Valenzuela v. Culinary Training Academy

Filing 46

ORDER Denying as Moot 39 Motion to Stay. Signed by Magistrate Judge Peggy A. Leen on 7/27/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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AURORA VALENZUELA,

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Plaintiff,
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vs.
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CULINARY TRAINING ACADEMY, et al.,
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Defendants. )
__________________________________________)

Case No. 2:10-cv-02012-RLH-PAL
ORDER
(Mot to Stay - Dkt. #39)

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Before the court is Defendants’, Southern Nevada Joint Management Culinary & Bartenders

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Training Fund, Steven Horsford, Irrita Peterson, Monica Ford, and Yvette Thomas’ Motion to Stay

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Discovery Pending Decisions on Motions to Dismiss (Dkt. #39). The court has considered the Motion,

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Plaintiff’s Opposition (Dkt. #40), and Defendants’ Reply (Dkt. #42).

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The moving Defendants seek an order staying discovery pending decisions on Motions to

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Dismiss (Dkt. ##27, 28) filed by Defendants January 21 and 24, 2011. The motions were fully briefed

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and under submission to the district judge when the motion to stay was filed. Counsel for the moving

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defendants asked counsel for Plaintiff to postpone further discovery and offered to stipulate to extend

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the discovery deadline if the motions to dismiss are denied so that all parties have adequate time to

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complete reasonable discovery. However, counsel for Plaintiff rejected this proposal and indicated he

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intended to move forward with discovery. The court approved the parties’ proposed Discovery Plan

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and Scheduling Order which currently establishes a July 5, 2011 discovery cutoff. The parties

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participated in an Early Neutral Evaluation March 2, 2011. After the ENE, the parties disclosed initial

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witness lists, and produced initial documents. Plaintiff served Defendant Culinary Training Academy

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(“CTA”) with written interrogatories, request for admissions and requests for additional discovery

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documents. CTA served responses to these written requests April 27, 2011. Counsel for Plaintiff

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rejected CTA’s proposal that further discovery be postponed until the motions to dismiss were decided.

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Plaintiff opposes the motion to stay discovery, although she does not oppose a possible

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extension of the discovery cutoff and related case management deadlines indicating the deadline

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currently set cannot be realistically met. Plaintiff argues that in the Ninth Circuit, the filing of a

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dispositive motion under Rule 12(b)(6) is not sufficient in and of itself to grant a stay of discovery, and

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that in the Ninth Circuit, the party seeking a stay bears a heavy burden of proving that a potentially

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dispositive motion “is meritorious to the point of being certain to be granted.” Plaintiff asserts she has

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asserted a plausible claim for a Family Medical Leave Act (“FMLA”) violation, and the Defendants

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cannot meet their burden of showing that it is virtually certain the case will be dismissed, without leave

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to amend. Thus, there is no basis to stay discovery, and the motion should be denied.

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Defendants Reply (Dkt. #42) filed May 25, 2011, requests an expedited decision, and that the

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motion be treated as an emergency motion to avoid potentially needless litigation fees and costs

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pending decisions on the motions to dismiss. Defendants argue that granting the motion to stay will

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benefit all parties even if the motions to dismiss are denied, because Plaintiff will likely have to amend

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her complaint again. Defendants have no idea how the complaint will be amended if further

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amendment is permitted, and Defendants have not yet filed an answer. The pending motions to dismiss

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raise a preliminary question of law for the court to decide, and does not require discovery. Defendants

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also argue that more recent federal cases recognize the need to stay discovery more frequently, and that

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Plaintiff will not be harmed if the court grants the motion to stay.

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On June 29, 2011, the district judge entered an order granting in part and denying in part the

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pending Motions to Dismiss (Dkt. ##27, 28) before this court could address the motion to stay.

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Additionally, the court has approved the parties’ stipulation extending the Discovery Plan and

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Scheduling Order deadlines in a Scheduling Order (Dkt. #44) entered June 16, 2011. Accordingly,

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IT IS ORDERED Defendant’s Motion to Stay (Dkt. #39) is DENIED as MOOT.

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Dated this 27th day of July, 2011.

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______________________________________
Peggy A. Leen
United States Magistrate Judge

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