Tompkins et al v. Lifeway Christian Resources of the Southern Baptist Convention Inc., et al.

Filing 45

ORDER by Magistrate Judge Kevin R. Sweazea granting 31 Motion to Stay Discovery (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

L. KIRK TOMPKINS and SUSIE TOMPKINS,
Plaintiffs,
v.
No. 1: 17-cv-00460-MCA-KRS
LIFEWAY CHRISTIAN RESOURCES OF THE
SOUTHERN BAPTIST CONVENTION
(“LIFEWAY”);THOM RAINER, PRESIDENT,
“LIFEWAY”; JERRY L. RHYNE, C.F.O.
“LIFEWAY”; LARRY D. CANNON, SEC
“LIFEWAY”; GLORIETA 2.0 INC.;
GLORIETA 2.0 INC.; DAVID WEEKLEY,
DIRECTOR; GLORIETA 2.0, INC.
IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
TERRY LOOPER, DIRECTOR GLORIETA 2.0 INC.
IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
LEONARD RUSSO, DIRECTOR GLORIETA 2.0 INC.
IN HIS OFFICIAL AND INDIVDUAL CAPACITY;
ANTHONY SCOTT, AS EXECUTIVE DIRECTOR
IN HIS OFFICIAL AND INDIVIDUAL CAPACITY
OF GLORIETA 2.0 INC.; HAL HILL, AS CONSULTING
DIRECTOR IN HIS OFFICIAL AND
INDIVIDUAL CAPACITY OF GLORIETA 2.0 INC.;
LINDA K. DEAN, TRUSTEE “LIFEWAY” N.M.;
and JEFF WARD, DIRECTOR OF FINANCE
AND ADMINISTRATION GLORIETA 2.0 INC.,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITY
Defendants.

OPINION & ORDER GRANTING MOTION TO STAY
AND STAYING PROCEEDINGS UNTIL
RESOLUTION OF DEFENDANTS’ MOTION TO DISMISS
Before the Court is Defendants’ emergency motion to stay discovery pending resolution
of three motions to dismiss pro se Plaintiffs L. Kirk and Susie Tompkins’ amended complaint.
[Doc. 31]. The Tompkins have sued more than a dozen individual and entities for their alleged
malfeasance in connection with the 2013 sale of the Glorieta Conference Center, a vast complex
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in Santa Fe County, New Mexico and related termination of the Tompkins’ ground lease there.
[Doc. 20]. In the pleading, the Tompkins note their claims relate to an earlier action they filed in
this Court and that United States District Judge Browning previously dismissed and the Tenth
Circuit affirmed on appeal. [Doc. 20, Am. Compl., ¶ 1]. Nonetheless, the Tompkins believe they
may move forward with their suit and have now propounded 25 interrogatories and 27 requests
for production on Defendant Thom Rainer, president of the entity that sold the Center. [Doc. 311]. Considering the case’s present posture and the parties’ submissions, the Court will stay
proceedings.
ANALYSIS
Federal Rule of Civil Procedure 26(d) governs the commencement of discovery. Under
Rule 26(d), “[a] party may not seek discovery from any source before the parties have conferred
as required by Rule 26(f), except in a proceeding exempted from initial disclosure . . . or where
authorized by these rules, stipulation or the court order.” Fed. R. Civ. P. 26(d)(1). Subsection
(f)’s “meet and confer” obligation, among other items, contemplates discussions between the
parties on written discovery and the development of a plan for undertaking such discovery. See
Fed. R. Civ. P. 26(f)(2). Unless a case involves administrative review, forfeitures, habeas corpus,
unrepresented wards or inmates, administrative subpoenas or summons, actions by the
government to recover benefits or collect student loans, ancillary proceedings, or enforcement of
arbitration awards, discovery may not begin until the parties have these basic discussions, the
parties stipulate, or the court allows it. See Fed. R. Civ. P. 26(d).
The Court concludes that discovery is not yet permitted under the Federal Rules.
Tompkins assert five causes of action. [See Doc. 20, ¶¶ 38-103 (alleging fraud (Count I); denial
of due process (Count II); “unconscionable contract” (Count III); breach of fiduciary duty (Count
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IV); and “extortion and malice aforethought” (Count V))]. None of them sound in any of the
exceptions to Rule 26(d). Nor is there evidence that the parties have met and conferred as
required by Rule 26(f). Had they done so, they would have developed jointly a discovery plan
that would address the very issue Defendants raise, namely Defendants’ stated desire to have the
motions to dismiss ruled on before moving forward. At the very least, the parties would have
presented the Court with their inability to agree on the amount and timing of discovery. The
emergency motion to stay and the response themselves are indicative of the absence of
stipulation allowing discovery to proceed. The Court has reviewed the docket and is satisfied
there has been no judicial sanction of early discovery.
The Court is cognizant of the Tompkins’ pro se status; as they readily point out, the
Court must construe their papers liberally. See Garrett v. Selby, Connor, Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005). This obligation, however, does not allow the Court to make
arguments on their behalf or excuse their compliance with procedural rules. See id. (explaining
that “[a]lthough a pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers,” the Tenth Circuit has required “pro
se parties follow the same rules of procedure that govern other litigants” and will not “take on
the responsibility of serving as the litigant’s attorney”). Even liberally construed, Plaintiffs’
response does not identify any of the exceptions to the meet-and-confer prerequisite to
commencing discovery. Instead, much of the argument is devoted to the lengthy procedural
history of their previous case.
To be fair, as the Tompkins note, the parties did file a notice wherein the parties
stipulated to extending Tompkins’ deadline to respond to pending motions and also agreeing that
responses to discovery would be due by a date certain. [Doc. 34]. The Court declines to accept
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this stipulation as the type of consent Rule 26(d) requires of the parties to engage in discovery
without meeting and conferring. The notice of extension concerns only responding to discovery,
not engaging in it, which permissibly includes lodging objections, refusing to comply, and
seeking a protective order.

Notably, the notice was filed after Defendants asked for an

emergency stay, not before the Tompkins propounded their requests. Nor have Defendants’
withdrawn their motion as they have other filings. Discovery is premature under the rules, and
Defendants should be relieved of the burden of engaging in it.
To the extent the parties would have to meet and confer prior to the resolution of the
dispositive motions or to the extent the notice of extension might constitute a stipulation under
Rule 26(d), the Court concludes there is good cause for a stay. As the Supreme Court has held,
federal courts possess the inherent authority to stay discovery. Clinton v. Jones, 520 U.S. 681,
706 (1997) (“The District Court has broad discretion to stay proceedings as an incident to its
power to control its own docket”) (citation omitted). Rule 26 similarly empowers the Court to
protect a party from unduly burdensome discovery. See Fed. R. Civ. P. 26(c)(1) (“The court
may, for good cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense”). The party seeking to avoid discovery, however, must
establish a particular need for the stay. See Clinton, 520 U.S. at 707.
As United States Magistrate Judge William Lynch of this District has explained, the
Court “may consider whether there are pending motions that would dispose of the entire case,
and whether those motions appear meritorious or raise substantial concerns regarding the
viability of the plaintiff's claims.” Maestas v. Seidel, 2017 U.S. Dist. LEXIS 36969, *2 (D.N.M.
Mar. 15, 2017) (citation omitted). In determining the propriety of staying discovery, the Court
should also examine the burden to the non-movant as well as any potential prejudice. A party
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opposing the stay may defeat it if discovery is necessary to resist a dispositive motion or
information may be lost if a stay goes into effect. See id.
Under this framework, the Court determines a stay is appropriate. Defendants have
sought dismissal in three separate filings. If granted, these motions would dispose of all of the
counts. At least facially, there appears to be some merit to Defendants contention that the
doctrines of claim and issue preclusion bar recovery, especially in light of the Tompkins own
concession that the case is related to a previous action that has been dismissed. The litigation is
in its early life. Absent a court order or stipulation, Rule 26 would not even permit discovery.
Defendants’ motions are legally, not factually driven: they appear to accept the pleaded and
judicially noticeable facts as true, obviating the Tompkins need for immediate discovery. The
Tompkins do not claim that material information will be lost if a stay is granted. The Court
recognizes that the Tompkins’ challenge Defendants’ recitation of the procedural posture of the
past case and, liberally construed, attack the elements of the collateral estoppel and res judicata.
At this stage of the litigation, however, a stay will not affect Tompkins’ ability contest
Defendants’ preclusion arguments, and there does not appear to be any appreciable prejudice to
the Tompkins from whatever brief delay occurs while the Court rules on the dispositive motions.
CONCLUSION
For the reasons state above, a stay of discovery is warranted while the Court considers the
Defendants’ motions to dismiss.
Accordingly, it is ORDERED that Defendants’ motion to stay [Doc. 31] is GRANTED.
All discovery in this case is STAYED until further order from the Court after Defendants’
motions to dismiss have been resolved.

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It is further ORDERED that the parties must ensure in the future that they appropriately
sign all filings with the Court, include on any pleading the party’s mailing address, email
address, and telephone number, and that they properly serve the other party(ies) or, if
represented, the other party’s(ies’) attorneys. See Fed. R. Civ. P. 5 & 11.

___________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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