Hernandez v. State of Nevada et al

Filing 51

ORDER granting 45 Motion to Stay Discovery. Signed by Magistrate Judge George Foley, Jr on 2/2/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PERLA A. HERNANDEZ,

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Plaintiff,
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vs.
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BANK OF AMERICA, N.A., et al.,
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Defendants.
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__________________________________________)

Case No. 2:16-cv-02414-KJD-GWF
ORDER

This matter is before the Court on Defendant Bank of America’s (“BANA”) Motion to Stay

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Discovery Pending a Ruling on Defendant’s Motion to Dismiss (ECF. 45), filed on January 13, 2017.

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Plaintiff did not file an opposition to this motion and the time for opposition has now expired.

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BACKGROUND

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Plaintiff filed the instant action on October 17, 2016. Complaint (ECF No. 3). The

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Complaint asserts causes of action for “Trespass” and “Trespass on the Case.” Id. These causes of

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action are based on Plaintiff’s assertions that Defendants wrongfully evicted her and that Defendant

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Bank of America did not have authority to foreclose on the subject property. Defendant BANA filed

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a Motion to Dismiss (ECF No. 23) on November 21, 2016.1 Plaintiff filed a Response (ECF No. 33)

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on December 1, 2016. Defendant BANA’s Motion to Dismiss requests that the Court dismiss

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Plaintiff’s Complaint on the grounds that the Court lacks subject matter jurisdiction to hear Plaintiff’s

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claims, that collateral estoppel bars Plaintiff’s claims, and that Plaintiff’s complaint fails to state a

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claim upon which relief may be granted. Because Defendant’s Motion to Dismiss is potentially

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dispositive of the entire case, Defendant argues that discovery in this matter should be stayed pending

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Defendant Clark County filed a Motion to Dismiss (ECF No. 14) on November 14, 2016. Defendant Stonecrest
Acquisitions, LLC also filed a Motion to Dismiss (ECF No. 16) on November 14, 2016. Defendant State of Nevada filed a
Motion to Dismiss (ECF No. 28) on December 1, 2016.

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the resolution of its motion. This stay would relieve the parties of incurring the potentially

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unnecessary expenses of discovery should the District Court grant the Motion to Dismiss.

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DISCUSSION

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The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of

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discovery when a potentially dispositive motion is pending. See Skellerup Indus. Ltd. V. City of L.A.,

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163 F.R.D. 598, 600-1 (C.D. Cal. 1995). Ordinarily, a dispositive motion does not warrant a stay of

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discovery. See Twin City Fire Insurance v. Employers of Wausau, 124 F.R.D. 652, 653 (D. Nev.

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1989). See also Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev.

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1997). The moving party carries the heavy burden of making a strong showing of why discovery

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should be denied. Kor Media Group, LLC v. Green, 294 F .R.D. 579, 581 (D. Nev. 2013).
Courts have broad discretionary power to control discovery. See Little v. City of Seattle, 863

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F.2d 681, 685 (9th Cir.1988). When deciding whether to grant a stay of discovery, the Court is

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guided by the objectives of Fed. R. Civ. P. 1 that ensures a “just, speedy, and inexpensive

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determination of every action.” Kor Media Group, 294 F.R.D. at 581. It is well known that the

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purpose of Fed. R. Civ. P. 12(b)(6) is to enable defendants to challenge the legal sufficiency of a

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complaint without subjecting themselves to discovery. Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597,

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601 (D. Nev. 2011). To establish good cause for a stay, the moving party must show more than an

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apparently meritorious Rule 12(b)(6) motion. Turner Broadcasting System, 175 F.R.D. at 556.

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The Court may grant a motion to stay discovery when “(1) the pending motion is potentially

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

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

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convinced that the plaintiff will be unable to state a claim for relief.” Kor Media Group, 294 F.R.D.

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at 581. Common examples of when a stay is warranted are cases involving jurisdiction, venue, or

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immunity as preliminary issues. Twin City Fire Ins. Co., 124 F.R.D. at 653. Furthermore, a stay of

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discovery might be appropriate where the complaint was utterly frivolous, or filed merely for

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settlement value. 4 J. Moore, Federal Practice § 26.70[2], at 461.

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Having reviewed Plaintiff’s Complaint and the briefs on the motion to dismiss, the Court
finds that a stay of discovery is appropriate here. Defendant BANA’s primary argument in its motion
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to dismiss is that this Court lacks subject matter jurisdiction over Plaintiff’s claims. Based on the

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Court’s “preliminary peak,” this argument is well taken and appears to be meritorious. Discovery

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would therefore serve no purpose until the District Court has determined whether the Court has

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subject matter jurisdiction over this case. Accordingly,

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IT IS HEREBY ORDERED that Defendant Bank of America’s Motion to Stay Discovery
Pending a Ruling on Defendant’s Motion to Dismiss (ECF. 45) is granted.
DATED this 2nd day of February, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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