Boddie v. PNC Bank, NA et al
Filing
28
OPINION AND ORDER denying 21 Motion to Stay Discovery. Signed by Magistrate Judge Terence P Kemp on 9/17/2012. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Karen Boddie,
Plaintiff,
v.
:
:
:
PNC Bank, NA, et al.,
Defendants.
Case No. 2:12-cv-158
:
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
:
OPINION AND ORDER
This case involves a dispute over plaintiff Karen Boddie’s
attempt to engage in a specific banking transaction at the Bexley
Branch of PNC Bank on July 30, 2011.
Believing that she had been
prevented from completing the transaction as she requested due to
her race and that she was otherwise mistreated by bank employees,
Ms. Boddie filed an eleven-count complaint against both PNC Bank
and PNC Financial.
On July 26, 2012, both defendants moved for judgment on the
pleadings as to ten of the eleven counts of the complaint.
The
parties subsequently stipulated to the dismissal of PNC Financial
as a party, and to the dismissal of some of the remaining counts
which had been pleaded against PNC Bank.
At the same time they
moved for judgment on the pleadings, the defendants moved for a
stay of discovery until their motion for judgment on the
pleadings is decided.
Ms. Boddie opposes such a stay.
For the
following reasons, no stay of discovery will be ordered.
I.
Defendants advance the typical reasons for staying discovery
pending resolutions of a dispositive motion: that if the motion
is granted in its entirety, there will be no need for discovery
at all (or for much discovery - one count of the complaint is not
addressed by the motion), and that even if the motion is granted
only in part, it will clarify the claims on which discovery will
be needed and may result in less discovery, with the potential
for cost savings to both parties.
Defendants also argued that
PNC Financial would be spared the expense of engaging in
discovery were the claims against it dismissed, but this argument
has been mooted by the stipulated dismissal of that party.
Finally, defendants note that some police officers are among the
potential deponents in this case, and it would be better for the
public to postpone their depositions until it is known whether
taking their depositions will even be necessary.
Ms. Boddie,
predictably, argues that she is interested in a prompt resolution
of her case and that the Court should not delay discovery for
however long it may take to resolve the motion for judgment on
the pleadings.
The Court notes that the current discovery cutoff
date is February 28, 2013, which is a fair distance into the
future, but that the first deadline for identifying expert
witnesses is only about a month away.
II.
As defendants correctly note, a stay of discovery for any
reason is a matter ordinarily committed to the sound discretion
of the trial court.
Chrysler Corp. v. Fedders Corp.. 643 F.2d
1229 (6th Cir. 1981).
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
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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) or other dispositive motion.
court has observed,
As one
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.
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
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stay should not ordinarily be granted to a party who has filed a
garden-variety Rule 12(b)(6) or 12(c)) motion.
The occasions when this Magistrate Judge has granted such a
stay are few and far between.
DiYanni v. Walnut Tp. Bd. of
Educ., 2006 WL 2861018 (S.D. Ohio Oct. 4, 2006) is representative
of those instances where a stay was denied; as the Court said in
that case, in reasoning equally applicable here,
the motion for judgment on the pleadings does not raise
any issues of immunity from suit, nor does it present
the type of narrow legal issue (such as the running of
the statute of limitations) which is easily evaluated
in order to determine whether the motion to dismiss has
merit. Without commenting on the merits of the
defendants' motion for judgment on the pleadings, the
Court notes that legal arguments have been presented
both with respect to the viability of the §1983 claim
and the state law negligence claim and the Court is not
in a position to determine that it is a virtual
certainty that the motion will be granted. No other
reasons have been advanced to stay discovery.
Consequently, as a sound exercise of the Court's
discretion, the Court will deny the motion to stay.
Id. at *2.
See also Osman v. Mission Essential Personnel, LLC,
2012 WL 1831706 (S.D. Ohio May 18, 2012); Solomon Realty Co. v.
Tim Donut U.S. Ltd., Inc., 2009 WL 2485992 (S.D. Ohio Aug. 11,
2009); Lenker v. National Service Industries, Inc., 2006 WL
642560 (S.D. Ohio March 9, 2006).
When the Court has ordered a
stay, the circumstances generally indicated that some preliminary
evaluation had been made of the plaintiff’s claims and they had
been found wanting, and that any stay would be short.
See, e.g.,
Carter v. Wilkinson, 2009 WL 81217 (S.D. Ohio Jan. 9, 2009)(stay
ordered where Magistrate Judge had already issued a report and
recommendation on the dispositive motion and recommended
dismissal of the claims against 25 defendants); Miller v.
Countrywide Home Loans, 2010 WL 2246310 (S.D. Ohio June 4, 2010)
(stay ordered where many of the plaintiff’s claims had been
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decided against him in another court and where the potential for
burdensome discovery was great).
Despite the fact that stays of discovery during the pendency
of dispositive motions are rarely granted, the Court does
consider each such motion on its individual merits.
As the Court
noted in Heartland Jockey Club Ltd. v. Penn National Gaming,
Inc., 2009 WL 5171829, *4 (S.D. Ohio Dec. 21, 2009),
This Court takes seriously its obligation to manage
discovery and recognizes that there are cases where the
plaintiff's claim is so tenuous, and the potential
injury to either private or societal interests from
unfettered discovery is so great, that the Court must
limit or preclude discovery in order to strike the
proper balance between the competing interests
involved.
That does not, however, appear to be this case.
It is true, from
a review of the briefing on the motion for judgment on the
pleadings, that some of Ms. Boddie’s claims appear to be weaker
than others, but if any of her significant claims - such as the
claim under 42 U.S.C. §1981 - survive, relatively full discovery
will occur on such claims.
Defendants have made one additional argument based on the
fact that Ms. Boddie has expressed a wish to depose the police
officers who were called to the bank on the day in question.
However, the mere fact that police officers are among the
potential deponents is not a particularly weighty factor in
determining whether to stay discovery.
That is not to say that
police officers’ time is not valuable or that they do not occupy
a place of importance in society; it is, and they do.
But due to
the very nature of their profession, police officers often become
witnesses in both civil and criminal cases.
Further, their
depositions can be taken at times which do not interfere with
their work schedules or the safety of their respective
communities.
If scheduling issues do arise with regard to police
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officers, they (like any other witnesses) may raise those issues
at an appropriate time, and the Court will treat them fairly
giving due regard to their status as non-party witnesses who,
because they have no stake in the outcome, should be accommodated
as much as possible both by counsel (see Fed.R.Civ.P. 45) and by
the Court.
III.
For all of these reasons, and in the exercise of its
discretion, the Court denies the defendants’ motion for a stay of
discovery (#21) pending a resolution of the motion for judgment
on the pleadings.
IV.
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
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
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