McInerney v. State of Nevada et al

Filing 23

ORDER granting Defendant's ECF No. 18 Motion to Stay. The stay of discovery will automatically lift upon the Court's denial of ECF No. 11 Motion to Dismiss in whole or in part. Signed by Magistrate Judge George Foley, Jr. on 8/2/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 13 MICHAEL MCINERNEY, ) ) Plaintiff, ) ) vs. ) ) ) EIGHTH JUDICIAL DISTRICT COURT, et al., ) ) Defendants. ) __________________________________________) Case No. 2:16-cv-00698-MMD-GWF ORDER 14 This matter is before the Court on Defendant’s Motion to Stay (ECF No. 18), filed on July 15 6, 2017. To date, Plaintiff has not filed an opposition to this motion and the time for response has 16 expired. 17 This matter arises from allegations of violations of the Fair Credit Reporting Act. See ECF 18 Nos. 5, 7. Plaintiff alleges that Defendant HireRight obtained inaccurate criminal conviction 19 records from the Eighth Judicial District Court and reported such information to Defendant Swift 20 Transportation Co. Defendant HireRight filed its Motion to Dismiss (ECF No. 11) on May 2, 21 2017. Defendant’s Motion to Dismiss seeks dismissal of Plaintiff’s complaint on the grounds that 22 Plaintiff’s Complaint fails as a matter of law under the Fair Credit Reporting Act because 23 Defendant reported information as it was being reported by the state court and because it did not 24 have notice of any inaccuracies. See ECF No. 11. 25 The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of 26 discovery when a potentially dispositive motion is pending. See Skellerup Indus. Ltd. V. City of 27 L.A., 163 F.R.D. 598, 600-1 (C.D. Cal. 1995). Ordinarily, a dispositive motion does not warrant a 28 1 stay of discovery. See Twin City Fire Insurance v. Employers of Wausau, 124 F.R.D. 652, 653 (D. 2 Nev. 1989). See also Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 3 (D. Nev. 1997). The moving party carries the heavy burden of making a strong showing of why 4 discovery should be denied. Kor Media Group, LLC v. Green, 294 F .R.D. 579, 581 (D. Nev. 5 2013). Courts have broad discretionary power to control discovery. See Little v. City of Seattle, 6 7 863 F.2d 681, 685 (9th Cir.1988). When deciding whether to grant a stay of discovery, the Court is 8 guided by the objectives of Fed. R. Civ. Pro. 1 that ensures a “just, speedy, and inexpensive 9 determination of every action.” Kor Media Group, 294 F.R.D. at 581. The Court may grant a 10 motion to stay discovery when “(1) the pending motion is potentially dispositive; (2) the potentially 11 dispositive motion can be decided without additional discovery; and (3) the Court has taken a 12 “preliminary peek” at the merits of the potentially dispositive motion and is convinced that the 13 plaintiff will be unable to state a claim for relief.” Kor Media Group, 294 F.R.D. at 581. 14 After conducting its “preliminary peek” of Defendant’s Motion to Dismiss, the Court finds 15 that a stay of discovery is warranted. First, the pending motion to dismiss, if granted, may resolve 16 the primary issues raised in Plaintiff’s Complaint. Second, the Court finds that Defendants’ Motion 17 to Dismiss can be decided without additional discovery. Finally, the Court is convinced that a stay 18 of discovery is warranted based upon the merits of Defendant’s Motion to Dismiss. 19 In addition, Local Rule 7-2(d) provides that “The failure of an opposing party to file points 20 and authorities in response to any motion shall constitute a consent to the granting of the motion.” 21 Plaintiff did not file points and authorities in response to Defendant’s instant motion to stay. 22 Therefore, Plaintiff is considered to have consented to the granting of Defendant’s motion under 23 LR 7-2(d). Accordingly, 24 IT IS HEREBY ORDERED that Defendant’s Motion to Stay (ECF No. 18) is granted. 25 ... 26 ... 27 ... 28 ... 2 1 IT IS FURTHER ORDERED that the stay of discovery will automatically lift upon the 2 Court’s denial of Defendant’s Motion to Dismiss (ECF No. 11) in whole or in part. The parties 3 shall have fourteen (14) days from the entry of an order denying Defendant’s Motion to Dismiss to 4 file a proposed discovery plan and scheduling order. 5 DATED this 2nd day of August, 2017. 6 7 8 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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