Blandino v. Las Vegas Metro Police Department et al

Filing 67

ORDER - IT IS HEREBY ORDERED that Plaintiff's Motion to Stay Discovery ECFNo. 66 is DENIED. Signed by Magistrate Judge Elayna J. Youchah on 5/10/2024. (Copies have been distributed pursuant to the NEF - GA)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KIM BLANDINO,

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Plaintiff,

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Case No. 2:22-cv-00562-GMN-EJY
ORDER

v.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,
Defendants.

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Pending before the Court is Plaintiff’s Motion to Stay Discovery (ECF No. 66). This is

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Plaintiff’s third attempt to stay discovery since the Court entered its Order granting Defendant’s

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Motion to Dismiss with the exception of Plaintiff’s First Amendment Retaliation claim. ECF No.

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55.

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Generally, a motion to stay discovery pending resolution of other motions may be granted

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when: (1) the pending motion is potentially dispositive; (2) the potentially dispositive motion can be

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decided without additional discovery; and (3) the Court has taken a “preliminary peek” at the merits

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of the potentially dispositive motion to evaluate the likelihood of dismissal. Kor Media Group, LLC

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v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013). The party seeking a discovery stay bears the burden

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of establishing the stay is warranted. Kabo Tools Co. v. Porauto Indus. Co., Ltd., Case No. 2:12-cv-

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01859-LDG-NJK, 2013 WL 5947138, at *1 (D. Nev. Oct. 31, 2013) (citing Holiday Sys., Int’l of

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Nev. v. Vivarelli, Scharwz, and Assocs., 2012 U.S. Dist. Lexis 125542, at *5 (D. Nev. Sept. 5, 2012)).

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Plaintiff has not met his burden.

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The Court took a preliminary peek at Plaintiff’s now pending Motion for Summary

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Judgment. ECF No. 65. The Court finds Plaintiff’s argument regarding Defendant’s affirmative

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defense is misplaced. A defendant may prevail in its defense against a First Amendment Retaliation

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claim by showing there is no question of fact as to whether the defendant would have taken the same

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action in the absence of the speech. Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1292 (11th Cir.

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2000) (internal citation omitted); Balcom v. City of Pittsburg, Case No. 2:19-cv-506, 2023 WL
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4236202, at *1 (W.D. Penn. June 28, 2023) citing, in part, Nicholas v. Penn. State University, 227

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F.3d 133, 145 (3d Cir. 2000) (“an employee may not recover in a dual-motives case if the employer

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shows that it would have taken the same action even absent the protected speech” and “[w]here the

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defendant establishes its affirmative defense under Mount Healthy [City School District Board of

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Education v. Doyle, 429 U.S. 274 (1977)] in a First Amendment Retaliation case, the defendant is

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entitled to judgment even though the protected speech was a substantial or motivating factor in the

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adverse state action”) (additional citations and internal quote marks omitted).

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Based on the foregoing, the Court finds Plaintiff’s Motion for Summary Judgment is not

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likely to succeed and, therefore, Plaintiff does not meet the heavy burden required to prompt a stay

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of discovery.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Stay Discovery (ECF
No. 66) is DENIED.
Dated this 10th day of May, 2024.

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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

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