Monroe v. City of Lawrence, Kansas et al

Filing 71

MEMORANDUM AND ORDER granting 34 Motion to Stay Discovery. All discovery is hereby stayed as to both Defendants until such time as the Court rules on 23 Motion to Dismiss. Signed by Magistrate Judge David J. Waxse on 11/21/2013. (do)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL MONROE,
Plaintiff,
v.

Case No. 13-2086-EFM-DJW

CITY OF LAWRENCE, KANSAS, et al.
Defendants.

MEMORANDUM AND ORDER
The Court has before it Defendants’ Motion to Stay Discovery (ECF No. 34).
Defendants City of Lawrence, Kansas (“City”) and Tarik Khatib request an order staying
discovery in this case until their pending Motion to Dismiss (ECF No. 23) is resolved. Plaintiff
Michael Monroe opposes the Motion to Stay Discovery as to both Defendants. For the reasons
set forth below, the Court concludes that the Motion to Stay Discovery should be granted as to
both Defendants.
I.

Nature of the Matter Before the Court
Monroe brings this lawsuit against Defendants based on alleged violations of his
constitutional rights related to his termination from employment as a police officer. Monroe was
employed by the City in the Lawrence Police Department (“LPD”), where Khatib is the Chief of
Police. Monroe asserts claims against the City for racial discrimination under Title VII and 42
U.S.C. § 1981 and for violation of his property and liberty interests without due process under 42
U.S.C. § 1983. Monroe also asserts a claim against Khatib for racial discrimination pursuant to
42 U.S.C. § 1981.

Defendants filed a motion to dismiss based partly upon Khatib’s asserted affirmative
defense of qualified immunity. Defendants then filed the instant Motion, requesting a stay of
discovery as to both Defendants. They argue that all discovery related to the claims against
Khatib should be stayed until the Court determines whether he is immune from suit. They
further argue that the claims against the City are inexorably intertwined with the claims against
Khatib. Thus, they assert that allowing discovery to proceed against the City while the issue of
Khatib’s immunity is pending would prejudice Khatib.
In his response, Monroe argues that Khatib is not entitled to a stay of discovery because
Khatib will be a key witness in this matter and will participate in discovery regardless of whether
he is a named Defendant. Monroe also argues that the City is not entitled to a stay of discovery
because the City has not alleged that any prejudice would arise from permitting discovery to
continue regarding the claims against it.
In their reply, Defendants argue first that Khatib is entitled to a stay of discovery as a
matter of law, regardless of whether he may be a witness. They also argue that discovery should
be stayed as to the City because the claims against the City and Khatib share a common nucleus
of facts which would make bifurcated discovery impractical and prejudicial to Khatib.
Monroe sur-replied that Defendants have unclean hands, because they served written
discovery to Monroe after raising the qualified immunity defense. Defendants sur-replied that
there is no authority for the argument raised by Monroe in his sur-reply, that the discovery was
limited, and that they filed their motion to dismiss following clarification from Monroe that he
was asserting claims against Khatib in his individual capacity.

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II.

Legal Standard for Motion to Stay Discovery
The decision to stay discovery and other pretrial proceedings is firmly vested in the sound
discretion of the trial court.1 The Tenth Circuit, however, has held that “the right to proceed in
court should not be denied except under the most extreme circumstances.”2 Therefore, as a
general rule, the District of Kansas does not favor staying pretrial proceedings even though
dispositive motions are pending.3 An exception is made however when the party requesting the
stay has filed a dispositive motion asserting absolute or qualified immunity.4
It is well settled that a defendant is entitled to have a question of immunity resolved
before being required to engage in discovery and other pretrial proceedings.5

Qualified

immunity “spare[s] a defendant not only unwarranted liability, but unwarranted demands
customarily imposed upon those defending a long drawn out lawsuit.”6

Further it is “an

immunity from suit rather than a mere defense to liability[,] and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to trial.”7
III.

Application of the Standard to Facts of this Case
A.

Stay as to Khatib

1

Pet Milk Co. v. Ritter, 323 F.2d 586, 588 (10th Cir. 1963); McCoy v. U.S., No. 07-2097-CM, 2007 WL 2071770, at
*2 (D. Kan. July 16, 2007).
2
Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983).
3
McCoy, 2007 WL 2071770, at *2; Wolf v. U.S., 157 F.R.D. 494, 495 (D. Kan. 1994).
4
McCoy, 2007 WL 2071770, at *2; Holroyd v. Dep’t of Veterans Affairs, No. 06-4133-SAC, 2007 WL 1585846, at
*1 (D. Kan. June 1, 2007).
5
See Siegert v. Gilley, 500 U.S. 226, 232-33 (1991) (until the threshold immunity question is resolved, discovery
and other pretrial proceedings should not be allowed); Workman v. Jordan, 958 F.2d 332, 336 (10th Cir. 1992)
(when a defendant asserts qualified immunity, the court should grant the defendant’s request for stay of discovery
until the immunity issue is resolved).
6
Siegert, 500 U.S. at 232.
7
Id. at 233 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

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Khatib argues that he is entitled to a stay of discovery as a matter of law until the motion
to dismiss asserting a qualified immunity defense on his behalf is resolved. Monroe argues that
discovery should not be stayed as to Khatib, because he must participate in discovery regardless
of whether he is dismissed as a Defendant. Monroe further argues that Khatib will be burdened
by this litigation regardless of his status as a party or a non-party.
Monroe’s arguments disregard well settled law stating that where a defendant raises a
qualified immunity defense, discovery should be stayed until that defense is resolved.8 The
Court therefore concludes that the Motion to Stay Discovery should be granted as to Khatib
pending a ruling on the motion to dismiss.
B.

Stay as to the City

Defendants argue that discovery should also be stayed as to the City pending a ruling on
Khatib’s qualified immunity defense in the Motion to Dismiss.

They argue that allowing

discovery to move forward would necessarily require Khatib’s participation while the specter of
the potential of personal liability hangs over his head. Permitting discovery to proceed, they
assert, would deny Khatib the remedy that his entitlement to a stay of discovery was intended to
address and would result in substantial prejudice to Khatib. Monroe responds that the City
would not be prejudiced by discovery continuing because all claims brought against Khatib are
also brought against the City. Defendants reply that because the claims against the City and
Khatib share a common nucleus of facts, allowing bifurcated discovery is impractical, if not

8

Saleh v. Ray, 107 Fed. Appx. 865, 867 (10th Cir. 2004) (citing Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.
1992)).

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impossible, and would substantially prejudice Khatib.
The parties cite to a 2005 District of Kansas case, Howse v. Atkinson.9 In Howse, two
defendants asserted a qualified immunity defense in their Motion to Dismiss. Those two
defendants, along with a third defendant KUPI (who was not asserting qualified immunity), also
filed a motion to stay discovery pending the qualified immunity determination in the motion to
dismiss.10 The court ruled that the two defendants asserting qualified immunity were clearly
entitled to a stay of discovery.11 The court also ruled that the third defendant KUPI, although not
asserting qualified immunity, was entitled to a stay of discovery as well because “a bifurcation of
discovery is wholly inefficient, and judicial economy and the danger of unfair and substantial
prejudice to [] KUPI warrants a stay of discovery as to all parties and claims pending the
resolution of the motion to dismiss . . . .”12 The court found risk of prejudice to the plaintiff to be
small because the stay of discovery was only temporary until the court ruled on the motion to
dismiss.13
Defendants argue that the situation here is analogous to that in Howse and that discovery
should be stayed as to both Defendants even though the City did not raise a qualified immunity
defense. Monroe responds that Howse should be distinguished from the present case because the
City has not alleged that any prejudice would arise from permitting discovery to continue
regarding the claims against it.

Defendants reiterate in response that Khatib would be

9

Howse v. Atkinson, 04-2341GTV-DJW, 2005 WL 994572 (D. Kan. April 27, 2005).
Id. at *1.
11
Id. at *2.
12
Id.
13
Id.
10

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substantially prejudiced if the Court were to allow discovery to proceed against the City while
discovery was stayed as to Khatib. Defendants argue that the bifurcated discovery would
involve issues related to the claims made against Khatib in his personal capacity, and therefore
bifurcated discovery is impractical in this situation.
The Court finds the present situation is clearly analogous to that in Howse and warrants a
stay of discovery as to both Defendant. Because the claims against Defendants are so closely
related, allowing discovery to proceed as to the City while the Motion to Dismiss awaits ruling
would prejudice Khatib in precisely the manner that the stay as to Khatib is intended to prevent.
Bifurcated discovery would also be impractical and inefficient, based on the common nucleus of
facts present in the claims against both Defendants. In addition, the risk of prejudice to Monroe
from a temporary stay of discovery is outweighed by the risk of prejudice to Defendants.
IT IS THEREFORE ORDERED THAT the Motion to Stay Discovery (ECF No. 34) is
granted. All discovery is hereby stayed as to both Defendants until such time as the Court rules
on the Motion to Dismiss (ECF No. 23).
IT IS SO ORDERED.
Dated this 21st day of November, 2013 at Kansas City, Kansas.
s/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge

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