Kiser v. Reitz et al
ORDER granting 37 Motion to Stay Discovery; denying 42 Motion to Strike ; granting 43 Motion for Extension of Time to File Response/Reply. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/21/2016. (mas)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
DR. RUSSEL KISER D.D.S., M.S.,
HARRY KAMDAR, et al.,
Case No. 12-CV-574
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers
OPINION AND ORDER
This matter is before the Court for consideration of Defendants’ Motion to Stay
Discovery (ECF No. 37), Plaintiffs’ Memorandum in Opposition (ECF No. 40), Defendants’
Reply (ECF No. 41), Plaintiff’s Motion to Strike Defendants’ Reply (ECF No. 42), Defendants’
Motion for an Extension of Time to File Reply Memorandum Instanter and Defendants’
Response to Plaintiff’s Motion to Strike (ECF No. 43), Plaintiff’s Memorandum in Opposition to
Defendants’ Motion for an Extension of Time (ECF No. 44), and Defendants’ Reply in Support
of Motion for Extension of Time (ECF No. 45). For the reasons below, Defendants’ Motion for
Extension of Time (ECF No. 43) is GRANTED, Plaintiff’s Motion to Strike (ECF No. 42) is
DENIED, and Defendants’ Motion to Stay (ECF No. 37) is GRANTED.
Plaintiff, a licensed dentist, brought this action challenging the constitutionality of the
Ohio State Dental Board’s (“Board”) regulation prohibiting him from calling himself an
“endodontist” because he performs procedures outside the scope of that specialty. The Board
voted to rescind the at-issue regulation, with an effective date of December 22, 2016, and has
also publically announced its intent not to enforce the regulation. On November 17, 2016,
Defendants filed a Motion to Dismiss for Lack of Jurisdiction, arguing that the Board’s
rescission of the regulation at issue renders this action moot. (ECF No. 36.) Defendants
contemporaneously filed the subject Motion to Stay (ECF No. 37), seeking a stay of discovery
pending resolution of their Motion to Dismiss.
In their Motion to Stay, Defendants argue that because the Board’s rescission of the
subject regulation renders this action moot, discovery would serve no purpose and would waste
party resources. Defendants contend that a stay of discovery pending the Court’s resolution of
this threshold, legal issue is therefore warranted.
Plaintiff opposes a stay, arguing that the instant action is not moot because he is entitled
to a declaration that his civil rights have been violated for the past four years. Plaintiff maintains
that “there is a very real possibility that the challenged conduct could be repeated through repromulgation of the regulation.” (Pl.’s Mem. in Opp. 2, ECF No. 40.) Plaintiff also notes that
he is “investigating evidence that suggests that rescission of the regulation was done in bad faith
. . . .” (Id.) He asserts that he needs to take “three or four depositions” to assist the Court in
deciding Defendants’ Motion to Dismiss.
Defendants filed their Reply in support of the Motion to Stay three business days late, on
December 20, 2016. Plaintiff filed a Motion to Strike (ECF No. 42), asking the Court to strike
the Reply as untimely, prompting Defendants to file a Motion for Extension of Time to for Leave
to File Reply Memorandum Instanter and Response to Plaintiff’s Motion to Strike (ECF No. 43).
Defendants explain that they were under the mistaken impression that the Court’s November 29,
2016 Order (ECF No. 39) granted an extension until December 22, 2016, for them to file their
Reply. The November 29, 2016 Order upon which they rely, however, only allowed an
extension of time until December 22, 2016, for Plaintiff to file his Memorandum in Opposition
to Defendants’ Motion to Dismiss. Plaintiff opposes Defendants’ requested extension of time,
arguing that Defendants have failed to establish good cause for the requested extension and also
that he has been prejudiced because he sought leave to conduct discovery on issues raised in the
Motion to Dismiss. (ECF No. 44.) In their Reply in support of their Motion for an Extension of
Time, Defendants produced an email in which counsel contemplated seeking extensions of time
for both the Motion to Dismiss and the Motion to Stay. (ECF No. 45-1.) Defendants also
represent that they would not oppose any request by Plaintiff for an extension of time in which to
respond to their Motion to Dismiss.
In their Reply in Support of their Motion to Stay (ECF No. 41), Defendants oppose
Plaintiff’s request for deposition discovery. Defendants also contest Plaintiff’s assertion that the
regulation at issue could easily be re-enacted and sets forth the procedures for promulgating such
Plaintiff’s Motion to Strike and Defendants’ Motion for an Extension of Time
As a threshold matter, Plaintiff’s Motion to Strike Defendants’ Reply (ECF No. 42) is
DENIED, and Defendants’ Motion for an Extension of Time (ECF No. 43) is GRANTED. As a
general rule, the Court prefers to decide a case on its merits. See, e.g., Thacker v. City of
Columbus, 328 F.3d 244, 252 (6th Cir. 2003); Leak v. Lexington Ins. Co., 641 F.Supp. 2d 671,
674 (S.D. Ohio 2009). Here, Defendants have offered a good-faith basis for missing the deadline
by only three business days. The Court further finds Plaintiff’s allegations of prejudice to be
without merit. Should Plaintiff require additional time to respond to the Motion to Dismiss, he
may file a motion seeking such an extension.
Defendants’ Motion to Stay
Having reviewed the parties’ briefs and the pending Motion to Dismiss Case as Moot, the
Court is persuaded that a temporary stay of discovery pending resolution of Defendants’ Motion
Dismiss is warranted.
A district court has “the inherent power to stay proceedings based on its authority to
manage its docket efficiently.” Ferrell v. Wyeth–Ayerst Labs., Inc., No. 1:01-cv-447, 2005 WL
2709623, *1 (S.D. Ohio Oct. 21, 2005) (citing In re Airline Pilots Ass’n. v. Miller, 523 U.S. 866,
880 (1998)); see also Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936). The Court, however,
“‘must tread carefully in granting a stay of proceedings since a party has a right to a
determination of its rights and liabilities without undue delay.’” Id. (quoting Ohio Envtl. Council
v. U.S. Dist. Ct., 565 F.2d 393, 396 (6th Cir. 1977)). In deciding whether to grant a stay, courts
commonly consider factors such as: (1) the need for a stay; (2) the stage of litigation; (3)
whether the non-moving party will be unduly prejudiced or tactically disadvantaged; (4) whether
a stay will simplify the issues; and (5) whether burden of litigation will be reduced for both the
parties and the court. Grice Eng’g, Inc. v. JG Innovs., Inc., 691 F. Supp. 2d 915, 920 (W.D. Wis.
2010) (citations omitted). The movant bears the burden of showing both a need for delay and
that “neither the other party nor the public will suffer harm from entry of the order.” Ohio Envtl.
Council, 565 F.2d at 396.
As Defendants point out and Plaintiff does not dispute, the pending Motion to Dismiss
presents threshold legal questions. In addition, resolution of the Motion to Dismiss could
dispose of the entire case or at least simplify the issues presented in this action. Adjudication of
the Motion to Dismiss prior to the parties’ engaging in discovery could therefore preserve both
judicial and counsel’s resources. Moreover, although this case has been pending for a number of
years, from a procedural standpoint, this case remains in its infancy. Finally, the Court cannot
discern how the short stay contemplated will unduly prejudice or tactically disadvantage
Plaintiff, especially given that the regulation that he challenges in this instant action has been
In sum, the Court finds that Defendants have carried their burden to show that a limited
stay of discovery is appropriate under the circumstances presented in this case. The Court
therefore exercises its discretion to conclude that a temporary stay pending resolution of
Defendants’ Motion to Dismiss is warranted. In addition, Court declines to permit Plaintiff to
depose the four Board members he identified in his Memorandum in Opposition to Defendants’
Motion to Stay. At this juncture, based upon the parties’ briefing, the Court is unable to discern
how their deposition testimony is necessary for resolution of Defendants’ Motion to Dismiss.
Plaintiff may, of course, raise this issue again in his Memorandum in Opposition to Defendants’
Motion to Dismiss.
For the reasons set forth above, Defendants’ Motion for Extension of Time (ECF No. 43)
is GRANTED, Plaintiff’s Motion to Strike (ECF No. 42) is DENIED, and Defendants’ Motion
to Stay (ECF No. 37) is GRANTED. Discovery in this action is therefore STAYED pending
resolution of Defendants’ Motion to Dismiss. Upon resolution of Defendants’ Motion to
Dismiss, the Court will establish a new case schedule if appropriate.
IT IS SO ORDERED.
Date: December 21, 2016
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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