Bank of America, N.A., v. Treo North and South Homeowners' Association, Inc. et al

Filing 68

ORDER DENYING ECF No. 66 Motion to Stay Discovery. Signed by Magistrate Judge Nancy J. Koppe on 8/30/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BANK OF AMERICA, N.A.,
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Plaintiff(s),
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vs.
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TREO NORTH AND SOUTH HOMEOWNERS’ )
ASSOCIATION, INC., et al.,
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Defendant(s).
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Case No. 2:16-cv-00845-MMD-NJK
ORDER
(Docket No. 66)

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Pending before the Court is Plaintiff’s motion to stay discovery pending resolution of dispositive
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motions. See Docket No. 66; see also Docket No. 63 (motion for partial summary judgment). The
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Court has previously denied similar motions filed in other cases. See JPMorgan Chase Bank v. RHKids,
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LLC, 2017 U.S. Dist. Lexis 123044 (D. Nev. Aug. 4, 2017) (citing Bank of N.Y. Mellon v. Vegas Prop.
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Servs., 2017 U.S. Dist. Lexis 66682 (D. Nev. May 2, 2017)). For the reasons discussed therein and
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below, the Court DENIES the motion to stay discovery.
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The Court has broad discretionary power to control discovery. See, e.g., Little v. City of Seattle,
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863 F.2d 681, 685 (9th Cir. 1988). “The Federal Rules of Civil Procedure do not provide for automatic
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or blanket stays of discovery when a potentially dispositive motion is pending.” Tradebay, LLC v. eBay,
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Inc., 278 F.R.D. 597, 601 (D. Nev. 2011). The party seeking a stay carries the heavy burden of making
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a strong showing why discovery should be denied. See, e.g., Turner Broadcasting Sys., Inc. v. Tracinda
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Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). The case law in this District makes clear that requests to
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stay all discovery may be granted when: (1) the pending motion is potentially dispositive; (2) the

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potentially dispositive motion can be decided without additional discovery; and (3) the Court has taken

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a “preliminary peek” at the merits of the potentially dispositive motion and is convinced that the plaintiff

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will be unable to state a claim for relief. See Kor Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D.

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Nev. 2013).1

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The Court finds that a stay of discovery is not appropriate in this case. Most significantly, the

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Court has taken a preliminary peek at the motion for partial summary judgment and is not convinced that

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it will be granted.2 It bears repeating that the filing of a non-frivolous dispositive motion, standing

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alone, is simply not enough to warrant staying discovery. See, e.g., Tradebay, 278 F.R.D. at 603.

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Instead, the Court must be “convinced” that the dispositive motion will be granted. See, e.g., id. “That

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standard is not easily met.” Kor Media, 294 F.R.D. at 583. “[T]here must be no question in the court’s

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mind that the dispositive motion will prevail, and therefore, discovery is a waste of effort.” Id. (quoting

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Trazska v. Int’l Game Tech., 2011 WL 1233298, *3 (D. Nev. Mar. 29, 2011)) (emphasis in original).

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The Court requires this robust showing that the dispositive motion will succeed because applying a

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lower standard would likely result in unnecessary delay in many cases. Id. (quoting Trazska, 2011 WL

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1233298, at *4).

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Plaintiff’s motion for partial summary judgment is premised on the assertion that Ninth Circuit

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authority finding Nevada’s foreclosure statute facially invalid requires judgment in Plaintiff’s favor

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notwithstanding any notice it may have received. See Docket No. 66 at 2-3; see also Docket No. 1 at

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4-5. While Plaintiff cites authority favorable to it, it fails to acknowledge contrary authority. See

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Bayview Loan Serv., LLC v. SFR Investments Pool 1, LLC, 2017 WL 1100955, at *4-5 (D. Nev. Mar.

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The pending motion is somewhat unusual in that it is the plaintiff seeking a stay of discovery
pending resolution of its dispositive motion. As such, the Court modifies the applicable standards in that
it is taking a preliminary peek to determine whether it is convinced that dispositive relief will be granted to
Plaintiff vis-a-vis its motion for summary judgment.
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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.
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22, 2017) (rejecting arguments similar to those presented by Plaintiff here based on Ninth Circuit

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authority “that receipt of actual notice deprives a claimant of standing to raise a procedural due process

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claim”). As such, the Court is not convinced that Plaintiff will prevail on its motion for partial summary

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judgment, such that conducting discovery will be a waste of effort. See, e.g., Vegas Prop. Servs., 2017

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U.S. Dist. Lexis 66682, at *3 (denying stay for same reason).

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Accordingly, the Court DENIES Plaintiff’s motion to stay discovery.

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IT IS SO ORDERED.

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DATED: August 30, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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