V5 Technologies v. Switch Ltd. et al

Filing 36

ORDER Denying Defendant's 28 Motion to Stay Discovery. The parties shall file a Joint Proposed Discovery Plan by 12/5/2017. Signed by Magistrate Judge Nancy J. Koppe on 11/28/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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V5 TECHNOLOGIES, LLC,
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Plaintiff(s),
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v.
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SWITCH, LTD.,
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Defendant(s).
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Case No. 2:17-cv-02349-KJD-NJK
ORDER
(Docket No. 28)

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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. 28; see also Docket No. 26 (motion to dismiss). Plaintiff filed a response

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in opposition, and Defendant filed a reply. Docket Nos. 33, 35. The Court finds the motion properly

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resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the Court DENIES

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Defendant’s motion to stay discovery and ORDERS the parties to file a joint proposed discovery plan

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by December 5, 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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Accordingly, the Court DENIES Defendant’s motion to stay discovery and ORDERS the parties

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to file a joint proposed discovery plan by December 5, 2017.

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IT IS SO ORDERED.

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DATED: November 28, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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Conducting the 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. As a result, the undersigned will not provide a lengthy discussion of the
merits of the pending motion to dismiss in this instance. Nonetheless, the undersigned has carefully
reviewed the arguments presented in the motion to dismiss and subsequent briefing.
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