Verrier v. Perrino et al

Filing 39

ORDER granting 37 Defendants' Motion for Stay of Discovery and Enlargement of Time to File Case Management Report. Discovery is STAYED for sixty (60) days until April 2, 2016. Within ten (10) days after the expiration of the sixty (60) day period, if this matter is not resolved by the dispositive motion or the Court has not yet ruled on the motion, the parties are directed to file their Case Management Report. Signed by Magistrate Judge Carol Mirando on 2/2/2016. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH M. VERRIER,
Plaintiff,
v.

Case No: 2:14-cv-744-FTM-29CM

PETER PERRINO and DIANE
LAPAUL,
Defendants.
ORDER
Before the Court are Defendants’ Motion for Stay of Discovery and
Enlargement of Time to File Case Management Report and Incorporated
Memorandum of Law (“Motion to Stay”) (Doc. 37), filed on January 15, 2016. For the
reasons set forth below, Defendant’s Motion to Stay is granted for a period of sixty
(60) days.
Plaintiff initially filed his pro se Complaint (Doc. 1) against Defendants on
December 29, 2014, and subsequently filed an Amended Complaint (Doc. 6), and
Second Amended Complaint (Doc. 18) on May 22, 2015 and July 24, 2015,
respectively. Doc. 37 at 1-3. On August 13, 2015, Defendants filed a Motion to
Dismiss the Second Amended Complaint (Doc. 23), and based on that motion,
Defendants filed a Motion to Stay Discovery. Doc. 30. The undersigned granted
Defendants’ motion on October 23, 2015, stayed discovery for ninety (90) days until
January 21, 2016, and required the parties to file of a case management report by
January 31, 2016. Doc. 32. On December 4, 2015, the Court dismissed without

prejudice Plaintiff’s Second Amended Complaint and granted Plaintiff leave to amend
his complaint. Doc. 34. Plaintiff filed his Third Amended Complaint (Doc. 35), and
Defendants have filed their Motion to Dismiss Plaintiff’s Third Amended Complaint
(“Motion to Dismiss”) (Doc. 36), which asserts failure to state a claim for intentional
discrimination, failure to state a claim for supervisory liability, and failure to state a
claim for a violation of due process and equal protection. Doc. 37 at 5.
Defendants Peter Perrino and Diane LaPaul now jointly request to stay
discovery of this matter once again, pending a ruling by the Court on their motion to
dismiss. The Eleventh Circuit has 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.” Chudasama v.

Mazda Motor Corp., 123 F.3d 1353 (11th Cir. 1983). 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 (11th Cir. 2002).

However, Chadsuma 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

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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 internal quotation marks omitted).
Defendants argue that the Court should grant the stay because they have
made a number of dispositive arguments in their motion to dismiss; and, if discovery
goes forward, unnecessary expense of time and litigation costs will be incurred. Doc.
37 at 6. Defendants also argue that discovery is premature given the issues raised
in the motion to dismiss, and it would be impossible for the parties to intelligently set
out a plan of discovery.

Id.

Moreover, Defendants allege that they cannot

effectively consider the possibility of settlement without knowing the claims against
which they will have to defend. Id.
Because there is a pending motion challenging the legal sufficiency of the
complaint which, after taking a “preliminary peek,” the Court finds meritorious, the
Court will stay discovery for a period of sixty (60) days. Delaying discovery until the
Court rules on whether Plaintiff has stated a viable cause of action will cause Plaintiff
little harm.

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ACCORDINGLY, it is hereby
ORDERED:
1.

Defendants’ Motion for Stay of Discovery and Enlargement of Time to

File Case Management Report and Incorporated Memorandum of Law (Doc. 37) is
GRANTED.
2.

Discovery is STAYED for sixty (60) days until April 2, 2016.

3.

Within ten (10) days after the expiration of the sixty (60) day period, if

this matter is not resolved by the dispositive motion or the Court has not yet ruled on
the motion, the parties are directed to file their Case Management Report.
DONE and ORDERED in Fort Myers, Florida on this 2nd day of February,
2016.

Copies:
Counsel of record

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