Riscoe et al v. United States of America Food and Drug Administration

Filing 30

ORDER granting 28 Defendant's Motion to Stay Discovery. All pending Rule 26 obligations of the parties, pretrial proceedings, and discovery are hereby stayed until the District Judge rules on the pending 24 Motion to Dismiss. Signed by Magistrate Judge Teresa J. James on 2/24/2017. (Copy of Order mailed to pro se plaintiffs by regular mail.) (byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GERALD M. RISCOE,
et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA FOOD
AND DRUG ADMINISTRATION,
Defendant.

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Case No. 16-cv-2653-CM-TJJ

ORDER GRANTING MOTION TO STAY DISCOVERY
Defendant has filed a Motion to Stay Discovery (ECF No. 28). It requests that the Court
enter an order staying all discovery, including the parties’ obligations to participate in a planning
meeting, prepare a planning meeting report, and exchange initial disclosures, until the Court
rules on Defendant’s Motion to Dismiss (ECF No. 24), filed on January 23, 2017. In support of
its motion, Defendant claims that it has moved to dismiss on grounds the Court lacks subject
matter jurisdiction over Plaintiffs’ claims, and that even if jurisdiction existed, Plaintiffs’ claims
are barred by a two-year statute of limitations. Plaintiffs, proceeding pro se, have not filed a
response in opposition to the Motion to Stay Discovery within the fourteen-day time period
provided by D. Kan. Rule 6.1(d)(1).
Although the general policy of this district is to proceed with discovery despite pending
dispositive motions, there are recognized exceptions to this general rule.1 Most notable is the
well-established exception when the party requesting stay has asserted absolute or qualified

1

Tennant v. Miller, No. 13-2143-EFM, 2013 WL 4848836, at *1 (D. Kan. Sept. 11, 2013).

immunity in its dispositive motion.2 Other instances where it is appropriate to stay discovery
pending a ruling on a dispositive motion are when:
(1) the case is likely to be finally concluded via the dispositive motion; (2) the
facts sought through discovery would not affect the resolution of the dispositive
motion; or (3) discovery on all issues posed by the complaint would be wasteful
and burdensome.3
In this case, Defendant has shown that a stay of pretrial proceedings and discovery is
appropriate until after the District Judge rules on the pending motion to dismiss. First, the Court
finds there is sufficient likelihood the case will be concluded as a result of a ruling on the
motion to dismiss to justify staying the case during the interim. Defendant’s motion to dismiss
raises the potentially case-dispositive issues of lack of subject matter jurisdiction and statute of
limitations. Second, there is no suggestion that discovery is needed to rebut the facts asserted as
the bases for the pending motion to dismiss. Plaintiffs make no such argument; they have not
responded to the motion for stay. Finally, allowing discovery to proceed on all issues posed by
Plaintiffs’ 62-page complaint and voluminous exhibits would likely be wasteful and burdensome.
Defendant has thus persuaded the Court that a temporary stay of discovery and pretrial
proceedings is appropriate while the motion to dismiss is pending. Accordingly,
IT IS THEREFORE ORDERED THAT Defendant’s Motion to Stay Discovery (ECF
No. 28) is GRANTED. All pending Rule 26 obligations of the parties, pretrial proceedings, and
discovery are hereby stayed until the District Judge rules on the pending Motion to Dismiss
(ECF No. 24).
IT IS FURTHER ORDERED that a copy of this Order shall be mailed to Plaintiffs.

2

3

Id.

Fattaey v. Kansas State Univ., No. 15-9314-JAR-KGG, 2016 WL 3743104, at *1–2 (D. Kan.
July 13, 2016).

IT IS SO ORDERED.
Dated this 24th day of February, 2017, at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge