King v. Benton et al

Filing 52

ORDER granting 49 Motion to Stay Discovery. King is DIRECTED to SHOW CAUSE no later than June 2, 2023 why his case should not be dismissed for his failure to prosecute. The Clerk is DIRECTED to include copies of defendants motions, docs. 48 & 49, with this Order to facilitate Kings response. Signed by Magistrate Judge Christopher L. Ray on 5/18/23. (wwp) Modified on 5/18/2023 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ERNEST HOWARD KING,
Plaintiff,
v.
WARDEN BROOKS L.
BENTON, et al.,
Defendants.

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CV422-157

ORDER
The Court previously directed that pro se plaintiff Ernest Howard
King’s 42 U.S.C. § 1983 complaint be served upon the defendants. See
doc. 22 at 6. Defendants have moved to dismiss, doc. 48, and to stay
pending disposition of that motion, doc. 49. King’s deadlines to respond
in opposition to those motions have passed without any response. See
generally docket; see also S.D. Ga. L. Civ. R. 7.5; doc. 22 at 12. This Court
has construed a plaintiff’s failure to respond to a motion to dismiss as a
failure to prosecute the case. See, e.g., Anderson v. Augustin, 2020 WL
7873059, at *2 (S.D. Ga. Dec. 8, 2020), adopted 2021 WL 27304 (S.D. Ga.
Jan. 4, 2021). However, several days after defendants filed their motion,

King filed a notice that his address has changed. See doc. 50. Given the
timing of the defendants’ filings and that notice, it is not entirely clear
whether King has received notice of the pending motions. 1
Under the circumstances, King must respond and explain his
failure to prosecute this case. King is DIRECTED to SHOW CAUSE no
later than June 2, 2023 why his case should not be dismissed for his
failure to prosecute.

The Clerk is DIRECTED to include copies of

defendants’ motions, docs. 48 & 49, with this Order to facilitate King’s
response. King is advised that failure to respond timely will result
in the dismissal of his case. See Fed. R. Civ. P. 41(b).
Defendants’ request to stay this case pending disposition of their
Motion to Dismiss is due to be granted, whether or not it remains
unopposed. A court has “broad discretion” in determining whether to
grant a stay of discovery. Rivas v. The Bank of New York Mellon, 676 F.
App’x 926, 932 (11th Cir. 2017). The Eleventh Circuit has recognized
that it is appropriate for the Court dispose of “[f]acial challenges to the

King’s notice of the pendency of the motions does not alter his obligation to respond.
The defendants served King by mail. See, e.g., doc. 48 at 2. Service by mail is
complete upon mailing. See Fed. R. Civ. P. 5(b)(2)(C). “[N]onreceipt . . . by the person
to be served generally does not affect the validity of service.” 4B Fed. Prac. & Proc.
Civ. § 1148 (4th ed. 2023).
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legal sufficiency of a claim or defense, such as a motion to dismiss based
on failure to state a claim for relief,” before the parties engage in costly
and potentially unnecessary discovery.

Chudasama v. Mazda Motor

Corp., 123 F.3d 1353, 1367-68 (11th Cir. 1997). However, as this Court
has recognized, “Chudasama does not stand for the proposition that all
discovery in every circumstance should be stayed pending a decision on
a motion to dismiss. 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.” Sams
v. GA W. Gate, LLC, 2016 WL 3339764, at *5 (S.D. Ga. June 10, 2016)
(quoting S. Motors Chevrolet, Inc. v. Gen. Motors, LLC, 2014 WL 5644089
at * 1 (S.D. Ga. Nov. 4, 2014)).
When “deciding whether to stay discovery pending resolution of a
pending motion, the Court inevitably 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.”

SP

Frederica, LLC v. Glynn Cnty., 2015 WL 5242830, at *2 (S.D. Ga. Sept.
8, 2015) (internal quotation marks omitted) (quoting Feldman v. Flood,
176 F.R.D. 651, 652 (M.D. Fla. 1997)). To do so, “a court must take a
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preliminary peek . . . to assess the likelihood that the motion will be
granted.” Taylor v. Jackson, 2017 WL 71654, at *1 n. 2 (S.D. Ga. Jan. 6,
2017) (quoting Sams, 2016 WL 3339764, at *6). “[A] stay should be
granted only where the motion to dismiss appears, upon preliminary
review, ‘to be clearly meritorious and truly case dispositive.’ ” Sams, 2016
WL 3339764 at *6 (quoting Feldman, 176 F.R.D. at 652-53).
The “preliminary peek” at the Motion to Dismiss reveals that a stay
is appropriate. The Motion is not meritless on its face. See doc. 48; see
also Arriaga-Zacarias v. Lewis Taylor Farms, Inc., 2008 WL 4544470, at
*2 (M.D. Ga. Oct. 10, 2008) (granting a stay of discovery deadlines when
a motion to dismiss is not “meritless on its face”). Additionally, a ruling
on the motion to dismiss could be case-dispositive. See doc. 48-1 at 2, 6
(asserting King failed to exhaust his administrative remedies prior to
filing this suit). The need to address King’s failure to respond to the
motions provides additional justification for the stay. On balance, then,
a stay is appropriate. Defendants’ Motion is, therefore, GRANTED.

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Doc. 49. All deadlines in this case are STAYED pending the Court’s
Order on the Motion to Dismiss, doc. 48.
ay of
o May,
ay, 2023.
0 3.
SO ORDERED, this 18th day
______________________________
_________________________
HRISTOPHER
RIS
STO
OPH
P ER L. RAY
CHR
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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