Osman v. Mission Essential Personnel, LLC

Filing 17

ORDER denying 14 Motion to Stay Discovery. Defendant shall respond to written discovery which has been served w/in thirty (30) days of the date of this order. Signed by Magistrate Judge Terence P Kemp on 5/18/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Zuhal Osman,

:

Plaintiff,
v.

:
:

Mission Essential Personnel,
LLC,
Defendant.

Case No.

2:11-cv-577

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
ORDER

On September 19, 2011, defendant Mission Essential
Personnel, LLC filed a motion to dismiss the complaint under
Fed.R.Civ.P. 12(b)(6), arguing that some (but not all) of the
claims asserted in the complaint should be dismissed on various
grounds.

The motion is fully briefed and remains pending.

On March 29, 2012, Mission Essential Personnel moved for a
stay of discovery pending a ruling on the motion to dismiss.

The

motion states that discovery was served on Mission Essential
Personnel on March 22, 2012, and that if the motion to dismiss
were granted, a substantial amount of the time needed to respond
to that discovery could be saved.

Plaintiff responded on April

23, 2012, making two arguments: (1) that the mere pendency of a
motion to dismiss does not justify a stay of discovery, and (2)
that because the motion to dismiss, even if granted, would not
result in a complete dismissal of the case, there is no reason to
stay discovery.

Mission Essential Personnel has not filed a

reply.
A stay of discovery for any reason is a matter ordinarily
committed to the sound discretion of the trial court.
Corp. v. Fedders Corp.. 643 F.2d 1229 (6th Cir. 1981).

Chrysler
In ruling

upon a motion for stay, the Court is required to weigh the burden

of proceeding with discovery upon the party from whom discovery
is sought against the hardship which would be worked by a denial
of discovery.

Additionally, the Court is required to take into

account any societal interests which are implicated by either
proceeding or postponing discovery.

Marrese v. American Academy

of Orthopedic Surgeons, 706 F.2d 1488, 1493 (7th Cir. 1983).
When a stay, rather than a prohibition, of discovery is sought,
the burden upon the party requesting the stay is less than if he
were requesting a total freedom from discovery.

Id.

However, one argument that is usually deemed insufficient to
support a stay of discovery is that a party intends to file, or
has already filed, a motion to dismiss for failure to state a
claim under Rule 12(b)(6).

As one court has observed,

The intention of a party to move for judgment on the
pleadings is not ordinarily sufficient to justify a
stay of discovery. 4 J. Moore, Federal Practice §
26.70[2], at 461. Had the Federal Rules contemplated
that a motion to dismiss under Fed.R.Civ.Pro. 12(b)(6)
would stay discovery, the Rules would contain a
provision to that effect. In fact, such a notion is
directly at odds with the need for expeditious
resolution of litigation.... Since motions to dismiss
are a frequent part of federal practice, this provision
only makes sense if discovery is not to be stayed
pending resolution of such motions. Furthermore, a
stay of the type requested by defendants, where a party
asserts that dismissal is likely, would require the
court to make a preliminary finding of the likelihood
of success on the motion to dismiss. This would
circumvent the procedures for resolution of such a
motion. Although it is conceivable that a stay might be
appropriate where the complaint was utterly frivolous,
or filed merely in order to conduct a "fishing
expedition" or for settlement value, cf. Blue Chip
Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95
S.Ct. 1917, 1928, 44 L.Ed.2d 539 (1975), this is not
such a case.
Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N. D. Cal.
-2-

1990). See also Turner Broadcasting System, Inc. v. Tracinda
Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (“a pending Motion to
Dismiss is not ordinarily a situation that in and of itself would
warrant a stay of discovery....”).

Thus, unless the motion

raises an issue such as immunity from suit, which would be
substantially vitiated absent a stay, or unless it is patent that
the case lacks merit and will almost certainly be dismissed, a
stay should not ordinarily be granted to a party who has filed a
garden-variety Rule 12(b)(6) motion.
Here, Mission Essential Personnel has not argued its motion
to stay in light of these factors.

Further, the motion to

dismiss does not raise either immunity from suit or a clear-cut
issue such as the statute of limitations, but argues a variety of
reasons why six of the seven claims at issue are insufficient.
Plaintiff has filed a response which is some 22 pages long.
While the length of the response is not itself determinative of
whether there are good faith arguments to be made in opposition
to the motion to dismiss, it appears from a review of the
response that it contains a number of non-frivolous arguments,
and it is by no means a virtual certainty that Mission Essential
Personnel will prevail either on the entirety of its motion, or
any specific portion of it.

Given this fact, a stay of discovery

is simply not appropriate.
For all of these reasons, defendant’s motion to stay
discovery (#14) is denied.

Defendant shall respond to the

written discovery which has been served within 30 days of the
date of this order.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or
-3-

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp
United States Magistrate Judge

-4-