Smith v. One Nevada Credit Union

Filing 33

ORDER that 25 Motion to Stay Discovery is DENIED; that 29 Motion to File Supplemental Authority is GRANTED. FURTHER ORDERED that the parties file a joint proposed discovery plan by January 25, 2017. Signed by Magistrate Judge Nancy J. Koppe on 1/18/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOSEPH J. SMITH,
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Plaintiff(s),
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vs.
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ONE NEVADA CREDIT UNION,
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Defendant(s).
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Case No. 2:16-cv-02156-GMN-NJK
ORDER
(Docket Nos. 25, 29)

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Pending before the Court is a motion to stay discovery pending resolution of Defendant’s motion

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to dismiss. See Docket No. 25; see also Docket No. 12 (motion to dismiss). Plaintiff filed a response

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in opposition, and Defendant filed a reply. Docket Nos. 27, 30. Also pending before the Court is

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Plaintiff’s motion for leave to file supplemental authority, and Defendant’s response thereto. Docket

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Nos. 29, 30. The Court finds the motions properly resolved without a hearing. See Local Rule 78-1.

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For the reasons discussed below, the Court DENIES Defendant’s motion to stay discovery, GRANTS

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Plaintiff’s motion to file supplemental authority, and ORDERS the parties to file a joint proposed

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discovery plan by January 25, 2017.

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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).

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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 to dismiss and is not convinced that it will be granted.1

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It bears repeating that the filing of a non-frivolous dispositive motion, standing alone, is simply not

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enough to warrant staying discovery. See, e.g., Tradebay, 278 F.R.D. at 603. Instead, the Court must

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be “convinced” that the dispositive motion will be granted. See, e.g., id. “That standard is not easily

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

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dispositive motion will prevail, and therefore, discovery is a waste of effort.” Id. (quoting Trazska v.

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

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requires this robust showing that the dispositive motion will succeed because applying a lower standard

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would likely result in unnecessary delay in many cases. Id. (quoting Trazska, 2011 WL 1233298, at *4).

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The Court has carefully reviewed the arguments presented in the motion to dismiss. The Court

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is simply not convinced that the motion to dismiss will be granted, such that conducting discovery will

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be a waste of effort. See, e.g., Maldonado v. HSBC Mort. Servs., Inc., Case No. 2:16-cv-784-JAD-VCF,

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2017 WL 131744, at *2 (D. Nev. Jan. 10, 2017) (denying motion to stay discovery in similar

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circumstances).

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

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motion to file supplemental authority, and ORDERS the parties to file a joint proposed discovery plan

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by January 25, 2017.2

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IT IS SO ORDERED.

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DATED: January 18, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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The parties present some positions with respect to the length of the discovery period and the manner
in which they would like to conduct discovery. The Court declines the invitation for the parties to
circumvent the default procedure of presenting such issues in a joint proposed discovery plan.
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