its Motion to Dismiss (Doc. 73), which asserts dismissal based on failure to state a
claim, standing, and Florida’s absolute litigation privilege. Defendant concurrently
seeks an extension of time to respond to Plaintiffs’ First Set of Interrogatories and
Request to Produce until after the discovery stay expires. Doc. 78. Plaintiffs agree
to the stay and seek an extension of the deadlines in the amended case management
and scheduling order.
In Chudasama, the Eleventh Circuit noted that “[f]acial challenges to the legal
sufficiency of a claim or defense, such as a motion to dismiss based on failure to state
a claim for relief, should . . . be resolved before discovery begins. Such a dispute
always presents a purely legal question; there are no issues of fact because the
allegations contained in the pleading are presumed to be true.” Id. at 1367 (footnote
omitted). “Therefore, neither the parties nor the court have any need for discovery
before the court rules on the motion.” Id.; Horsley v. Feldt, 304 F.3d 1125, 1131 n.2

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(11th Cir. 2002). However, Chudasama does not stand for the proposition that all
discovery in every circumstance should be stayed pending a decision on a motion to
dismiss. Koock v. Sugar & Felsenthal, LLP, 2009 WL 2579307, at *2 (M.D. Fla. Aug.
19, 2009).

“Instead, Chudasama and its progeny ‘stand for the much narrower

proposition that courts should not delay ruling on a likely meritorious motion to
dismiss while undue discovery costs mount.’” Id. (citing In re Winn Dixie Stores,

Inc., 2007 WL 1877887, at *1 (M.D. Fla. June 28, 2007)).
In deciding whether to stay discovery pending resolution of a motion to dismiss,
the court must balance the harm produced by a delay in discovery against the
possibility that the motion will be granted and entirely eliminate the need for such
discovery. McCabe v. Foley, 233 F.R.D. 683, 685 (M.D. Fla. 2006) (citation omitted).
To this end, the court must take a “preliminary peek” at the merits of the dispositive
motion to see if it “appears to be clearly meritorious and truly case dispositive.” Id.
(citation and quotation marks omitted).
Defendant argues that good cause exists to grant the stay because it has made
a likely meritorious facial challenge to Plaintiffs’ Third Amended Complaint and if
discovery goes forward, unnecessary costs will be incurred. The Court notes that
previously it granted Defendant’s requests for a stay because there were pending
motions to dismiss based upon most of the same grounds as those currently pending.
Doc. 41, 67. Because there are pending motions challenging the legal sufficiency of
the amended complaint, including standing, the Court will stay discovery. Delaying
discovery until the Court rules on whether Plaintiffs have stated a viable cause of

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action will cause Plaintiffs little harm. This is especially so because Plaintiffs agree
to the stay. Staying discovery necessitates that the case management deadlines be
extended as well. The Court will extend the deadlines by 90 days.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiffs’ Agreed Motion for Extension of Deadlines in Amended Case

Management and Scheduling Order (Doc. 76) is GRANTED. The Clerk is directed
to issue an amended case management and scheduling order, extending the
deadlines, beginning with discovery, by 90 days.
2.

Defendant’s Second Renewed Motion to Stay Discovery Pending

Adjudication of the Motion to Dismiss Plaintiffs’ Third Amended Complaint (Doc. 77)
is GRANTED in part.

All deadlines in the amended case management and

scheduling order, as well as disclosures and discovery, will be STAYED pending the
Court’s ruling on the Motion to Dismiss. The Clerk is directed to add a stay flag to
the case.
3.

Defendant’s Second Renewed Motion for Extension of Time to Respond

to Discovery Requests (Doc. 78) is GRANTED.
DONE and ORDERED in Fort Myers, Florida on this 13th day of January, 2015.

Copies:
Counsel of record

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