Olausen v. Murguia et al

Filing 124

MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 7/27/2015, denying Plaintiff's 119 Motion to Strike; denying Plaintiff's 120 Motion to Defer. (Copies have been distributed pursuant to the NEF - KR)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

JOHN S. OLAUSEN,

3:13-cv-00388-MMD-VPC

Plaintiff,
MINUTES OF THE COURT
v.
EUGENE MURGUIA, et al.,
Defendants.

PRESENT:

July 27, 2015

THE HONORABLE VALERIE P. COOKE, U.S. MAGISTRATE JUDGE

DEPUTY CLERK:

LISA MANN

REPORTER: NONE APPEARING

COUNSEL FOR PLAINTIFF(S): NONE APPEARING
COUNSEL FOR DEFENDANT(S): NONE APPEARING

MINUTE ORDER IN CHAMBERS:
Before the court are plaintiff’s motions to strike defendants’ partial motion to dismiss
(#119) and defer consideration of defendants’ partial motion to dismiss until the parties have
engaged in discovery (#120). Defendants oppose the latter motion (#123).
First, plaintiff’s motion to strike (#119) is DENIED. Plaintiff moves to strike on the
basis that defendants Baca, Girabaldi, Lehman, Murgia, Screkengost, and Wagner cannot move
to dismiss count III of plaintiff’s amended complaint prior to being served and thereby becoming
parties to this action. However, these defendants entered a supplemental notice of acceptance of
service on July 22, 2015 (#122), thereby rendering the issue moot.
Second, plaintiff’s motion to defer (#120) is also DENIED. Plaintiff contends that the
court will construe the motion to dismiss as one for summary judgment, thereby putting him at a
grave disadvantage in opposing the motion because discovery has not yet occurred. Plaintiff is
mistaken about the purpose of defendants’ motion. A motion to dismiss under Rule 12(b)(6)
tests only the legal sufficiency of a claim. See Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 601
(D. Nev. 2011). At this early stage, plaintiff’s allegations are accepted as true, see Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009), and the court verifies, assuming the truth of those allegations,

that the allegations would render defendants liable under the required elements of the identified
claim. In other words, and in this case, discovery is not necessary for the court to consider
defendants’ Rule 12 motion because plaintiff’s version of factual events is assumed. The court’s
task is to ensure that those allegations state a viable claim of conspiracy under the facts that
plaintiff alleges.
Moreover, if the court’s review of defendants’ motion reveals the existence of factual
issues that require resolution for the court to make a recommended disposition on the motion, the
court may order limited discovery on those issues. See Ministerio Roca Solida v. U.S. Dep’t of
Fish and Wildlife, 288 F.R.D. 500, 506 n.7 (D. Nev. 2013) (acknowledging that discovery is
sometimes appropriate at the motion to dismiss stage). At bottom, lack of discovery is not an
appropriate reason to defer the court’s consideration of the motion.
IT IS SO ORDERED.
LANCE S. WILSON, CLERK
By:

/s/
Deputy Clerk