Nelson et al v. TAMKO Building Products, Inc.

Filing 15

MEMORANDUM AND ORDER granting 10 Motion to Stay Response to Plaintiffs' Requests for Admissions. Signed by Magistrate Judge Kenneth G. Gale on 6/10/15. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRENT NELSON AND
GINGER NELSON,
Plaintiffs,
vs.
TAMKO BUILDING PRODUCTS, INC.,

Defendant.

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Case No. 6:15-CV-1090

ORDER GRANTING DEFENDANT’S MOTION TO STAY RESPONSE TO
PLAINTIFFS’ REQUESTS FOR ADMISSIONS
Before the Court is Defendant’s Motion to Stay. (Doc. 10.) Defendant asks
that the request for admissions initiated in state court before removal to federal
court be stayed until a Rule 26(f) conference has taken place.1 (Doc. 11, at 5.) For
the reasons set forth below, the Court GRANTS this motion.
Defendant argues that admissions requests served in state court do not need
to be answered once the case is removed to federal court because no Rule 26(f)
conference has taken place. (Doc. 11, at 5.) Plaintiffs oppose Defendant’s motion
because the request was made in state court where the Federal Rules of Civil
Procedure do not apply. (Doc. 13, at 3.)

1

The Federal Rules of Civil Procedure apply to all civil actions removed from
state court. Fed.R.Civ.P. 81(c)(1). The Rules do not allow either party to seek
discovery, with the exception of initial disclosures, until a Rule 26(f) conference
has taken place. Fed.R.Civ.P. 26(d)(1). The “vast majority” of federal courts have
interpreted Rule 26(d)(1) to supersede state-initiated discovery requests. See
Sterling Sav. Bank v. Fed. Ins. Co., 2012 WL 3143909, at *2 (E.D. Wash. Aug. 1,
2012). Therefore, no party may continue to seek discovery of stat- initiated
requests after removal until a Rule 26(f) conference has occurred. See id.; see also
Steen v. Garrett, 2013 WL 1826451, at *3 (D.S.C. Apr. 30, 2013).
Plaintiffs also argue there is a statutory exception that should allow the stateinitiated discovery requests into federal court regardless of Rule 26(d)(1). (Doc.
13, at 3.) 28 U.S.C. § 1450 states: “all injunctions, orders, and other proceedings
had in such action prior to its removal shall remain in full force and effect until
dissolved or modified by the district court.” Discovery is not, however, an
injunction or an order. The case law supports the finding that discovery is not an
“other proceeding.” Sterling, 2012 WL 3143909, at *2. The Court concludes that
discovery does not fall under any part of § 1450 and finds no reasonable

Defendant’s “Motion to Stay the entire case and compel arbitration, or, alternatively to
dismiss for improper venue” is currently pending before the District Court. (Doc. 7.)

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exceptions to the Rule 26(f) conference requirement prior to discovery.2 The Court
thus holds that the requests for admissions initiated before removal are not valid
and need not be answered at this time.3

IT IS THEREFORE ORDERED that Defendant’s “Motion to Stay
Response to Plaintiffs’ Requests for Admissions” (Doc. 10) is GRANTED.
IT IS SO ORDERED.
Dated at Wichita, Kansas on this 10th day of June, 2015.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

2

There will be no Rule 26(f) conference and no discovery will be permitted until the
District Court rules upon Defendant’s “Motion to Stay the entire case and compel
arbitration, or, alternatively, to dismiss for improper venue” (Doc. 7).
3
If the case continues in District Court and a Rule 26(f) conference is completed, the
requests for admissions will be deemed served after the conference. Pursuant to
Fed.R.Civ.P. 36, Defendant will have 30 days thereafter to respond.
3