Columbian Financial Corporation et al v. Stork et al

Filing 129

ORDER denying 119 Motion to Stay Enforcement of Orders. Defendants shall respond to plaintiff's pending discovery within thirty (30) days of the date of this order. Signed by Magistrate Judge K. Gary Sebelius on 3/2/2018. (wh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
COLUMBIAN FINANCIAL
CORPORATION,
Plaintiff,
v.
MICHELLE W. BOWMAN, in her
official capacity as Bank Commissioner
of Kansas, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 14-2168-SAC

ORDER
This matter comes before the court upon defendants’ Motion to Stay Enforcement of
January 5, 2018 Order Denying Motion to Stay Discovery and January 9, 2018 Scheduling Order
(ECF No. 119). For the following reasons, this motion is denied.
This case arises from the closure of the Columbian Bank and Trust in 2008 by the Office
of the State Bank Commissioner (“OSB”). Additional litigation arising from the closure has taken
place in the Kansas state courts. Here, plaintiff asserts claims against the current officials of the
OSB, alleging denial of due process under 42 U.S.C. § 1983.
On January 5, 2018, the court denied defendants’ motion to stay discovery. Defendants
sought to stay discovery based upon a pending motion for summary judgment. The court found
that defendants’ arguments were insufficient to overcome the strong presumption against staying
discovery. On January 9, 2018, the court entered a Scheduling Order, reflecting the results of a
Scheduling Conference held on December 18, 2017. On January 19, 2018, defendants sought
review of the order of January 5, 2018. Defendants also filed the instant motion on that date.

In their motion, defendants contend that the court should stay the orders of January 5, 2018
and January 9, 2018, pursuant to D.Kan. Rule 72.1.4(d) to allow the district court an opportunity
to rule on their motion for review. Defendants argue that, if a stay is not imposed, the district court
will not be able to consider their timely objections.
D. Kan. Rule 72.1.4(d) permits a party to apply to a magistrate judge for a stay of the
magistrate judge's order pending review of the order by the district court judge.

Neither the

Federal Rules of Civil Procedure nor the Rules of Practice of the United States District Court for
the District of Kansas establish criteria to be considered upon an application for stay pending
review. The courts in this district thus have applied the criteria used in evaluating discretionary
stays in other contexts. “Generally stated, the rule is that the court reviewing the application
assesses the movant's chances for success on appeal and weighs the equities between the parties.”1
Specifically, the court considers: (1) whether the movant is likely to prevail on review; (2) whether
the movant has established that absent a stay the movant will suffer irreparable harm; (3) whether
the issuance of a stay will cause substantial harm to the other parties to the proceeding; and (4) the
public interests implicated by the stay.2
In its motion for review, defendants raise essentially the same arguments that were asserted
in their original motion to stay. They assert that their motion for summary judgment will be
decided in their favor and any discovery would be wasteful and burdensome. Based upon review
of the defendants’ motion, the court remains satisfied that it properly analyzed the issues and
reached an appropriate conclusion, particularly considering the general policy in the District of
Kansas that discovery should be stayed only in “extreme circumstances.” The court does not

1

Mannell v. Kawasaki Motors Corp., No. 89–4258, 1991 WL 34214, at *3 (D.Kan. Feb. 22, 1991).
See id. (citing E.I. DuPont de Nemours & C. v. Phillips Petroleum Co., 835 F.2d 277 (Fed.Cir.1987);
Hesston Corp. v. Sloop, 734 F.Supp. 952, 953 (D.Kan.1990); and Franklin Savs. Assoc. v. Dir. of the Office of Thrift
Supervision, No. 90–4054, 1990 WL 95055 (D. Kan. June 22, 1990)).
2

2

presume to predict how Judge Crow will rule on the motion. But the court concludes, after
considering the relevant circumstances and the applicable law, that defendants are unlikely to
prevail on review.
As to the second factor, the court notes that defendants have not addressed it. They have
made no arguments that they will suffer irreparable harm absent a stay. They have suggested that
any discovery would be wasteful and burdensome, but this hardly rises to the level of irreparable
harm. Plaintiff contends it will suffer substantial harm if the court’s order is stayed because it has
already been deprived of discovery for approximately four years. The court is sympathetic to this
argument given the court’s general policy not to stay discovery. Finally, the court finds that the
public interest weighs in favor of denying defendants’ motion for stay. A stay will only further
delay the public interest in securing the speedy resolution of every case.
In sum, the court denies defendants’ motion to stay. Defendants shall respond to plaintiff’s
pending discovery within thirty (30) days of the date of this order.
IT IS THEREFORE ORDERED that defendants’ Motion to Stay Enforcement of
January 5, 2018 Order Denying Motion to Stay Discovery and January 9, 2018 Scheduling Order
(ECF No. 119) is denied. Defendants shall respond to plaintiff’s pending discovery within thirty
(30) days of the date of this order.
IT IS SO ORDERED.
Dated this 2nd day of March, 2018, at Topeka, Kansas.

s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

3