Cummings v. Othmer et al
ORDER granting 40 motion to stay discovery and other pretrial proceedings. Signed by Magistrate Judge James P. O'Hara on 9/7/2021. (amh)
Case 2:20-cv-02371-DDC-JPO Document 43 Filed 09/07/21 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PAMELA LYNN CUMMINGS,
Case No. 20-2371-DDC
AARON OTHMER, et al.,
Defendants Aaron M. Othmer, Beverly M. Weber, and Martin Leigh PC have filed
a motion to stay discovery and other pretrial proceedings (ECF No. 40) pending a ruling
on their motion to dismiss the complaint (ECF No. 37). Plaintiff has not filed a response
to the motion to stay discovery and pretrial proceedings, and the time for doing so under
D. Kan. R. 6.1(d) has run. The motion is granted.
D. Kan. Rule 7.4 provides: “If a responsive brief or memorandum is not filed within
the Rule 6.1(d) time requirements, the court will consider and decide the motion as an
uncontested motion. Ordinarily, the court will grant the motion without further notice.”
Although the court could grant the motion solely on the ground that it is unopposed, the
court will briefly address the merits of the motion.
Case 2:20-cv-02371-DDC-JPO Document 43 Filed 09/07/21 Page 2 of 4
It has long been the general policy in the District of Kansas not to stay discovery
even if a dispositive motion is pending,1 but exceptions to this policy are recognized. A
discovery stay may be appropriate if: (1) the case is likely to be finally concluded via a
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.2 Moreover, “it is well settled that the district court has the power
to stay proceedings pending before it and to control its docket for the purpose of economy
of time and effort for itself, for counsel, and for litigants.”3 The decision whether to stay
proceedings rests in the broad discretion of the court.4 As a practical matter, this calls for
a case-by-case determination.5
The court has reviewed the record, the instant motion, and the pending dispositive
motion. The court concludes that a brief stay of all pretrial proceedingsCincluding
See Wolf v. United States, 157 F.R.D. 494, 495 (D. Kan. 1994).
See id. (citing Kutilek v. Gannon, 132 F.R.D. 296, 297-98 (D. Kan. 1990)); Lofland
v. City of Shawnee, No. 16-2183, 2016 WL 5109941, at *1 (D. Kan. Sept. 20, 2016).
Baca v. Berry, 806 F.3d 1262, 1269–70 (10th Cir. 2015) (internal quotation marks,
modifications, and citation omitted).
Id. at 1270; see also Clinton v. Jones, 520 U.S. 681, 706 (1997) (“The District
Court has broad discretion to stay proceedings as an incident to its power to control its own
Citizens for Objective Public Educ., Inc. v. Kan. State Bd. of Educ., No. 13-4119,
2013 WL 6728323, at *1 (D. Kan. Dec. 19, 2013).
Case 2:20-cv-02371-DDC-JPO Document 43 Filed 09/07/21 Page 3 of 4
discovery and the scheduling of deadlinesCis warranted until after the presiding U.S.
District Judge, Daniel D. Crabtree, reaches a decision on defendants’ dispositive motion.
First, the arguments in the motion to dismiss are procedural and fairly
straightforward. Defendants assert plaintiff’s claims are barred by the Rooker-Feldman
Doctrine, res judicata, and collateral estoppel. Although the undersigned does not presume
to predict how Judge Crabtree will view or rule on the motion to dismiss, this is a case
where rulings on the dispositive motion are likely to finally conclude the case, so the
undersigned takes that into consideration.
Second, the likelihood of the dispositive motion resolving or narrowing the case
makes discovery at this point wasteful and burdensome. Defendants point to plaintiff’s
lengthy history of bringing litigation against these defendants for essentially the same
foreclosure. Defendants use this history to support their argument that they’ve been
burdened by litigating the same claims multiple times, and they’ll be unduly burdened if
they’re required to go through the planning conference, make initial disclosures, and begin
discovery in this matter.
In consideration of the foregoing, and upon good cause shown,
IT IS HEREBY ORDERED:
The motion to stay is granted.
Case 2:20-cv-02371-DDC-JPO Document 43 Filed 09/07/21 Page 4 of 4
All pretrial proceedings in this case, including discovery, are stayed until
further order of the court.
Within 14 days of the ruling on the pending motion to dismiss, the pro se
plaintiff and counsel for any party remaining in the case shall confer and submit a Rule
26(f) planning meeting report to the undersigned’s chambers.
Plaintiff is hereby informed that, within 14 days after she is served with a copy of
this order, she may, pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4(a), file written
objections to this order by filing a motion requesting that the presiding U.S. district judge
review this order. A party must file any objections within the 14-day period if the party
wants to have appellate review of this order.
Dated September 7, 2021, at Kansas City, Kansas.
s/ James P. O=Hara
James P. O'Hara
U.S. Magistrate Judge
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