Bredthauer

Filing 176

ORDER denying (167) Motion for Leave; sustaining (171) Objection in case 4:10-cv-03132-JFB-TDT; denying (154) Motion for Leave; sustaining (158) Objection in case 4:10-cv-03139-JFB-TDT; denying (125) Motion for Leave; sustaining (129) Objection in case 8:10-cv-00326-JFB-TDT. The parties shall have ten (10) days from the date the court rules on the pending motions to dismiss, in which to schedule a telephone planning conference with the court. Counsel for the plaintiffs shall contact the chambers of the undersigned magistrate judge within such time period to schedule the telephone planning conference. Member Cases: 4:10-cv-03132-JFB-TDT, 4:10-cv-03139-JFB-TDT, 8:10-cv-00326-JFB-TDTOrdered by Magistrate Judge Thomas D. Thalken. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUSAN E. BREDTHAUER, et al.,
Plaintiffs,
vs.
GILBERT G. LUNDSTROM, et al.,
Defendants,
and
RONALD A. LAIRD, et al.,
Plaintiffs,
vs.
GILBERT G. LUNDSTROM, et al.,
Defendants,
and
SUSAN BARKER, et al.,
Plaintiffs,
vs.
SAMUEL P. BAIRD, et al.,
Defendants.

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4:10CV3132
ORDER

4:10CV3139
ORDER

8:10CV326
ORDER

This matter is before the court upon the plaintiffs’ Motion to Take Depositions (Filing
No. 167, in case 4:10CV3132). The plaintiffs filed an index of evidence (Filing No. 168)
in support of the motion. The defendant Delaware Charter Guarantee & Trust Company
(Delaware Charter), d/b/a Principal Trust Company, filed a brief (Filing No. 169) and an
index of evidence (Filing No. 170) in opposition to the plaintiffs’ motion. The defendants
Samuel P. Baird, Charles W. Hoskins, James E. McClurg, Campbell R. McConnell, James

W. Strand, Sherry Furnas, Roger Ludemann, Gilbert G. Lundstrom, Paula Luther, Larry
Pfeil, Eugene B. Witkowicz, Patricia Young, James A. Laphen, Joyce Person Pocras, and
Ann Lindley Spence (collectively the individual defendants) filed an Objection to Plaintiffs’
Motion for Leave (Filing No. 171). The plaintiffs did not file a reply.
The plaintiffs prefer to proceed with unlimited discovery at this time. However,
under the unique circumstances of the case, the plaintiffs now seek leave to begin
depositions with six of the defendants in the next sixty to ninety days. See Filing No. 167 Motion p. 3. The plaintiffs note this case was initially filed on July 7, 2010, alleging ERISA
violations, and two of the named defendants have passed away. Based in part on this
information, the plaintiffs suggest the passage of time will lead to the loss of necessary
relevant evidence. Id. at 2-3. Despite the existence of four pending motions to dismiss,
the plaintiffs contend their claims are “incredibly strong on the merits” and no justification
exists for further delay. Id. at 3.
The defendants oppose taking any depositions.

Delaware Charter contends

depositions are premature until after the court resolves the fully briefed motion to dismiss
the claims against it. See Filing No. 169 - Response p. 2 (referencing motion to dismiss
at Filing No. 111). Specifically, Delaware Charter argues it would suffer undue prejudice
because of the expense related to attending depositions given the factual and legal
uncertainty surrounding the claims against it. Id. at 2-3. The individual defendants argue
costly depositions are premature because the plaintiffs failed to take full advantage of other
available discovery. See Filing No. 171 - Response p. 2. Additionally, the individual
defendants’ motions to dismiss are pending. Id. (referencing motions to dismiss at Filing
Nos. 115, 117, and 120).

Finally, these defendants argue no material change in

circumstances justify altering the court’s January 20, 2012, Order specifying that despite
the commencement of written discovery, no depositions could be scheduled.

Id.

(referencing Filing No. 138).

ANALYSIS
The plaintiffs’ motion requesting leave to take depositions is essentially a motion to
lift a stay of discovery depositions already imposed by this court. The court has discretion

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to limit the scope and sequence of discovery. See Credit Lyonnais v. SGC Int’l, Inc., 160
F.3d 428, 431 (8th Cir. 1998). Similarly, the power of a district court to stay an action
pending on its docket is “incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936); see
Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (“A district court has
discretionary power to stay proceedings in its own court under Landis.”); Capitol Indem.
Corp. v. Haverfield, 218 F.3d 872, 874 (8th Cir. 2000).

Similarly, it is a “settled

proposition that a court has broad discretion and inherent power to stay discovery until
preliminary questions that may dispose of the case are determined.” Farouki v. Petra
Int’l. Banking, Corp., 683 F. Supp. 2d 23, 26 (D. D.C. 2010) (citations and quotations
omitted). Furthermore, “[d]iscovery is considered inappropriate . . . while a motion that
would be dispositive of the claims . . . is pending.” Geiser v. Simplicity, Inc., No.
5:10-CV-21, 2011 WL 128776, at *4 (D. W. Va. Jan. 14, 2011) (Slip Copy). In determining
whether lifting a stay is appropriate, the court will consider factors such as the economy
of judicial resources and balancing the potential prejudice, hardship, and inequity to the
parties. See Benge v. Eli Lilly & Co., 553 F. Supp. 2d 1049, 1050 (N.D. Ind. 2008); see
also Nken v. Holder, 556 U.S. 418, 434 (2009) (noting the court may consider the public
interest and the parties’ likelihood of success on the case’s merits). The plaintiffs, who are
requesting relief from the current stay on deposition discovery, bear the burden of showing
justification for relief from the prior order. Id.; see also Fed. R. Civ. P. 16(b)(4) (noting
good cause showing required for modification of a scheduling order); Bradford v. DANA
Corp., 249 F.3d 807, 809 (8th Cir. 2001).
The court finds the plaintiffs failed to meet their burden. The plaintiffs fail to show
they will likely suffer prejudice by delaying deposition discovery until the dispositive motions
are resolved. The motions are now fully briefed. Discovery is not necessary for resolution
of those motions. The continued period of the stay will likely be short compared with the
burden related to the potentially unnecessary discovery. The plaintiffs fail to substantiate
their need for depositions at this time, particularly since the court has allowed them to
proceed with written discovery. The court has considered all relevant factors and finds the

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balance weighs against proceeding with depositions of the defendants at this time. Under
these circumstances, the court finds the stay of deposition discovery best serves the
interests of the parties and the court. Upon consideration,

IT IS ORDERED:
1.

The plaintiffs’ Motion to Take Depositions (Filing No. 167, in case

4:10CV3132) is denied.
2.

The individual defendants’ Objection to Plaintiffs’ Motion for Leave (Filing No.

171, in case 4:10CV3132) is sustained.
3.

The parties shall have ten (10) days from the date the court rules on the

pending motions to dismiss, in which to schedule a telephone planning conference with the
court. Counsel for the plaintiffs shall contact the chambers of the undersigned magistrate
judge within such time period to schedule the telephone planning conference.
DATED this 12th day of June, 2012.
BY THE COURT:

s/ Thomas D. Thalken
United States Magistrate Judge

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