Cohen v. Whitley et al

Filing 41

ORDER denying without prejudice 34 Motion re: Plaintiff's Notice of Required Referral to Early Neutral Evaluation Program without prejudice; ORDER granting 39 Motion to Extend Time to File Discovery Plan/Scheduling Order; IT IS FURTHER ORDERED that the parties shall hold a telephonic Fed. R. Civ. P. 26(f) conference within ten (10) court days of the date of this Order. The parties shall file a single Discovery Plan and Scheduling Order within seven (7) court days af ter their telephonic Rule 26(f) conference. Alternative views of discovery may be presented in the single proposed order. Signed by Magistrate Judge Elayna J. Youchah on 10/14/2020. (Copies have been distributed pursuant to the NEF - HAM) Modified text on 10/14/2020 (SLD).

Case 2:19-cv-01033-APG-EJY Document 41 Filed 10/14/20 Page 1 of 3

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4

STEVEN COHEN,

5
6
7
8
9

Case No. 2:19-cv-01033-APG-EJY

Plaintiff,
ORDER
v.
UNITED STATES OF AMERICA—
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, et al.,
Defendants.

10
11

Before the Court are two filings by Plaintiff. These include: Petitioner’s Notice of Required

12

Referral to Early Neutral Evaluation Program (ECF No. 34), and Petitioner’s First Motion to Extend

13

Time to File Discovery Plan/Scheduling Order (ECF No. 39). The Court has considered these

14

motions, Defendant’s Response to Plaintiff’s Notice of Early Neutral Evaluation (ECF No. 38), as

15

well as the fact that Defendants have filed a Motion to Dismiss (ECF No. 26) and Plaintiff has filed

16

a Motion for Leave to Amend (ECF No. 30),

17

With respect to Plaintiff’s Motion to Extend Time to File Discovery Plan/Scheduling Order,

18

Defendants appear to take the position that discovery cannot commence while a motion to dismiss

19

is pending. ECF No. 39 at 4 (an email exchange between Plaintiff and Defendants in which Plaintiff

20

seeks a Rule 26(f) conference and Defendants decline stating the request is “premature” because

21

discovery “cannot open until motions to dismiss have been decided”). Defendants’ position

22

regarding discovery is an incorrect statement of law. That is, a dispositive motion does not generally

23

warrant a stay of discovery. Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 601 (D. Nev. 2011). “The

24

party seeking a stay . . . has the burden to show good cause by demonstrating harm or prejudice that

25

will result from the discovery.” Rosenstein v. Clark Cnty. Sch. Dist., Case No. 2:13-cv-1443-JCM-

26

VCF, 2014 WL 2835074, at *3 (D. Nev. June 23, 2014), citing Fed. R. Civ. P. 26(c)(1) (internal

27

quotation marks omitted). Under certain circumstances it is an abuse of discretion to deny discovery

28

while a dispositive motion is pending. Tradebay, 278 F.R.D. at 602. For this reason, a party seeking
1

Case 2:19-cv-01033-APG-EJY Document 41 Filed 10/14/20 Page 2 of 3

1

a discovery stay carries the “heavy burden” of making a strong showing why the discovery process

2

should be halted. Turner Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997).

3

When deciding whether to issue a stay, a court must take a “preliminary peek” at the merits

4

of the dispositive motion pending in the case. Buckwalter v. Nevada Bd. of Med. Exam’rs, Case No.

5

2:10-cv-02034-KJD-GWF, 2011 WL 841391, at *1 (D. Nev. Mar. 7, 2011). A court must consider

6

whether the pending motion is potentially dispositive of the entire case, and whether that motion can

7

be decided without additional discovery. Tradebay, 278 F.R.D. at 602. Nevertheless, the court has

8

broad discretion when deciding whether to grant a motion to stay discovery. See e.g., Little v. City

9

of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In this case, there is no motion to stay discovery

10

presently pending before the Court. Hence, Defendants’ position regarding participating in a Rule

11

26(f) conference is not well taken given that no motion to stay discovery is pending. Plaintiff’s

12

request for an extension of time to hold the Rule 26(f) conference is well taken and will be granted

13

under these circumstances.

14

With respect to Plaintiff’s Motion seeking an Early Neutral Evaluation (ECF No. 34), the

15

Court finds referring this matter for an ENE, given the status of this matter and the issues Plaintiff’s

16

claims present, would not be a good use of resources at this time. While the Early Neutral Evaluation

17

program is intended to provide an opportunity for a magistrate judge “to give the parties a candid

18

evaluation of the merits of their claims and defenses” (see LR 16-6(a)), a review of the Motion to

19

Dismiss evidences that requiring the parties to prepare confidential statements and attend an early

20

evaluation of the claims and defenses is not presently appropriate.

21

Accordingly,

22

IT IS HEREBY ORDERED that Plaintiff’s Notice of Required Referral to Early Neutral

23

Evaluation Program (ECF No. 34) is DENIED without prejudice. Plaintiff may renew this motion

24

if Defendants do not seek a stay of discovery within a reasonable time or seek a stay of discovery

25

that is ultimately denied.

26
27

IT IS FURTHER ORDERED that Plaintiff’s First Motion to Extend Time to File Discovery
Plan/Scheduling Order (ECF No. 39) is GRANTED.

28
2

Case 2:19-cv-01033-APG-EJY Document 41 Filed 10/14/20 Page 3 of 3

1

IT IS FURTHER ORDERED that the parties shall hold a telephonic Fed. R. Civ. P. 26(f)

2

conference within ten (10) court days of the date of this Order. The parties shall file a single

3

Discovery Plan and Scheduling Order within seven (7) court days after their telephonic Rule 26(f)

4

conference. Alternative views of discovery may be presented in the single proposed order.

5
6

Dated this 14th day of October, 2020.

7
8
9

ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3