Western Extralite Company v. Mohan Construction, Inc. et al

Filing 18

MEMORANDUM AND ORDER denying 15 Motion to for Continuance of Planning and Scheduling Order. Signed by Magistrate Judge Kenneth G. Gale on 12/5/2011. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA
FOR THE USE AND BENEFIT OF
WESTERN EXTRALITE COMPANY,
et al.,

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)
)
)
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Plaintiffs,
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vs.
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MOHAN CONSTRUCTION, INC., et al., )
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Defendants.
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___________________________________ )

Case No. 11-2491-JAR-KGG

MEMORANDUM AND ORDER
Before the Court is the “Motion for Continuance of Planning and Scheduling
Order” (Doc. 15) filed by Plaintiffs. Defendants have responded in opposition
(Doc. 16) and Plaintiffs has replied (Doc. 17). After a careful review of the
submissions of the parties, the Court DENIES Plaintiffs’ motion. a
Although titled “Motion for Continuance of Planning and Scheduling
Order,” Plaintiffs’ motion (Doc. 15) is, in effect, a motion to stay the proceedings
pending the District Court’s ruling on Plaintiffs’ pending motion to dismiss. Judge
Reid previously discussed the policy in this District for staying discovery in Wolf

v. United States, acknowledging that the general policy is not to stay discovery
even though dispositive motions are pending. 157 F.R.D. 494, 495 (D. Kan. 1994).
Judge Reid also recognized, however, that there are exceptions to this general rule,
holding:
it is appropriate for a court to stay discovery until a
pending dispositive motion is decided, especially where
the case is likely to be finally concluded as a result of the
ruling thereon; where the facts sought through
uncompleted discovery would not affect the resolution of
the motion; or where discovery on all issues of the broad
complaint would be wasteful and burdensome.
Id; see also, Kutilek v. Gannon, 132 F.R.D. 296, 297-98 (D. Kan. 1990); Howse v.
Atkinson, No. 04-2341-GTV-DJW, 2005 WL 994572, at *1 (D.Kan. April 27,
2005). In other words, “[a]lthough a stay of discovery is generally disfavored in
this district, the Court has broad discretion to stay an action while a Motion to
Dismiss is pending pursuant to Fed. R. Civ. P. 26(c).” Smith-Bey v. Reid, No. 08cv-01356-DME-KLM, 2008 WL 5216247, at *1 (D. Colo. Dec. 11, 2008) (citing
String Cheese Incident, LLC v. Stylus Shows, Inc., No. 02-cv-01934-LTB-PAC,
2006 WL 894955, at *2 (D. Colo. Mar.30, 2006)).
The Court has reviewed Plaintiffs’ Motion to Dismiss and corresponding
brief pending before the District Court. (Docs. 13, 14.) In ruling on the present
motion, this Court is not expressing an opinion as to how the District Court might
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rule on Plaintiffs’ motion to dismiss. It is apparent, however, that even if the
District Court were to grant the dispositive motion, such a ruling would not
completely conclude this case as Plaintiffs are merely seeking to dismiss
Defendants’ counterclaim. As such, the Court also finds that proceeding with
discovery “on all issues of the broad complaint” would not be wasteful and
burdensome. Wolf, 157 F.R.D. at 495. For these reasons, Plaintiffs’ motion (Doc.
15) is DENIED.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Continuance
of Planning and Scheduling Order is DENIED.
Dated at Wichita, Kansas, on this 5th day of December, 2011.
S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge

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