Morrison v. Quest Diagnostics Incorporated et al

Filing 34

ORDER that 30 Motion to Lift Stay and Compel Discovery Responses is DENIED. Signed by Magistrate Judge Peggy A. Leen on 4/7/15. (Copies have been distributed pursuant to the NEF - MMM) Modified on 4/9/2015 to reflect correct signing judge (MMM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PATRICIA HARDING MORRISON,
Plaintiff,

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Case No. 2:14-cv-01207-RFB-PAL
ORDER

v.
(Mot Lift Stay and Compel Disc – Dkt. #30)
QUEST DIAGNOSTICS INCORPORATED,
et al.
Defendants.

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Before the court is Plaintiff’s Motion to Lift Stay and Compel Discovery Responses (Dkt.

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#30). The court has considered the Motion, Defendants Quest Diagnostics Incorporated’s and

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John Hiatt’s Response in Opposition (Dkt. #31), Defendants Nevada State Athletic Commission

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et al.’s Joinder (Dkt. #32), and Plaintiff’s Response (Dkt. #33).

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BACKGROUND

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Plaintiff’s motion seeks to lift the stay the court imposed at a scheduling conference held

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December 2, 2014. The court imposed a temporary stay until dispositive motions had been

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decided. Plaintiff points out that the dispositive motions have not yet been decided, and argues

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the stay should be lifted because this case is unnecessarily languishing with no further action

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being taken to the advantage of the Defendants and prejudice to the Plaintiff. The motion also

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argues the merits of the motion to dismiss.

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Plaintiff intends to propound discovery related to claims asserted in her lawsuit that are

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not an issue in Defendants’ motion to dismiss. Specifically, she seeks discovery related to “who

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and with what documentation on February 10, 1996, in Las Vegas, Nevada, diagnosed Tommy

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Morrison with virus/HIV and subsequently cancelled the first of a multi-million dollar

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professional boxing match and career, leading to indefinite medical suspension.”

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Plaintiff also contends that the Defendants’ arguments that discovery in this case would

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time consuming and too costly lack merit because the Defendants have retained lawyers and are

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attempting to take advantage of an unrepresented and less knowledgeable Plaintiff. She points

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out that all lawsuits are time consuming and costly.

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Plaintiff argues that discovery was in process prior to the December 2, 2014, stay as the

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parties had exchanged initial disclosures and requests for production of documents and requests

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for interrogatories. The parties have not responded to discovery requests as a result of the stay.

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The court should therefore find that discovery related to Mr. Morrison’s 1996 diagnosis is

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relevant and appropriate and allow Plaintiff to inspect, copy, test or sample material leading to

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the virus/HIV diagnosis in Las Vegas on February 10, 1996.

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Defendants Quest and Hiatt oppose the motion arguing that Plaintiff seeks $110 million

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in damages she contends Tommy Morrison suffered due to alleged negligence in conducting a

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pre-fight HIV screening in February 1996. The pending motions to dismiss argue Plaintiff lacks

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standing to assert these claims on Mr. Morrison’s behalf, that the statute of limitations has run,

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and that the complaint fails to allege factual allegations supporting any claim for relief against

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the Defendants. Defendants argue that the court has the inherent power to manage its docket and

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stay proceedings when the court deems it appropriate.

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At the hearing on December 12, 2014, the court confirmed that Mr. Morrison died

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intestate and that Plaintiff was neither the administrator nor personal representative of her late

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husband’s estate which is being administered in Tennessee. Under these circumstances, it was

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well within the court’s discretion to stay discovery pending a formal determination on the

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threshold issue of standing. Assuming Nevada law applies, Tommy Morrison’s negligence

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claims must be brought pursuant to Nevada law’s survivor statute which only permits survival

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claims to be brought by a decedent’s administrator or executor if a will exists. As the estate is

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being administered in Tennessee and Plaintiff has not been appointed as either an administrator

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or personal representative of Mr. Morrison’s estate, Plaintiff does not have standing.

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Additionally, Defendants argue that good cause exists for the discovery stay and Plaintiff

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has not explained how she will be prejudiced by a delay while the dispositive motions are
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decided. Finally, Defendants argue that Plaintiff does not contend that the discovery she seeks in

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her motion to lift the stay and compel discovery is necessary to assist the court in resolution of

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the pending motions to dismiss. Defendants agree that the discovery she seeks cannot and will

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not assist the court in determining the outcome of the pending motions to dismiss.

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The Nevada State Athletic Commission and remaining Defendants filed a Joinder (Dkt.
#32) concurring with the arguments asserted by Quest and Hiatt.

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Plaintiff filed a Response (Dkt. #33) which reiterates arguments made in her motion and

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points out the timeline of events since the stay was entered. The response accuses counsel for

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the Defendants of lying about the representations made at the hearing concerning her standing

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and asserts that she has legal standing. This lawsuit was filed within two years of her husband’s

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death which is the date she reasonably discovered the alleged offenses or acts committed by

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Defendants. Plaintiff believes the Defendants wish to silence her in her efforts to correct lies that

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have been and continue to be reported by the media about her late husband. She believes

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Defendants simply do not want to answer the simple question of who and with what

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documentation diagnosed her late husband with HIV on February 10, 1996, which resulted in

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cancelling a multi-million dollar professional boxing match, ended Morrison’s career, and

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caused his indefinite medical suspension. She wants testimony under oath from Defendant Hiatt

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on this subject. She argues there is no valid reason for this matter to languish any longer and

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asserts that the longer the matter is delayed makes it suspicious that there is some potential

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conspiracy going on, perhaps involving the court. She notes that three judges immediately

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recused themselves from this matter after the complaint was filed.

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DISCUSSION

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As an initial matter, when this case was filed it was randomly assigned to a district judge

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and magistrate judge. Judge Navarro recused herself and the matter was randomly reassigned to

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Judge Andrew P. Gordon for further proceedings. Judge Gordon recused himself and the matter

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was randomly reassigned to Judge Miranda M. Du who also recused herself. The case was

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randomly reassigned to Judge Richard F. Boulware on October 15, 2014. The Code of Conduct

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for United States Judges requires judges to screen cases assigned to them to determine whether

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any conflict of interest or other reason requires disqualification.

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Cannon 3C requires a judge to disqualify himself or herself in a proceeding in which the

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judge’s impartiality might reasonably be questioned. Examples are contained in subparagraphs

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(a) through (e). When a judge decides that disqualification is required by the Code of Conduct,

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the judge refers the case to the clerk of court for random reassignment.

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completes the process for random reassignment, the Chief Judge enters a minute order

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reassigning the case to the randomly reassigned judge. This is what occurred here. There are

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many reasons why a judge may disqualify himself or herself. For example, the judge may have

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served as a lawyer in a law firm that now represents a party to this case, the judge may have

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some personal knowledge of disputed evidentiary facts concerning the case, or the judge may

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have served in governmental employment in the past and served as counsel, advisor, or material

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witness concerning a case before the judge. A judge may have a close relative involved in the

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case as counsel or in some other capacity. These are only examples of potential conflicts of

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interest that may require a judge to disqualify himself or herself.

When the clerk

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With respect to Plaintiff’s motion to lift stay, the Federal Rules of Civil Procedure do not

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provide for automatic or blanket stays of discovery when a potentially dispositive motion is

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pending.

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discovery, and its rulings will not be overturned in the absence of a clear abuse of discretion.

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Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Staying discovery when a court is

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convinced that the Plaintiff will be unable to state a claim for relief furthers the goal of efficiency

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for the court and litigants. Id.

However, in the Ninth Circuit, district court has wide discretion in controlling

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Common situations in which a court may determine that staying discovery pending a

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ruling on a dispositive motion occur in dispositive motions raising issues of jurisdiction, venue,

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or immunity. Turner Broadcasting System, Inc. v. Trascinda Corp., 175 FRD 554, 556 (D. Nev.

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1997), citing Twin City Fire Ins. v. Employers Insurance of Wausau, 124 FRD 625, 653 (D. Nev.

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1989).

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In evaluating the propriety of an order staying or limiting discovery while a dispositive

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motion is pending, this court considers the goal of Rule 1 of the Federal Rules of Civil Procedure

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which directs that the rule shall be “construed and administered to secure the just, speedy, and

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inexpensive determination of every action.” Id. Discovery is expensive. In this case, the court

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reviewed the dispositive motions and Plaintiff’s responses in determining whether or not this

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case should be stayed while the district judge decides the pending motions to dismiss. The

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motions to dismiss raise substantial issues about whether the Plaintiff has standing to file this

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case which involves things that happened in 1996. At the scheduling conference held on

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December 2, 2014, Plaintiff confirmed that her husband died without leaving a will and that she

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had not been appointed by any court as an administrator or personal representative of her late

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husband’s estate. The district judge may find that Plaintiff may not pursue these claims on behalf

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of her late husband as a matter of law. Additionally, there are substantial statute of limitations

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issues involved. Finally, Plaintiff told the court at the scheduling hearing that she did not need to

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conduct any discovery in order to respond to the motions to dismiss.

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Under these circumstances, the court found that the objective of Rule 1, would be best

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served by staying discovery until the outcome of the motions to dismiss. Although the court fully

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appreciates Plaintiff wants answers to her questions, she has not established that she will be

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prejudiced by the delay required to determine whether this case should be dismissed as a matter

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of law. For the same reasons,

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IT IS ORDERED that Plaintiff’s Motion to Lift Stay and Compel Discovery Responses
(Dkt. #30) is DENIED.
DATED this 7th day of April, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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