Garity v. APWU-AFl-CIO et al

Filing 124

ORDER Granting 116 Motion to Stay Discovery. Signed by Magistrate Judge Carl W. Hoffman on 12/21/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ROSEMARY GARITY,

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Plaintiff,
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vs.
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APWU-AFL-CIO,
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APWU LOCAL #7156,
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Defendant.
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__________________________________________)

Case No. 2:11-cv-01109-PMP-CWH
ORDER

This matter is before the Court on Defendant’s Motion to Stay Discovery (#116), filed on

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December 3, 2012. The Court also considered Defendant’s Memorandum in Support of Motion to

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Stay (#117) and Proposed Order Staying Discovery (#118), filed on December 3, 2012. In addition,

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the Court considered Plaintiff’s Response (#119), filed on December 10, 2012 and Defendant’s

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Reply (#120), filed on December 13, 2012.

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DISCUSSION

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The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of

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discovery when a potentially dispositive motion is pending. Skellercup Indus. Ltd. V. City of L.A.,

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163 F.R.D. 598 600-01 (C.D. Cal 1995) (finding that a stay of discovery is directly at odds with the

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need for expeditious resolution of litigation. Ordinarily a pending dispositive motion is not “a

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situation that in and of itself would warrant a stay of discovery.” See Turner Broadcasting System,

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Inc. v. Tracinda Corp., 175 F.R.D. 554, 555-56 (D. Nev. 1997) (quoting Twin City Fire Ins. v.

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Employers Insurance of Wausau, 124 F.R.D. 652, 653 (D.Nev. 1989)). Common examples of such

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situations are when jurisdiction, venue, or immunity are preliminary issues. Id. Ultimately, the

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party seeking the stay “carries the heavy burden of making a ‘strong showing’ why discovery should

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be denied.” Id. (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975)).
Courts have broad discretionary power to control discovery including the decision to allow

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or deny discovery. See e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). An overly

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lenient standard for granting motions to stays due to pending dispositive motions would result in

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unnecessary delay in many cases. That discovery may involve inconvenience and expense is not

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sufficient to support a stay of discovery. Turner Broadcasting, 175 F.R.D. at 556.1 Rather, a stay of

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discovery should only be ordered if the court is convinced that a plaintiff will be unable to state a

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claim for relief. See Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 603 (D. Nev. 2011).

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The Court finds that Defendant has made the strong showing necessary to support the

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requested stay. Defendant indicates that it has a significant amount of discovery outstanding

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including files that have not been produced, depositions that need to be taken, and review of

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extensive documents produced by Plaintiff. In contrast, Defendant alleges that Plaintiff has

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completed almost all of her discovery and therefore, will not be prejudiced by a stay of discovery.

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In addition, Defendant’s pending Motions to Dismiss (#91 and 95) are set for hearing on January 3,

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2013. Defendant contends that the remaining discrimination and negligent retention claims should

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be dismissed because they are precluded by the fact that another action involving the duty of fair

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representation action was previously dismissed. See 2:11-cv-01110-KJD-CWH (D. Nev. July 18,

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2012). In addition, Defendant alleges that issue preclusion would apply to this action if the pending

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motion to dismiss is granted in a related case. See 2:11-cv-01805-MMD-CWH (D. Nev.).

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In response, Plaintiff contends that Defendant failed to meet and confer as required by

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Federal Rule of Civil Procedure 26(c) prior to filing the instant motion. Plaintiff also asserts that

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the other cases do not impact this action highlighting the fact that they were not consolidated.

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Further, Plaintiff alleges that she will be prejudiced by a stay of discovery because “all delays so far

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have worked to the defendant’s favor.” Response #119, 3. The Court is not persuaded by Plaintiff’s

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arguments. Defendant certified that it met and conferred with Plaintiff prior to filing the Motion to

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Stay. Additionally, Plaintiff concedes that the majority of her discovery has been completed and she

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was unable to state sufficient prejudice that would result from the Court granting the Motion to

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As noted in Tradebay, “[t]he fact that a non-frivolous motion is pending is simply not enough to warrant a blanket
stay of all discovery.” 278 F.R.D. at 603.

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Stay. The Court also notes that discovery is not necessary to resolve the pending Motions to

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Dismiss. Therefore, the Court finds that it is appropriate to issue a stay of discovery until an order is

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issued on the pending Motions to Dismiss #91 and #95.

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Based on the foregoing and good cause appearing therefore,

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IT IS HEREBY ORDERED that Defendant’s Motion to Stay Discovery (#116) is granted.

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DATED this 21st day of December, 2012.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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