Garcia v. Service Employees International Union et al

Filing 75

ORDER Denying 67 Motion to Stay Discovery. Signed by Magistrate Judge Nancy J. Koppe on 10/24/17. (Copies have been distributed pursuant to the NEF - MR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 RAYMOND GARCIA, et al., ) ) Plaintiff(s), ) ) v. ) ) SERVICE EMPLOYEES INTERNATIONAL ) UNION, et al., ) ) Defendant(s). ) __________________________________________) Case No. 2:17-cv-01340-APG-NJK ORDER (Docket No. 67) 15 Pending before the Court is Plaintiffs’ motion to stay discovery. Docket No. 67. Defendants 16 filed a response in opposition on October 16, 2017. Docket No. 74. No reply has been filed, and the 17 deadline for doing so expired on October 23, 2017. See Local Rule 7-2(b). The Court finds the motion 18 properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the motion 19 to stay discovery is DENIED. 20 The Court has broad discretionary power to control discovery. See, e.g., Little v. City of Seattle, 21 863 F.2d 681, 685 (9th Cir. 1988). “The Federal Rules of Civil Procedure do not provide for automatic 22 or blanket stays of discovery when a potentially dispositive motion is pending.” Tradebay, LLC v. eBay, 23 Inc., 278 F.R.D. 597, 601 (D. Nev. 2011). The party seeking a stay carries the heavy burden of making 24 a strong showing why discovery should be denied. See, e.g., Turner Broadcasting Sys., Inc. v. Tracinda 25 Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). The case law in this District makes clear that requests to 26 stay all discovery may be granted when: (1) the pending motion is potentially dispositive; (2) the 27 potentially dispositive motion can be decided without additional discovery; and (3) the Court has taken 28 a “preliminary peek” at the merits of the potentially dispositive motion and is convinced that the plaintiff 1 will be unable to state a claim for relief. See Kor Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D. 2 Nev. 2013). 3 Plaintiffs failed to meet these standards.1 With respect to Defendants’ pending motion to 4 dismiss, Plaintiffs contend that the motion “is frivolous [and] has a very low likelihood of success.” 5 Docket No. 67 at 8. As Plaintiffs argue the opposite of the governing standard, the pendency of the 6 motion to dismiss is not a basis on which to stay discovery. Compare Kor Media, 294 F.R.D. at 581 (the 7 movant must convince the Court that the motion to dismiss will be granted). Moreover, the parties 8 appear to be in agreement that an order granting the motion to dismiss would not actually dispose of the 9 claims at issue here, but rather would render Plaintiffs’ claims ripe for adjudication in state court. See 10 Docket No. 67 at 13. Hence, the outcome of that motion to dismiss does not ultimately impact the need 11 for discovery, but rather simply transfers the case to a different forum to proceed further. This fact also 12 dooms the motion to stay discovery. Cf. Kor Media, 294 F.R.D. at 582 (holding that pendency of motion 13 to transfer was not grounds to stay discovery based on this reasoning).2 14 15 1 16 17 18 19 20 21 22 23 24 25 26 27 28 On July 31, 2017, the Court rejected the request to stay discovery that was included with the discovery plan and ordered that such a request must be made by filing a motion or stipulation addressing the pertinent standards. Docket No. 53 at 1. It is not clear why Plaintiffs waited more than two months to file the instant motion on October 2, 2017, Docket No. 67, at which time discovery should have been well underway and the deadline for expert disclosures was imminent, see Docket No. 53 (setting initial expert disclosure deadline of October 6, 2017). The motion to stay discovery indicates that Plaintiffs have undertaken no affirmative discovery of any kind. See Docket No. 67 at 7 (stating that Defendants have served initial disclosures and propounded written discovery, but that Plaintiffs have only served initial disclosures). 2 A declaration attached to the motion to stay discovery notes that there is a pending motion to remand and a pending motion to reconsider regarding remand, which Plaintiffs contend “could substantially affect whether this case will proceed in federal court.” Docket No. 67 at 3. The declaration states without elaboration that remand would lead to “invalidating the discovery order.” Id. Plaintiffs have failed to provide any meaningful explanation as to why discovery conducted while litigation is pending in this Court cannot be used in state court proceedings in the event of remand. As such, they have not carried their burden of showing a stay of discovery is appropriate pending resolution of the remand dispute. Cf. Kor Media, 294 F.R.D. at 582. Moreover, United States District Judge Andrew P. Gordon has already denied a motion for remand, and the uphill battle Plaintiffs face in seeking reconsideration further militates against staying discovery. See, e.g., Kabo Tools Co. v. Porauto Indus. Co., 2013 WL 5947138, at *2 (D. Nev. Oct. 31, 2017) (denying motion to stay discovery pending resolution of motion for reconsideration). 2 1 Plaintiffs also point to the pendency of their motion to amend the complaint as grounds to stay 2 discovery. Docket No. 67 at 13-14. In particular, Plaintiffs argue that such motion means that the 3 current discovery deadlines will need to be extended. See id. at 14. Plaintiffs fail to explain why the 4 Court should stop discovery based on its assertion that a pending motion will lead to the need for further 5 discovery. Quite the contrary, given Plaintiffs’ assertion that they “will need a significant amount of 6 additional time to complete discovery,” id. at 3, the Court is unclear why Plaintiffs have not filed a 7 request to extend discovery deadlines. At any rate, discovery should proceed based on the current claims 8 in the operative complaint and, in the event further amendment is allowed and such amendment requires 9 additional time for discovery, the parties may seek appropriate relief at that time.3 10 For the reasons outlined above, the motion to stay discovery is DENIED. 11 IT IS SO ORDERED. 12 DATED: October 24, 2017 13 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The Court expresses no opinion herein as to any future request to extend discovery deadlines. 3

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