Berger v. The Department of Defense

Filing 57

ORDER denying without prejudice 41 Motion ; granting in part and denying in part 49 Letter Motion for Discovery: For the [reasons stated], Plaintiff's motion is DENIED WITHOUT PREJUDICE and Defendant's motion is GRANTED IN PART and DENIED IN PART. It is hereby ORDERED that discovery in this action is stayed pending resolution of Defendant's motion to dismiss. (Signed by Magistrate Judge Stewart D. Aaron on 03/05/2025) (Aaron, Stewart)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

03/05/2025

Jonathan S. Berger,
Plaintiff,

1:24-cv-07450 (JHR) (SDA)

-against-

ORDER

The Department of Defense,
Defendant.
STEWART D. AARON, United States Magistrate Judge:
Pending before the Court are a “Joint Motion to Discover and Subpoena Privileged
Information and Documents,” which was filed by Plaintiff on January 31, 2025 (Pl.’s 1/31/25 Mot.,
ECF No. 41), and Defendant’s Letter Motion requesting that Plaintiff’s motion be denied or, in
the alternative, that discovery be stayed pending resolution of Defendant’s motion to dismiss.
(Def.’s 2/18/25 Mot., ECF No. 49.) For the reasons set forth below, Plaintiff’s motion is DENIED
WITHOUT PREJUDICE and Defendant’s motion is GRANTED IN PART and DENIED IN PART.
LEGAL STANDARDS
Under Rule 26(c) of the Federal Rules of Civil Procedure, a court for “good cause” may
“issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1). “‘[U]pon a showing of good cause a district
court has considerable discretion to stay discovery’ pursuant to Rule 26(c).” Republic of Turkey v.
Christie’s, Inc., 316 F. Supp. 3d 675, 677 (S.D.N.Y. 2018) (quoting Hong Leong Fin. Ltd. (Singapore)
v. Pinnacle Performance Ltd., 297 F.R.D. 69, 72 (S.D.N.Y. 2013)). “The burden of showing good
cause for the issuance of a protective order falls on the party seeking the order.” Id. (citing Brown
v. Astoria Fed. Sav. & Loan Ass’n, 444 F. App’x 504, 505 (2d Cir. 2011)). “To establish good cause

under Rule 26(c), courts require a particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements.” Id. (quoting Jerolimo v. Physicians for Women,
P.C., 238 F.R.D. 354, 356 (D. Conn. 2006)).
“[A] court determining whether to grant a stay of discovery pending a motion must look
to the particular circumstances and posture of each case.” Republic of Turkey, 316 F. Supp. 3d at
677. “Courts should consider multiple factors, including the breadth of discovery sought, the
burden of responding to it, the prejudice that would result to the party opposing the stay, and
the strength of the pending motion forming the basis of the request for stay.” Id. (quoting Country
Club of Fairfield, Inc. v. N.H. Ins. Co., No. 13-CV-00509 (VLB), 2014 WL 3895923, at *3 (D. Conn.
Aug. 8, 2014).
“[T]he Federal Rules entrust the Court with the discretion to determine if a stay is
warranted.” Short v. City of Rochester, No. 22-CV-06263 (EAW) (MJP), 2024 WL 4002449, at *2
(W.D.N.Y. Aug. 30, 2024) (citing Kaplan v. Lebanese Canadian Bank, SAL, 610 F. Supp. 3d 533, 534
(S.D.N.Y. 2022)).
DISCUSSION
The Court, in its discretion, finds that discovery in this action should be stayed due to the
lack of merit of Plaintiff’s Complaint. As set forth in the Report and Recommendation filed today
in this action, the Court has recommended that this action be dismissed as frivolous. In these
circumstances, Plaintiff is not entitled to any discovery. See 6 Moore’s Federal Practice §
26.105[3][c], at 26-536 (3d ed. 2020) (“a stay of discovery is appropriate when the [dispositive]
motion appears to have substantial grounds”).

2

In the event, that this Court’s recommendation is not adopted and this action continues,
Plaintiff may renew his request for discovery. Accordingly, Plaintiff’s motion for discovery is
denied without prejudice.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion is DENIED WITHOUT PREJUDICE and
Defendant’s motion is GRANTED IN PART and DENIED IN PART. It is hereby ORDERED that
discovery in this action is stayed pending resolution of Defendant’s motion to dismiss.
SO ORDERED.
Dated:

New York, New York
March 5, 2025
______________________________
STEWART D. AARON
United States Magistrate Judge

3