Norvell v. Blue Cross and Blue Shield Association

Filing 104

MEMORANDUM DECISION & ORDER Plaintiff's Motion for Order Compelling Federal Defendants' Discovery Response (Docket No. 70 ) is DENIED; Federal Defendants' Motion for Protective Order (Docket No. 76 ) is GRANTED; Federal Defendants&# 039; Motion to Dismiss Plaintiff's Fifth Claim for Relief (Docket No. 85 ) is DENIED as moot. Federal Defendants' Motion to Stay Summary Judgment Briefing on the Fifth Claim and Any Proceedings on the Other Claims (Docket No. 87 ) is DENI ED as moot. Plaintiff's Motion for Leave to Amend Complaint (Docket No. 100 ) is GRANTED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

BRUCE NORVELL,
Plaintiff,

Case No.: 1:16-cv-00195-EJL-REB
MEMORANDUM DECISION AND
ORDER RE:

vs.
BLUE CROSS AND BLUE SHIELD
ASSOCIATION, et al.,
Defendants.

PLAINTIFF’S MOTION FOR ORDER
COMPELLING FEDERAL
DEFENDANTS’ DISCOVERY
RESPONSE
(Docket No. 70)
FEDERAL DEFENDANTS’ MOTION
FOR PROTECTIVE ORDER
(Docket No. 76)
FEDERAL DEFENDANTS’ MOTION
TO DISMISS PLAINTIFF’S FIFTH
CLAIM FOR RELIEF
(Docket No. 85)
FEDERAL DEFENDANTS’ MOTION
TO STAY SUMMARY JUDGMENT
BRIEFING ON THE FIFTH CLAIM
AND ANY PROCEEDINGS ON THE
OTHER CLAIMS
(Docket No. 87)
PLAINTIFF’S MOTION FOR LEAVE
TO AMEND COMPLAINT
(Docket No. 100)

Now pending before the Court are the following motions: (1) Plaintiff’s Motion for
Order Compelling Federal Defendants’ Discovery Response (Docket No. 70); (2) Federal
Defendants’ Motion for Protective Order (Docket No. 76); (3) Federal Defendants’ Motion to
Dismiss Plaintiff’s Fifth Claim for Relief (Docket No. 85); (4) Federal Defendants’ Motion to
Stay Summary Judgment Briefing on the Fifth Claim and Any Proceedings on the Other Claims
MEMORANDUM DECISION AND ORDER - 1

(Docket No. 87); and (5) Plaintiff’s Motion for Leave to Amend Complaint (Docket No. 100).
Having carefully considered the record and otherwise being fully advised, the Court enters the
following Memorandum Decision and Order:
FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiff Bruce Norvell was enrolled in the Service Benefit Plan (the “Plan’) – a
nationwide health benefits plan created pursuant to Federal Employee Health Benefit Act
(“FEHBA”), which authorizes Defendant U.S. Office of Personnel Management (“OPM”) to
enter into contracts with private entities (“carriers”) to offer insurance plans to federal
employees, retirees, and their dependents. See 5 U.S.C. § 8902(a); see also Compl., ¶¶ 6-8
(Docket No. 1). The Plan is one such plan and is created by a contract between OPM and
Defendant Blue Cross and Blue Shield Association (“BCBSA”), the latter of which is the Plan’s
carrier and acts on behalf of local Blue Cross and Blue Shield companies such as Defendant Blue
Cross of Idaho Health Service (“BCI”) that, in turn, administer the Plan with respect to health
care services rendered in their individual localities. See Compl., ¶¶ 7-8; see also Norvell v.
Office of Personnel Mgmt., et al., Case No. 1:14-cv-00421-BLW (D. Idaho) 9/23/15 Decision
(“Norvell I” decision”), pp. 2-3 (Docket No. 126).
Relevant here, Plaintiff’s claims stem from heart ablation surgery (a procedure covered
by the Plan) and the resulting cost share that he was initially charged. Specifically, Plaintiff
disagreed with the approximately $3,800 cost share the Plan first told him he would owe in
connection with that surgery. See Compl., ¶ 40-43; see also Norvell I Decision, p. 3; Norvell
Decl., ¶ j, attached as Ex. 7 to Compl. (Docket No. 1, Att. 8). According to Plaintiff, the Plan’s

1

This action has a lengthy factual and procedural backdrop, already recounted within
this Court’s previous orders. Hence, this decision borrows from such earlier orders to “set the
stage” for the at-issue motions – in particular the February 2, 2017 decision found at Docket Nos.
51-52. But see Pl.’s Resp. to Rpt. & Recomm. (Docket No. 53).
MEMORANDUM DECISION AND ORDER - 2

original determination was based, in part, on the treatment being incorrectly or ambiguously
categorized as an “outpatient” procedure, instead of “inpatient” (with related expense
allocations). See generally id. Plaintiff then challenged the amount of the cost share through the
mandatory administrative appeal process, culminating with an administrative review by OPM.
See id.; see also 5 C.F.R. § 890.105(a), (e). Ultimately, Plaintiff had his cost share reduced to
$100. See Compl., ¶ 44; see also Novell I Decision, p. 3; Norvell Decl., ¶ j. But that did not end
the matter; instead, Plaintiff brought an action in this Court – Norvell I.
In Norvell I, Plaintiff argued that a lack of definitions in the FEHBA plans for the terms
“inpatient” and “outpatient” violates two separate laws: (1) an FEHBA provision that requires
FEHBA contracts to contain “a detailed statement of benefits” that includes “definitions of
benefits as [OPM] considers necessary or desirable” (see 5 U.S.C. § 8902(d)); and (2) Public
Health Service Act (“PHSA”) § 2715, which requires the use of certain uniform definitions in
summary documents describing health plans (see 42 U.S.C. § 300gg-15). See Norvell I
Decision, p. 4. Relatedly, Plaintiff alleged that he was injured by the insufficient definitions in
five distinct ways, including purportedly being “unable to compare various [FEHBA] policies
because their statements of benefits contain ambiguous definitions.” See id. at p. 6.
On September 23, 2015, Chief U.S. District Judge B. Lynn Winmill dismissed Norvell I
for lack of subject matter jurisdiction (specifically, for lack of standing), holding, among other
things, that “the inability to compare various plans does not constitute an injury in fact” in part
because that “so-called injury is neither concrete nor particularized.” Id. at p. 7;2 see also id. at
2

In concluding that Plaintiff “failed to allege any discernible injury in fact resulting from
the mischaracterization of his 2013 claim as outpatient care,” Judge Winmill additionally
concluded that: (1) his assertion that he was injured when he was overcharged thousands of
dollars “ignores the fact that he was ultimately successful in getting his cost share obligation
reduced to $100"; (2) “spending hundreds of hours wading through the administrative appeals
process is not a judicially cognizable injury sufficient to confer standing”; (3) “the alleged harm
that [Plaintiff] may experience in having to assist his grandchildren” is “purely hypothetical and
MEMORANDUM DECISION AND ORDER - 3

p. 11 (“Having found that [Plaintiff] has failed to establish that he has suffered an injury in fact
fairly traceable to the Defendants’ conduct, which could be redressed by judicial intervention,
the Court concludes that [Plaintiff] lacks standing. As such, this Court lacks jurisdiction to
entertain [Plaintiff’s] Complaint.”). Plaintiff appealed the dismissal. The Ninth Circuit
summarily affirmed Judge Winmill’s decision to dismiss the case. See Norvell v. Office of
Personnel Mgmt., et al., No. 15-35783, Order (9th Cir. Feb. 25, 2016).
Plaintiff then filed this case – Norvell II – claiming, again, that Defendants’ failure to
include and/or require definitions of the terms “inpatient” and “outpatient” in any of the 2016
FEHBA plans makes it impossible for him and other consumers to make informed decisions, to
understand and compare health care coverages, and to determine benefits and co-payment
responsibilities. Compare generally Norvell I Compl. (Docket No. 1), with Norvell II Compl.
(Docket No. 1) (both discussing PHSA and FEHBA claims, failure to define terms “inpatient”
and “outpatient,” and alleged injuries). According to Plaintiff, “Judge Winmill did not
understand the nature of injury that [Plaintiff] alleged in Norvell I” and, as a result, “[a] fresh
look by another judge would best serve the just determination of this action.” Pl.’s Mot. to Deny
Defs.’ Request for Reassign., p. 2 (Docket No. 23, Att. 1).
In July/September 2016, all current Defendants moved to dismiss this action (Norvell II),
arguing that, under the well-settled doctrines of standing, ripeness, sovereign immunity, res
judicata, and/or collateral estoppel, this action should be dismissed. See generally Fed. Defs.’
Mot. to Dismiss (Docket No. 10); Non-Gov’t Defs.’ Mot. for J. on the Pleadings and Joinder
(Docket No. 27). Alternatively, these Defendants submitted that this case must be dismissed for
not at all imminent” and “cannot constitute an injury in fact”; and (4) Plaintiff’s “contention that
he suffers a continuing injury because he remains vulnerable to a similar situation occurring in
the future does not satisfy the injury in fact requirement” because it “epitomizes the type of
conjectural harm for which standing is always denied.” Norvell I Decision, pp. 6-8.
MEMORANDUM DECISION AND ORDER - 4

lack of standing for the same reasons articulated by Judge Winmill in Norvell I. See id. On
February 2, 2017, the Court dismissed Norvell II, finding that it was procedurally barred by
Norvell I. See 2/2/17 Rpt. & Recomm./MDO, pp. 7-8 (Docket Nos. 51-52) (“Norvell II is nearly
identical to Norvell I – the allegations are the same and, importantly, the alleged injuries are the
same. And, the decision in Norvell I has already determined that these allegations fail to
establish an injury in fact sufficient to incur standing. In short, Plaintiff has not cured the
jurisdictional defect; simply put, he includes no new facts that would prevent application of
Novell I’s holding that Plaintiff failed to establish an injury in fact for this latest claim. Thus,
Norvell I now bars Plaintiff’s claims in this action.”); see also 3/2/17 Order on Rpt. & Recomm.
(Docket No. 56) (adopting February 2, 2017 Report and Recommendation in its entirety); 3/2/17
J. (Docket No. 57).
Plaintiff appealed that decision, and the Ninth Circuit vacated the Court’s judgment and
remanded the action for further proceedings, concluding in relevant part:
The district court dismissed Norvell’s action on the alternate grounds of lack of
Article III standing and issue preclusion. However, Norvell alleged that he is
unable to predict the medical care that would be covered and to project his
copayments, and is therefore unable to understand and compare health benefits
plans. See 5 U.S.C. § 8907(a)-(b) (setting forth information that the Office of
Personnel Management shall make available to “enable the individual to exercise
an informed choice among the types of [health benefits] plans.”). In a case decided
after the district court’s ruling in this case, Robins v. Spokeo, Inc., 867 F.3d 1108,
1113 (9th Cir. 2017), this court explained that in evaluating plaintiff’s claim of
harm, the district court must analyze “whether the statutory provisions at issue were
established to protect [plaintiff’s] concrete interests (as opposed to purely
procedural rights), and if so, . . . whether the specific procedural violations alleged
. . . actually harm, or present a material risk of harm to, such interests.”
In light of this intervening authority, we vacate the judgment and remand for further
proceedings. See Segal v. Am. Tel. & Tel. Co., 606 F.2d 842, 845 (9th Cir. 1979)
(noting exception to issue preclusion where “[t]he issue is one of law and . . . a new
determination is warranted in order to take account of an intervening change in the
applicable legal context” and noting that “[i]ssue preclusion has never been applied
to issues of law with the same rigor as issues of fact.
10/30/17 Mem. (Docket No. 61).
MEMORANDUM DECISION AND ORDER - 5

After remand, the action has slowly progressed, with Plaintiff (re-)submitting discovery
requests to Federal Defendants to help support his claims. See, e.g., Pl.’s First Set of Disc. to
Def. Dep’t of Health and Human Servs. & OPM, attached as Exs. A & B to Fed. Defs.’ Mot. for
Prot. Order (Docket No. 46, Atts. 1-2).3 He contends that the responses to those same discovery
requests were insufficient, so Plaintiff now moves for an order compelling Federal Defendants to
fully respond to the same. See generally Pl.’s Brief in Supp. of Mot. for Order Compelling
Federal Defs.’ Disc. Resp. (“MTC”) (Docket No. 70, Att. 1). Federal Defendants oppose these
efforts and, as before, move for a related protective order. See generally Federal Defs.’ Mot. for
PO.4
DISCUSSION
Citing to Rule 26(b)(1), Plaintiff correctly states that he “may ‘obtain discovery’ from
every party to this matter subject to conditions noted at . . . Rule . . . 26(b), which is ‘relevant to
3

Before the Court’s February 2, 2017 dismissal, Plaintiff had served several requests for
discovery upon Federal Defendants, with the latter moving for a protective order “because
discovery was unnecessary into Mr. Norvell’s Administrative Procedure Act (APA) claims
which can be decided on the administrative record, and responding to discovery would be
inefficient and unnecessary in light of Federal Defendants’ pending motion to dismiss.” Federal
Defs.’ Mot. for Prot. Order & Resp. to Motion for Order Compelling Federal Defs.’ Disc. Resp.
(“Mot. for PO”), p. 2 (Docket No. 75). Because Plaintiffs’ claims were originally dismissed,
Federal Defendants’ then-pending Motion for Protective Order (Docket No. 46) was denied as
moot. See 2/2/17 Rpt. & Recomm./MDO, p. 9. Following remand from the Ninth Circuit,
Plaintiff seeks the same discovery that was the subject of Federal Defendants’ previous Motion
for Protective Order, as well as several discovery requests filed thereafter. See Federal Defs.’
Mot. for PO, pp. 2 & 4 (“Mr. Novell now moves to compel Federal Defendants’ response to
discovery requests. Mr. Norvell does not specify what discovery he seeks, but Federal
Defendants conclude that he means to refer to some or all of the eight discovery requests that he
had served on Federal Defendants before this Court dismissed the action.”) (citation omitted).
4

There are also three other pending motions before the Court: (1) Federal Defendants’
Motion to Dismiss Plaintiff’s Fifth Claim for Relief (Docket No. 85); (2) Federal Defendants’
Motion to Stay Summary Judgment Briefing on the Fifth Claim and Any Proceedings on the
Other Claims (Docket No. 87); and (3) Plaintiff’s Motion for Leave to Amend Complaint
(Docket No. 100). Though substantively independent from Plaintiff’s also-pending Motion to
Compel and Federal Defendants’ Motion for Protective Order, they are nonetheless related (at
least tangentially) and therefore resolved here. See infra.
MEMORANDUM DECISION AND ORDER - 6

any party’s claim . . .’” Pl.’s Brief in Supp. of MTC, p. 1 (quoting Fed. R. Civ. P. 26(b)(1))
(emphasis in original). While this is generally true, courts have broad discretionary power to
control discovery, including the power to stay discovery pending the resolution of a potentially
dispositive motion, including a motion to dismiss. See Jarvis v. Regan, 833 F.2d 149, 155 (9th
Cir. 1987); Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988); Flsmidth Spokane, Inc. v.
Emerson, 2014 WL 979187, *1 (D. Idaho 2014); see also Fed. R. Civ. P. 26(c)(A) & (B) (“The
court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including . . . forbidding the disclosure
or discovery; [and] . . . specifying terms, including time and place or the allocation of expenses,
for the disclosure or discovery . . . .”). Here, for the reasons that follow, the Court finds that a
discovery stay is warranted.
Preliminarily, once the pond is settled and the operative Complaint moves forward
(Plaintiff (1) has already withdrawn what appears to be two earlier attempts at amending his
Complaint (Docket Nos. 66, 79, 81, 97-99), and (2) now moves to amend his Complaint again
(Docket No. 100) (see infra)), Federal Defendants intend to argue via a motion to dismiss that
this Court lacks subject-matter jurisdiction over at least some of Plaintiff’s claims. See Defs.’
Mot. for PO, pp. 4-6. Though the Federal Rules of Civil Procedure do not provide for automatic
or blanket stays of discovery simply because a potentially-dispositive motion is pending, where a
dispositive motion raises issues of jurisdiction, venue, or immunity, courts within the Ninth
Circuit often rule that staying discovery is appropriate pending resolution of these threshold
issues. See, e.g., Wood v. McEwen, 644 F.2d 797, 801-02 (9th Cir. 1981) (“A district court may
limit discovery ‘for good cause’ and may continue to stay discovery when it is convinced that the
plaintiff will be unable to state a claim for relief.”); Camacho v. United States, 2014 WL
12026059, *5 (S.D. Cal. 2014) (“After an analysis of the harms presented by staying discovery
MEMORANDUM DECISION AND ORDER - 7

versus continuing discovery and a look at the likelihood of success of Defendants’ motion to
dismiss Plaintiff’s claim for prospective equitable relief for lack of subject matter jurisdiction,
the Court finds good cause exists at this time to grant the Government’s motion to stay discovery
under Rule 26.”); Kabo Tools Co. v. Porauto Indus. Co., 2013 WL 5947138, *1 (D. Nev. 2013)
(granting stay based on alleged lack of personal jurisdiction); Ministerio Roca Solida v. U.S.
Dep’t of Fish & Wildlife, 288 F.R.D. 500, 506 (D. Nev. 2013) (granting stay based in part on
alleged lack of subject matter jurisdiction); Holmes v. McMillan, 2009 WL 10673424, *3 (D.
Ariz. 2009) (granting motion to compel, reasoning in part: “Notably, Defendant never sought to
stay discovery based on their intention to file, or the pendency of, their motion to dismiss based
on a failure of subject matter jurisdiction.”); 8A Charles Alan Wright, et al., Federal Practice and
Procedure § 2040 (3d ed. 2010) (“[A] court may decide that in a particular case it would be wise
to stay discovery on the merits until challenges to jurisdiction have been resolved.”).
If the result of Federal Defendants’ forthcoming motion to dismiss is a decision from the
Court that Plaintiff is unable to state a claim as a matter of law (independent of any factual
disputes which discovery might resolve), there would be no need for discovery at all. If not
dismissed, there remains the possibility that some portion of the motion would be granted
(Plaintiff’s proposed Amended Complaint is 98 pages long, with 135 claims for relief), which
would refine and better define the contours of the lawsuit, which correspondingly would focus
and refine what discovery would be permissible. Accordingly, the Court is persuaded that good
cause exists to stay the pending discovery until Plaintiffs’ allegations are tested at the threshold,
jurisdictional, level.
There is not a current Case Management Order in place, owing, in part, to Plaintiff’s
successful appeal of the Court’s 2017 dismissal of his claims, and the Court’s heavy docket. In
other words, there is currently no deadline for amending claims, joining parties, or completing
MEMORANDUM DECISION AND ORDER - 8

discovery that would be jeopardized in the event Federal Defendants’ motion to dismiss is
permitted to run its course. See, e.g., Stock v. C.I.R., 2000 WL 33138102, *2 (D. Idaho 2000)
(granting discovery stay because “[t]he parties should first and foremost be focused on the two
pending motions to dismiss. Obviously, if one or both of the motions were to be granted, then
discovery in this case would become moot. On the other hand, if one or both of the motions
were denied, the delay in proceedings with discovery would be of little impact.”) (emphasis
added). If all or some portion of Plaintiff’s case remains after consideration of the Federal
Defendants’ motion to dismiss, the Court will immediately set those deadlines – including
deadlines for amending the pleadings, joining parties, and, relevant here, discovery – that frame
the action’s progress toward trial. At that time, Plaintiff will be able to renew and re-focus his
discovery efforts. But see infra (regarding interplay between APA-related claims and
administrative record).
Finally, Plaintiff raises APA claims against Federal Defendants. Such claims are
generally considered and decided on the administrative record. See, e.g., Lands Council v.
Powell, 395 F.3d 1019, 1029-30 (9th Cir. 2005) (citing Fla. Power & Light Co. v. Lorion, 470
U.S. 729, 743-44 (1985) (“The task of the reviewing court is to apply the appropriate APA
standard of review to the agency decision based on the record the agency presents to the
reviewing court.”) (internal citation omitted))); see also Fed. R. Civ. P. 26(a)(1)(B)(i) (“The
following proceedings are exempt from initial disclosure: . . . an action for review on an
administrative record.”).5 Yet, there is no administrative record on-file from which its adequacy
5

“In limited circumstances, district courts are permitted to admit extra-record evidence:
(1) if admission is necessary to determine ‘whether the agency has considered all relevant factors
and has explained its decision,’ (2) if ‘the agency has relied on documents not in the record,’ (3)
‘when supplementing the record is necessary to explain technical terms or complex subject
matter,’ or (4) ‘when plaintiffs make a showing of agency bad faith.’” Lands Council, 305 F.3d
at 1030 (quoting Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d
1443, 1450 (9th Cir. 1996)). But “[t]hese limited exceptions operate to identify and plug holes in
MEMORANDUM DECISION AND ORDER - 9

to resolve Plaintiff’s claims can even be gleaned. Even so, Plaintiff acknowledges that “[he’ll]
likely need nothing outside the respective administrative records to establish the propriety of the
court favorably ruling upon my claims against the Federal Defendants . . . .” Pl.’s Brief in Supp.
of MTC, p. 3 (emphasis added).6 Given this additional backdrop, the Court will stay discovery
and, consistent with the general rule that judicial review of an agency decision focus on the
administrative record, stay discovery and limit its review of the Federal Defendants’ decision(s)
to the administrative record. To the extent an exception to the general rule exists, it should be
addressed after the administrative record has been filed and vetted.7
There is support in the law and common sense (judicial economy and conserving the
resources of the parties) for a discovery stay. Therefore, Plaintiff’s Motion for Order

the administrative record.” Lands Council, 305 F.3d at 1030. At this time, there is no
administrative record and, therefore, no basis for supplementation via extra-record evidence.
6

Instead, Plaintiff argues that the discovery he seeks from Federal Defendants “will help
in [his] difficult path to establishing the Insurance Defendants’ ‘willful failure’ to provide
mandated information.” Pl.’s Brief in Supp. of MTC, p. 3 (emphasis added). According to
Plaintiff, “[t]he fact that I seek information from the Federal Defendants, regarding my claims
against the Insurance Defendants [(rather than his APA-related claims)] and which is not meant
to buttress the administrative record, does not implicate the Federal Defendants’ responsibility –
as a party to this matter – to respond to my discovery.” Id. (emphasis added). But, as Federal
Defendants point out, Plaintiff “offers no explanation of how his discovery requests relate to his
claims against the [Insurance Defendants]” and, instead, appear to “relate to his allegations of
wrongful action by the Federal Defendants, rather than seeking information which would show if
Insurers willfully failed to comply with regulations.” Federal Defs.’ Mot. for PO, pp. 7-8; see
also id. at p. 8, n.2 (referencing various discovery requests to Federal Defendants and stating:
Mr. Norvell’s discovery requests of Federal Defendants address actions the agencies took and
whether those actions were wrongful, not actions by the Insurers.”) (emphasis in original); see
also Pl.’s Reply in Supp. of MTC/Opp. to Mot. for PO, p. 8 (Docket No. 77) (“Many of my
discovery items have much higher priority than others, and some may not be necessary.”).
7

Plaintiff’s insistence that he has “established” Federal Defendants’ bad faith via certain
allegations within his initial Complaint is not persuasive. See Pl.’s Brief in Supp. of MTC, p. 2.
Not only does this argument ignore the fact that there is no administrative record to help fully
inform the issue, allegations of bad faith within a pleading – without more – cannot operate as an
end-run around the understood “general rule” that courts reviewing an agency decision are
limited to the administrative record.
MEMORANDUM DECISION AND ORDER - 10

Compelling Federal Defendants’ Discovery Response (Docket No. 70) is denied, while Federal
Defendants’ Motion for Protective Order (Docket No. 76) is granted – so long as Plaintiff’s
proposed Amended Complaint proceeds forward, followed by Defendants’ motions to dismiss;
indeed, they are interdependent. Pursuant to Rule 15, unless amending “as a matter of course,”
“a party may amend its pleading only with the opposing party’s written consent or the court’s
leave.” Fed. R. Civ. P. 15(a)(2). Here, Defendants do not oppose Plaintiff’s Motion for Leave to
Amend Complaint. See Joint Status Rpt., p. 2 (Docket No. 102) (regarding Plaintiff’s Motion for
Leave to Amend Complaint: “The Parties agree that the motion is pending. Federal Defendants
and the Non-Government Defendants do not oppose the granting of the motion. In the event that
the Court grants this motion, Federal Defendants intend to file a renewed motion to dismiss, and
the Non-Government Defendants intend to file a motion to dismiss.”); see also 6 Charles Alan
Wright, et al., Federal Practice and Procedure § 1490 (3d ed. 2010) (“If consent is secured, the
usual motion procedure need not be followed. The pleader’s right to amend is not subject to the
court’s discretion and the court must permit the amendment to be filed.”). Therefore, Plaintiff’s
Motion for Leave to Amend Complaint (Docket No. 100) is granted.
In this setting, Federal Defendants’ remaining motions are moot. Because of the
imminent filing of Plaintiff’s Amended Complaint, the bases for Federal Defendants’ (1) Motion
to Dismiss Plaintiff’s Fifth Claim for Relief, and (2) Motion to Stay Summary Judgment Briefing
on the Fifth Claim and Any Proceedings on the Other Claims, no longer apply. See, e.g., Joint
Status Rpt., pp. 2-3 (regarding the two motions: “If the Court grants Plaintiff’s recent motion to
amend, [these] motions would be moot.”).8 Therefore, (1) Federal Defendants’ Motion to
8

As to Federal Defendants’ Motion to Stay Summary Judgment Briefing on the Fifth
Claim and Any Proceedings on the Other Claims, Federal Defendants add that, if Plaintiff’s
Motion for Leave to Amend Complaint is granted, they “intend to file a renewed motion to
dismiss and would continue to believe that summary judgment briefing would be premature prior
to the resolution of that motion to dismiss.” Joint Status Rpt., pp. 2-3.
MEMORANDUM DECISION AND ORDER - 11

Dismiss Plaintiff’s Fifth Claim for Relief (Docket No. 85), and (2) Federal Defendants’ Motion
to Stay Summary Judgment Briefing on the Fifth Claim and Any Proceedings on the Other
Claims (Docket No. 87) are denied as moot.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff’s Motion for Order Compelling Federal Defendants’ Discovery Response
(Docket No. 70) is DENIED;
2. Federal Defendants’ Motion for Protective Order (Docket No. 76) is GRANTED;
3. Federal Defendants’ Motion to Dismiss Plaintiff’s Fifth Claim for Relief (Docket No. 85)
is DENIED as moot.
4. Federal Defendants’ Motion to Stay Summary Judgment Briefing on the Fifth Claim and
Any Proceedings on the Other Claims (Docket No. 87) is DENIED as moot.
5. Plaintiff’s Motion for Leave to Amend Complaint (Docket No. 100) is GRANTED.
a. Plaintiff shall separately file his Amended Complaint with the Court via CM/ECF.
As to each claim for relief, Plaintiff shall specifically identify at the outset of the
stated claim: (1) the particular claim for relief itself, and (2) against whom each
claim for relief is asserted.
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MEMORANDUM DECISION AND ORDER - 12

b. Defendants shall file any motion to dismiss within 28 days after the filing of
Plaintiff’s Amended Complaint. The response and reply briefing on and such
motion to dismiss shall follow the Federal Rules of Civil Procedure and the
District of Idaho Local Civil Rules.

DATED: September 10, 2018
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 13