Brennan et al v. Cadwell Sanford Deibert & Garry LLP et al

Filing 43

ORDER granting 31 Motion to Stay Discovery. Signed by Magistrate Judge Cam Ferenbach on 9/22/2020. (Copies have been distributed pursuant to the NEF - DRS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHARLES C BRENNAN, et al.,

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Plaintiffs,

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vs.

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2:20-cv-00799-JAD-VCF

CADWELL SANFORD DEIBERT & GARRY
LLP, et al.,

ORDER
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MOTION TO STAY DISCOVERY [ECF NO. 31]

Defendants.
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Before the Court is defendant Cadwell Sanford Deibert & Garry LLP’s motion to stay discovery.
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(ECF No. 31). The defendant’s motion to stay is granted.
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I.

Background

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Plaintiffs Charles and Mary Brennan filed a complaint against defendants for abuse of process
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because of two related lawsuits the defendants1 filed against them South Dakota (one is a pending
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lawsuit in federal court, in the discovery phase). (ECF No. 1-3 at 16). Defendants Cadwell and Cup
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O’Dirt LLC filed motions to dismiss for lack of personal jurisdiction which are both pending before the
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Court. (ECF Nos. 8 and 9). Defendant Cadwell moves to stay discovery pending resolution of its motion
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dismiss and defendant Cup O’Dirt filed a joinder seeking the same relief. (ECF Nos. 31 and 32).
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Defendant argues in its motion to stay that the pending motion to dismiss will dispose of the
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entire case in this Court because (1) the Brennans abuse of process claim is not ripe because of the
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pending South Dakota lawsuit and (2) the defendants (both South Dakota companies) do not have
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minimum contacts with the forum state. (ECF No. 31 at 4). Plaintiffs argue in their response that the
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Cadwell is the law firm that represents Cup O’ Dirt in the South Dakota proceedings.
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defendants are subject to the jurisdiction of this Court because the defendants served them with the

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South Dakota Federal Court case here in Nevada after they refused to waive service through their South

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Dakota lawyer. (ECF No. 38 at 4). Plaintiff also argues that the defendants did not meet and confer

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regarding filing this motion. (Id.)
Defendant argues in the reply service of a complaint regarding a lawsuit in South Dakota is

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insufficient to evoke the jurisdiction of this Court. (ECF No. 39 at 7). The defendant argues that it did

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have a meet and confer with plaintiffs regarding this motion during its Rule 26 telephone conference

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when the parties informed plaintiffs that it intended to file this motion (Id. at 3) as evidenced by the fact

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that the parties included a paragraph regarding the defendant’s intention to file a motion to stay

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discovery in the stipulated discovery plan (See ECF No. 29 at 4). The defendant asks that to the extent

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that the phone call with counsel was not a formal meet and confer regarding this particular motion, it

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asks that the Court exercise its discretion and decide the motion because plaintiffs knew about its

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intention to do so and it would serve judicial efficiency to decide the motion on the merits. (ECF No. 39

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at 7).

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II.

Analysis
When evaluating a motion to stay discovery while a dispositive motion is pending, the court

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initially considers the goal of Federal Rule of Civil Procedure 1: the Rules “should be construed,

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administered, and employed by the court and the parties to secure the just, speedy, and inexpensive

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determination of every action[.]” The Rules do not provide for automatic or blanket stays of discovery

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when a potentially dispositive motion is pending. Ministerio Roca Solida v. U.S. Dep't of Fish &

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Wildlife, 288 F.R.D. 500, 502 (D. Nev. 2013). Whether to grant a stay is within the discretion of the

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court. Munoz-Santana v. U.S. I.N.S., 742 F.2d 561, 562 (9th Cir. 1984). “[A] party seeking a stay of

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

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Ministerio Roca Solida, 288 F.R.D. at 503.

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Courts in the District of Nevada apply a two-part test when evaluating whether a discovery stay

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should be imposed. See TradeBay, LLC v. Ebay, Inc., 278 F.R.D. 597, 600 (D. Nev. 2011). First, the

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pending motion must be potentially dispositive of the entire case or at least the issue on which discovery

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is sought. Id. Second, the court must determine whether the pending motion to dismiss can be decided

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without additional discovery. Id. When applying this test, the court must take a “preliminary peek” at the

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merits of the pending dispositive motion to assess whether a stay is warranted. Id.

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“[D]iscovery should be stayed while dispositive motions are pending ‘only when there are no

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factual issues in need of further immediate exploration, and the issues before the Court are purely

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questions of law that are potentially dispositive.’” Solida v. United States Dep't of Fish & Wildlife, 288

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F.R.D. 500, 506 (D. Nev. 20130; citing to Hachette Distribution, Inc. v. Hudson Cty. News Co., 136

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F.R.D. 356, 357 (E.D.N.Y. 1991). “[A] situation that in and of itself would warrant a stay of

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discovery…occur[s] when jurisdiction, venue, or immunity are preliminary issues." Twin City Fire Ins.

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Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 654 (D. Nev. 1989). If parties fail to meet and confer

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in good faith, the Court may still, “exercise its discretion to decide the motion to stay discovery on its

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merits.” See Hologram USA, Inc. v. Cirque Du Soleil My Call, LLC, No. 2:14-cv-0916-RFB-NJK, 2014

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U.S. Dist. LEXIS 164604, at 4 n.3 (D. Nev. Nov. 24, 2014), citing to Preston v. Clark County Collection

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Serv., LLC, 2014 U.S. Dist. Lexis 76681, 8, 9 (D. Nev. June 2, 2014).

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The parties met and conferred regarding discovery during their Rule 26 conference and

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defendants told plaintiff that it intended to file this motion during that conference. There is no

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requirement that parties must have a separate meet and confer and the plaintiffs were not caught off

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guard regarding this motion. The Court finds that although the parties did not have a full good-faith meet

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and confer regarding this motion, this scenario is one where the Court will exercise its discretion and

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decide the motion on the merits.

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Without prejudging the outcome of the motion to dismiss, the Court finds there is a significant

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likelihood that the claims against the defendant will be considerably limited in scope if not eliminated

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entirely if the Court dismisses the case for lack of jurisdiction or if the Court limits the plaintiff’s abuse

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of process claim regarding the pending South Dakota action. The Court can decide both pending

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motions without discovery because (1) whether the Court has personal jurisdiction over the defendants

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and (2) whether the plaintiffs may seek an abuse of process claim regarding a case pending in a sister

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court are both matters of law that the Court can decide without discovery. After a “preliminary peek"

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and in light of the goals of Rule 1 to “secure the just, speedy, and inexpensive determination” of all

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cases, the Court finds that the arguments advanced in the motion to dismiss may have merit. Discovery

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will be stayed pending resolution of the defendants’ motions to dismiss.

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Accordingly, and for good cause shown,

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IT IS ORDERED that the defendant’s motion to stay discovery (ECF No. 31), pending resolution

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of the motions to dismiss, is GRANTED.
DATED this 22nd day of September 2020.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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