Pinchuk v. CIT Bank et al

Filing 32

ORDER that 25 Defendants' Motion to Stay Discovery is DENIED. Signed by Magistrate Judge Carl W. Hoffman on 5/24/17. (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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STEVEN PINCHUK,

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Plaintiff,
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v.
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CIT BANK, et al.,
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Defendants.
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_______________________________________ )

Case No. 2:16-cv-02986-RFB-CWH

ORDER

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Presently before the Court is Defendant CIT Bank’s motion to stay discovery (ECF No. 25),

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filed on April 11, 2017. Plaintiff Steven Pinchuk filed a response (ECF No. 27) on April 25, 2017,

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and Defendant filed a reply (ECF No. 29) on May 2, 2017.

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Defendant moves to stay discovery pending a decision on its motion to dismiss (ECF No. 13).

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In support of a stay of discovery, Defendant argues that its motion to dismiss, if granted, would

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dispose of all claims, that the motion is likely to be granted, and that no discovery is necessary for

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the Court to adjudicate the motion. Plaintiff opposes a stay, arguing that discovery is necessary for

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the Court to properly rule on the motion to dismiss, and that the motion to dismiss is not certain to be

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granted.

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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. See Id.

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Here, Defendants argue that their motion to dismiss is potentially dispositive, while Plaintiff

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argues that the Court should not consider the motion to be dispositive because he would likely be

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given leave to amend his complaint were the Court to grant the motion to dismiss. However, as the

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motion to dismiss does appear to move for dismissal of all current claims, the Court will treat the

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motion to dismiss as a dispositive motion.

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The parties also disagree as to whether the motion may be adjudicated without further

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discovery, but the Court finds no binding authority for Plaintiff’s argument that discovery is

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necessary to flesh out its Fair Credit Reporting Act (FCRA) before a decision may be made on the

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motion to dismiss. The Court finds that no discovery is necessary to make a decision on the motion

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to dismiss, and will therefore move on to its preliminary peek.

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Defendants argue that Plaintiff’s FCRA claim must be dismissed because it contains no

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specific facts and fails to allege any injury. After its preliminary peek, the Court is not convinced.

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While the complaint does not specify any dates, the complaint appears to be sufficiently specific as

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to the parties and their alleged actions to fairly inform Defendants of Plaintiff’s claim against it, and

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to give it an opportunity to defend itself effectively. Further, Plaintiff’s allegation that his credit

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score was affected may constitute an adequate harm to survive the motion to dismiss. While

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Defendants arguments to the contrary are not without merit, it does not appear at this stage that

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Defendant’s position is so ironclad that it will certainly prevail. The preliminary peek has not

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convinced the Court that the motion to dismiss is certain to be granted, therefore a stay is not

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warranted at this time.

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IT IS THEREFORE ORDERED that Defendants’ motion (ECF No. 25) to stay discovery is
DENIED.

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DATED: May 24, 2017.

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

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