AMC Fabrication Inc. v. KRD Trucking West, Inc. et al
Filing
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ORDER Granting 37 Defendant's Motion to Stay Discovery and Disclosure Obligations. Signed by Magistrate Judge Carl W. Hoffman on 10/10/2012. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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AMC FABRICATION, INC.,
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Plaintiff,
vs.
KRD TRUCKING WEST, INC., et al.,
Defendants.
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2:12-cv-00146-LDG-CWH
ORDER
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This matter is before the Court on Defendant Kenneth S. Drenth’s Motion to Stay
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Discovery and Disclosure Obligations (#37), filed May 4, 2012; Plaintiff’s Response (#40), filed
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May 10, 2012; and Defendant’s Reply (#41), filed May 21, 2012.
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BACKGROUND
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The parties filed a proposed discovery plan and scheduling order on April 25, 2012. In a
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footnote, the parties set forth a dispute that arose during the Rule 26(f) conference regarding the
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discovery obligations, if any, of Defendant Kenneth Drenth (“Drenth”). Drenth, through his
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counsel, took the position that, until the Court determined whether it had personal jurisdiction
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over Drenth, he should not be required to participate in party-related discovery or make initial
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disclosures. Plaintiff disagreed. See Docket (#31) at n. 2. On May 2, 2012, the Court held a
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hearing on the proposed discovery plan. After hearing arguments from counsel, the Court
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indicated that it would enter a standard discovery order. The Court also requested that the parties
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brief the question of whether discovery should be stayed as against Drenth pending resolution of
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his motion to dismiss asserting that the Court does not have personal jurisdiction over him.
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The parties agree on the general governing law as it relates to requests to stay discovery
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pending resolution of Rule 12 motion to dismiss, but disagree on its application. Drenth argues
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(1) that a stay should be granted “because requiring [him] to participate in discovery would
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frustrate [his] jurisdictional defense” and (2) that the stay would cause no prejudice as the
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remaining parties are in possession of any relevant documents regarding the asserted claims.
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See Def.’s Mot. (#37) at 2:20-27. Plaintiff argues (1) that staying discovery based on a
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“jurisdictionally-based dismissal motion” is not automatic; (2) that, even if granted, the stay
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would not obviate Rule 26(a)’s initial disclosure requirements; (3) that a stay would simply make
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discovery tactically inconvenient by forcing Plaintiff to seek discovery through nonparty means;
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and (4) that, even if the stay is granted, Plaintiff should be able to conduct jurisdictional
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discovery.
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DISCUSSION
The parties agree regarding the standards governing requests to stay discovery pending
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resolution of a dispositive motion. Courts have broad discretionary power to control discovery.
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See e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In Tradebay, LLC v. eBay,
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Inc., 278 F.R.D. 597 (D. Nev. 2011), the court undertook a detailed and thorough review of the
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state of the law as pertains to staying discovery when a dispositive motion is pending. The court
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determined that, in light of the directive in Rule 1 to construe the Federal Rules of Civil
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Procedure in a manner to “secure the just, speedy, and inexpensive determination of every
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action,” the preferred approach remains as was previously set forth in Twin City Fire Insurance
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v. Employers of Wausau, 124 F.R.D. 652 (D. Nev. 1989) and Turner Broadcasting System, Inc.
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v. Tracinda Corp., 175 F.R.D. 554 (D. Nev. 1997). Generally, a pending dispositive motion is
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not “a situation that in and of itself would warrant a stay of discovery.” See Turner Broadcasting,
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175 F.R.D. at 554, 555-6 (quoting Twin City, 124 F.R.D. at 653). However, preliminary issues
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such as jurisdiction, venue, or immunity are common situations that may justify a stay. See Twin
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City, 124 F.R.D. at 653.
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The party seeking a stay of discovery “carries the heavy burden of making a strong
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showing why discovery should be denied.” Tradebay, 278 F.R.D. at 601 (citing Turner
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Broadcasting, 175 F.R.D. at 556. An overly lenient standard for granting requests to stay would
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result in unnecessary delay in many cases. Courts generally insist on a particular and specific
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demonstration of fact as opposed to merely conclusory statements that a stay is warranted. Twin
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City, 124 F.R.D. at 653. Evaluation of a request for a stay often requires a magistrate to take a
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“preliminary peek” at a pending dispositive motion. This “preliminary peek” is not intended to
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prejudge the outcome, but to evaluate the propriety of a stay of discovery “with the goal of
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accomplishing the objectives of Rule 1.” Tradebay, 278 F.R.D. at 601 (citation omitted). That
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discovery may involve inconvenience and expense is not sufficient, standing alone, to support a
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stay of discovery. Turner Broadcasting, 175 F.R.D. at 556.
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Whether the Court has personal jurisdiction over Defendant Drenth is a critical
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preliminary question. However, it is not a question that mandates a stay of discovery. The Court
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retains its discretion to determine whether discovery should go forward. See Holiday Systems,
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Intern. of Nevada v. Vivarelli, Schwarz, and Associates, 2012 WL 3860824 (D. Nev) (finding
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that a magistrate judge does not abuse his discretion when he denies a stay based solely on a
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motion challenging personal jurisdiction). Nevertheless, it is the undersigned’s view that a
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pending motion challenging jurisdiction strongly favors a stay, or at minimum, limitations on
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discovery until the question of jurisdiction is resolved. See Liberty Media Holdings, LLC v.
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Letyagin, 2012 WL 3135671 *5 (D. Nev.) (“A defendant should not be required to engage in
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expensive and burdensome discovery in a court that has no jurisdiction over him.”) (citation
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omitted).
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“When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears
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the burden of demonstrating that the court has jurisdiction over the defendant.” Pebble Beach
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Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). To meet this burden, a plaintiff must
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demonstrate that personal jurisdiction over a defendant is (1) permitted under the applicable
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state’s long-arm statute and (2) that the exercise of jurisdiction does not violate federal due
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process. Id. The Court must analyze whether personal jurisdiction exists over each defendant
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separately. Harris Rutsky & Co. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1130 (9th Cir.
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2003). Generally, when determining personal jurisdiction the court accepts as true any
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uncontroverted allegations in the complaint and resolves conflicts between the facts contained in
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the parties’ evidence in the plaintiff’s favor. Glencore Grain Rotterdam B.V. v. Shivnath Rai
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Harnarain Co., 284 F.3d 1114, 1119 (9th Cir. 2002). However, for personal jurisdiction
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purposes, a court “may not assume the truth of allegations in a pleading which are contradicted
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by affidavit.” Alexander v. Circus Circus Enters., Inc., 972 F.2d 261, 262 (9th Cir. 1992)
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(quotation omitted).
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Subject matter jurisdiction in this matter is predicated on a federal question and, as such,
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“the exercise of personal jurisdiction over a non-resident defendant must be authorized by a rule
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or statute and consonant with the constitutional principles of due process.” Glencore Grain, 284
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F.3d at 1123. Because there is no applicable federal statute governing personal jurisdiction, the
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starting point is Nevada’ long-arm statute, which provides that a court may exercise personal
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jurisdiction over a defendant to the full extend permitted by due process. Id.; see also NRS
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14.065 (“A court of this state may exercise jurisdiction over a party to a civil action on any basis
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not inconsistent with the . . . Constitution of the United States.”). Federal law is controlling on
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the issue of due process under the United States Constitution. E.g., Data Disc, Inc. v. Sys. Tech.
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Assoc. Inc., 557 F.2d 1280, 1286 n.3 (9th Cir. 1977). Thus, analysis of personal jurisdiction
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under Nevada’s long-arm statute and the Constitution collapses and the Court considers only
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whether the exercise of jurisdiction over Drenth comports with due process.
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To satisfy federal due process standards, a nonresident defendant must have “minimum
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contacts” with the forum state such that the assertion of jurisdiction does not offend traditional
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notions of fair play and substantial justice. Pebble Beach Co., 453 F.3d at 1155 (citation
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omitted). A federal court may exercise either specific or general jurisdiction over a defendant.
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Helicopteros Nacionales de Columbia S.A. v. Hall, 466 U.S. 407, 414-15 (1984). To establish
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general jurisdiction a plaintiff must demonstrate that the defendant has sufficient contacts to
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“constitute the kind of continuous and systematic general business contacts that approximate
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physical presence.” Glencore Grain, 284 F.3d at 1124 (citations and quotations omitted). A
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nonresident defendant’s contacts with the forum state may permit the exercise of specific
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jurisdiction if: (1) the defendant has performed some act or transaction within the forum or
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purposefully availed himself of the privileges of conducting activities within the forum, (2) the
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plaintiff’s claim arises out of or results from the defendant’s forum-related activities, and (3) the
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exercise of jurisdiction is reasonable. Pebble Beach Co., 453 F.3d at 1155-56.
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The parties appear to agree that only specific jurisdiction is available here. The primary
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argument advanced by Defendant Drenth appears to be that exercising personal jurisdiction over
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him would be inappropriate because his contacts with Nevada have been solely “in his
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representative capacity for the Defendant Corporations.” See Def.’s Motion (#29) at 6:18-26.
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This defense, often referred to as the “fiduciary shield doctrine,” says that “a person’s mere
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association with a corporation that causes injury in the forum state is not sufficient in itself to
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permit that forum to assert jurisdiction over the person.” Davis v. Metro Prods., Inc., 885 F.2d
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515, 520 (9th Cir. 1989). Application of the doctrine is limited. Klein v. Freedom Strategic
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Partners, LLC, 595 F.Supp.2d 1152, 1158 (D. Nev. 2009). As noted in Klein, “although the
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Court cannot acquire personal jurisdiction over employees based on their employers’ forum
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activities, their status as employees does not somehow insulate them from jurisdiction.” Id. at
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1159 (citations and quotations omitted).
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This motion to stay (#37) creates a difficult situation. In the undersigned’s view the
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record is not clear and, based on the standards set forth above, the undersigned is not convinced
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that exercising personal jurisdiction over Defendant Drenth in his individual capacity is
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appropriate. Normally, “discovery should . . . be granted where pertinent facts bearing on the
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question of jurisdiction are controverted or where a more satisfactory showing of the facts is
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necessary.” Laub v. U.S. Dept. of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (citation
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omitted) (emphasis added); see also Klein, 595 F.Supp.2d at 1160 (because jurisdictional
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discovery would parallel ongoing discovery on the merits of the case, “granting jurisdictional
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discovery separate from general discovery would be inefficient”). Nevertheless, how the
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undersigned sees the jurisdictional picture may be very different from how the assigned district
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judge will see the jurisdictional picture. And, ultimately, it is the assigned district judge who will
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make the ultimate determination on whether there is personal jurisdiction. Given this, the
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undersigned finds it more prudent to grant the requested stay and defer the question of whether
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jurisdictional discovery is necessary to the assigned district judge in his determination of the
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merits of Drenth’s motion to dismiss (#29). As a result, traditional party discovery should not go
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forward as against Drenth in his individual capacity (i.e., Rule 26(a) disclosures, Rule 33
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interrogatories, Rule 34 requests, or Rule 36 requests for admission). The Court agrees with
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Drenth that Plaintiff may seek discovery, including jurisdictional discovery, through the use of
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nonparty discovery methods. See Def.’s Mot. (#37) at n. 4.
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Based on the foregoing and good cause appearing therefore,
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IT IS HEREBY ORDERED that Defendant Kenneth S. Drenth’s Motion to Stay
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Discovery and Disclosure Obligations (#37) is granted.
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DATED this 10th day of October, 2012.
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C.W. Hoffman, Jr.
United States Magistrate Judge
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