Kornberg v. United States of America et al

Filing 20

ORDER Granting 19 Motion to Stay Discovery. Signed by Magistrate Judge Nancy J. Koppe on 10/26/15. (Copies have been distributed pursuant to the NEF - TR)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
MELVIN KORNBERG,

15

)
)
)
)
)
)
)
)
)
)

16

Pending before the Court is Defendants’ motion to stay discovery, filed on October 6, 2015.

17

Docket No. 19. To date, no response has been filed in opposition. See Docket. For the reasons that

18

follow, the Court hereby GRANTS Defendants’ motion. Docket No. 19.

11
Plaintiff(s),
12
vs.
13
UNITED STATES OF AMERICA, et al.,
14
Defendant(s).

Case No. 2:14-cv-02165-JCM-NJK
ORDER
(Docket No. 19)

19

The deadline for responding to the motion has now passed. See Local Rule 7-2(b) (providing

20

14-day response deadline). No response has been filed opposing Defendants’ motion to stay. See

21

Docket. Accordingly, the Court may grant the motion as unopposed. See Local Rule 7-2(d).

22

Further, the Court has reviewed the motion itself in addition to the underlying motion to

23

dismiss, and finds good cause for granting a stay of discovery. Docket Nos. 10, 11, 14, 19. In

24

determining whether a stay is appropriate, the Court considers the goals of Rule 1 to “secure the just,

25

speedy, and inexpensive” determination of all cases. Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597,

26

602 (D. Nev. 2011).1 Generally, requests to stay discovery may be granted when: (1) the pending

27

motion is potentially dispositive; (2) the motion can be decided without additional discovery; and

28
1

Unless otherwise noted, references to “Rules” refer to the Federal Rules of Civil Procedure.

1

(3) the Court has taken a “preliminary peek” at the merits of the potentially dispositive motion and

2

is convinced that the plaintiff will be unable to state a claim for relief. See Kor Media Group, LLC

3

v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013).2 However, where a motion to dismiss presents a

4

“critical preliminary question[,]” courts are more inclined to stay discovery. Kabo Tool Co. v.

5

Porauto Indus. Co., 2013 U.S. Dist. LEXIS 53570, at *2 (D. Nev. Apr. 15, 2013) (quoting AMC

6

Fabrication, Inc. v. KRD Trucking West, Inc., 2012 U.S. Dist. LEXIS 146270, at *2 (D. Nev. Oct.

7

10, 2012)).

8

With that distinction in mind, the Court has taken a “preliminary peek” at the pending

9

motion to dismiss. Plaintiff’s complaint asserts a FTCA3 claim against the VA4, arguing that it

10

provided Plaintiff with negligent medical care. Docket No. 11 at 2-3. Defendants’ motion to

11

dismiss counters that Plaintiff’s complaint is void ab initio because it is a medical malpractice claim

12

unaccompanied by a supporting expert affidavit. Docket No. 19 at 3.

13

In Nevada, claims alleging medical malpractice must be filed with a supporting medical

14

expert affidavit. See Poppe v. United States, 2015 U.S. Dist. LEXIS 128395 *8-9 (D. Nev. Sept.

15

23, 2015) (“Pursuant to NRS 41A.071, a complaint filed without a supporting medical expert

16

affidavit is void ab initio and must be dismissed”); Swails v. United States, 406 Fed. Appx. 124,

17

125-26 (9th Cir. 2010). Plaintiff’s complaint lacks a supporting medical expert affidavit. See

18

Docket No. 1. Plaintiff addresses this omission by contending that the VA is not a medical care

19

provider within NRS 41A.017, and, therefore, Nevada law does not require a medical expert

20

affidavit. Docket No. 11 at 4.

21

The Court finds that this issue presents a critical preliminary question akin to the

22

jurisdictional dispute in Kabo Tool Co. Considering the three Kor Media factors, the Court

23
24
25
26

2

Conducting this preliminary peek puts the undersigned in an awkward position because the
assigned district judge who will decide the motion to dismiss may have a different view of its merits.
See Tradebay, 278 F.R.D. at 603. The undersigned’s “preliminary peek” at the merits of that motion
is not intended to prejudice its outcome. See id.
3

27
28

References to “FCTA” refer to the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671,

et seq.
4

References to the “VA” refer to the United States Department of Veteran Affairs.
-2-

1

concludes that objectives of Rule 1 would be best served by a stay of discovery pending the outcome

2

of Defendants’ motion to dismiss. See Poppe v. United States, 2015 U.S. Dist. LEXIS 109586 (D.

3

Nev. Aug. 18. 2015) (granting stay of discovery pending motion to dismiss FTCA claim against the

4

VA). In the event resolution of the above motion to dismiss does not result in the disposition of this

5

case, the parties shall file a joint discovery plan within seven days of the issuance of the order

6

resolving that motion.

7

IT IS SO ORDERED.

8

DATED: October 26, 2015

9
10

______________________________________
NANCY J. KOPPE
United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-