On Demand Direct Response, LLC et al v. McCart-Pollak

Filing 257

ORDER granting ECF No. #239 Harrington's Motion to Stay Discovery. To the extent Harrington' s motion to dismiss is not granted in full, the parties shall file a joint statement regarding whether and how discovery should proceed with respect to Harrington. That joint statement shall be filed within 14 days of the issuance of the order resolving the motion to dismiss. IT IS SO ORDERED. Signed by Magistrate Judge Nancy J. Koppe on 03/08/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ON DEMAND DIRECT RESPONSE, LLC, et al., )
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Plaintiff(s),
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vs.
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SHANA LEE MCCART-POLLAK,
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Defendant(s).
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Case No. 2:15-cv-01576-MMD-NJK
ORDER
(Docket No. 239)

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Pending before the Court is Third-Party Defendant Kevin Harrington’s motion to stay discovery

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pending resolution of his motion to dismiss. See Docket No. 239; see also Docket No. 233 (motion to

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dismiss). Third-Party Plaintiff Shana Lee McCart-Pollak filed a response in opposition, and Harrington

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filed a reply. Docket Nos. 252, 255. The Court finds the motion properly resolved without a hearing.

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See Local Rule 78-1. For the reasons discussed more fully below, the motion to stay discovery with

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respect to Harrington is hereby GRANTED.1

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Plaintiffs and Counter-Defendants On Demand Direct Response, LLC and On Demand Direct
Response III, LLC (collectively “On Demand”) filed a joinder to the motion to stay discovery. Docket No.
240. Unlike Harrington, On Demand does not have a pending dispositive motion and, instead, filed an
answer to McCart-Pollak’s counterclaims more than a year ago. Docket No. 76. Therefore, the Court denied
without prejudice On Demand’s joinder to the motion to stay discovery. Docket No. 243 (citing White v.
Am. Tobacco, 125 F.R.D. 508, 509 (D. Nev. 1989)). No further joinder has been filed, so the pending
dispute relates only to whether discovery should be stayed with respect to Harrington.
Discovery with respect to On Demand shall proceed at this time. The Court hereby ORDERS On
Demand and McCart-Pollak to file a joint proposed discovery plan by March 22, 2017.

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The case law in this District makes clear that requests to stay all discovery may be granted when:

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(1) the pending motion is potentially dispositive; (2) the potentially dispositive motion can be decided

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without additional discovery; and (3) the Court has taken a “preliminary peek” at the merits of the

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potentially dispositive motion and is convinced that the plaintiff will be unable to state a claim for relief.

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See Kor Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013).2 The Court finds that each

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of these requirements has been met here with respect to Harrington’s motion to dismiss. Therefore, the

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Court concludes that discovery with respect to Harrington should be stayed pending resolution of his

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motion to dismiss.

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For the reasons outlined above, Harrington’s motion to stay discovery is GRANTED. To the

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extent Harrington’s motion to dismiss is not granted in full, the parties shall file a joint statement

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regarding whether and how discovery should proceed with respect to Harrington. That joint statement

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shall be filed within 14 days of the issuance of the order resolving the motion to dismiss.

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IT IS SO ORDERED.

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DATED: March 8, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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Conducting the 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,
LLC v. eBay, Inc., 278 F.R.D. 597, 603 (D. Nev. 2011). The undersigned’s “preliminary peek” at the merits
of that motion is not intended to prejudice its outcome. See id.
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