Abdou, M.D. et al v. Davita, Inc. et al

Filing 56

ORDER denying 42 Motion to Stay Discovery. Signed by Magistrate Judge Carl W. Hoffman on 9/18/2017. (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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SHERIF W. ABDOU, M.D. et al.,

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Plaintiff,
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v.
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DAVITA INC., et al.,
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Defendants.
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_______________________________________ )

Case No. 2:16-cv-02597-APG-CWH

ORDER

Presently before the Court is Plaintiff’s motion to stay (ECF No. 42), filed on June 30, 2017.

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Defendant filed a response (ECF No. 44) on July 14, 2017, and Plaintiff filed a reply (ECF No. 45)

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on May 2, 2017.

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Plaintiff moves to stay discovery in this matter pending a decision on its motion to dismiss

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Defendant’s counterclaim (ECF No. 41), arguing that this action is moot and discovery is therefore

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unnecessary. Plaintiff also requests that the Court schedule a settlement conference. Defendant

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opposes the motion, arguing that neither Plaintiff’s claim nor its counterclaim are moot. It also

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believes that the parties would not benefit from a settlement conference.

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It is within the Court’s broad discretion over discovery to determine whether a stay of

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discovery is appropriate. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In determining

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whether to stay discovery pending resolution of a dispositive motion, the party seeking the stay

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“carries the heavy burden of making a ‘strong showing’ why discovery should be denied.” Turner

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Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). In order to determine if a

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stay is appropriate, the court considers whether (1) the pending motion is potentially dispositive of

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the entire case or at least dispositive of the issue on which discovery is sought, and (2) the motion

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can be decided without additional discovery. Ministerio Roca Solida v. U.S. Dep’t of Fish &

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Wildlife, 288 F.R.D. 500, 506 (D. Nev. 2013). Further, “a stay of discovery should only be ordered

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if the court is convinced that a plaintiff will be unable to state a claim for relief.” Tradebay LLC V.

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eBay, Inc., 278 F.R.D. 597, 603 (D. Nev. 2011). Courts considering stays in this district have found

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that this standard is not easily met (Kor Media Grp., LLC v. Green, 294 F.R.D. 579, 583 (D. Nev.

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2013)), and that “[a]bsent extraordinary circumstances, litigation should not be delayed simply

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because a non-frivolous motion has been filed.” Id. (quoting Trzaska v. Int'l Game Tech., 2011 WL

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1233298, at *3 (D. Nev. Mar. 29, 2011)).

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To determine whether a stay of a potentially dispositive motion is appropriate, courts in this

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district take a “preliminary peek” at the motion. See Tradebay, 278 F.R.D. 602-603. This inquiry is

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not meant to prejudge the motion, but rather to determine whether a stay would help the court to

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secure the “just, speedy, and inexpensive determination” of the action as required by Rule 1 of the

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Federal Rules of Civil Procedure. Id.
Here, both parties appear to concede that the pending motion to dismiss can be adjudicated

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without discovery. Therefore, the only remaining issues for the Court are whether Plaintiff’s motion

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to dismiss is dispositive of the entire case, and whether the Court is convinced, after a preliminary

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peek, that the motion will be granted.

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In support of its contention that the motion to dismiss Defendant’s counterclaims would be

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dispositive of this case, Plaintiff argues that its own claim in this case is moot, so that if the pending

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motion to dismiss Defendant’s counterclaim is successful, it will be dispositive of the entire case.

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Plaintiff’s mootness argument is based on this Court’s denial of its motion for preliminary injunction

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on January 17, 2017, (ECF No. 26). According to Plaintiff, this case became moot at that point

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because the noncompete agreements that were the subject of the preliminary injunction are set to

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expire on November 1, 2017, and a resolution of this case will certainly not occur before then.

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Plaintiff’s pending motion to dismiss also depends on this argument.

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However, based on its preliminary peek, the Court is not convinced that the motion to

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dismiss is dispositive of the action, or that the motion, which relies solely on the mootness argument,

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is certain to be successful. Although the noncompete agreements will expire before this case can

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come to trial, it is not clear that both parties no longer have a legally cognizable interest in the

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outcome. Even though Plaintiff would prefer that this case be dismissed at this point, the question

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of the validity of the noncompete clauses has not been answered and remains in dispute. Motion to

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Dismiss, at 3:8 (ECF No. 41). Further, Defendant’s pending motion to amend its counterclaim (ECF

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No. 31) may be granted, and if it is, the expiration of the noncompete agreements may be tolled.

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Finally, Plaintiff does not clearly defeat Defendant’s arguments against mootness. Defendant

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provides authority suggesting that a finding of mootness requires meeting a “heavy” burden (County

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of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)), which includes establishing that both parties

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“lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496

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(1969). While Plaintiff’s arguments to the contrary are not without merit, the Court is unconvinced

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after its preliminary peek that the motion to dismiss will be granted.

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As to Plaintiff’s request for a settlement conference, based on Defendant’s reticence and the

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pending motion to amend the counterclaim, the Court does not believe that a mandatory settlement

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conference is warranted at this time. The parties may make a further request for a settlement

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conference as events warrant.

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IT IS THEREFORE ORDERED that Plaintiff’s motion (ECF No. 42) to stay discovery is
DENIED.
DATED: September 18, 2017

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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