Novel v. Lowe et al

Filing 82

OPINION AND ORDER denying 73 Motion to TakeDefendants' Depositions by Telephone ; granting 75 Motion to Stay Discovery and Amend Case Shedule. Signed by Magistrate Judge Norah McCann King on 2/11/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SUR G. NOVEL, et al.,
Plaintiffs,
vs.

Civil Action 2:13-cv-703
Judge Watson
Magistrate Judge King

WILLIAM DOUGLAS LOWE, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Pro Se Plaintiff Sur G.
Novel’s Motion to Take Defendants’ Depositions by Telephone, Doc. No.
73, and the Joint Motion of Defendants to Stay Discovery and Amend the
Case Schedule or, in the Alternative, Motion to Compel Plaintiff to
Appear in Person for Deposition, Doc. No. 75 (“Motion to Stay”).
This case is related to certain Ohio state court litigation
arising out of family trusts and Ohio Supreme Court disciplinary
proceedings against plaintiff Novel, a lawyer who is proceeding pro
se.

The action was originally filed on September 19, 2012 in the

United States District Court for the Northern District of New York,
Complaint, Doc. No. 1, and was thereafter transferred to this Court,
Memorandum-Decision and Order, Doc. No. 45.
On September 16, 2013, the Amended Complaint, Doc. No. 57, was
filed, joining Anna Craig, a resident of Nevada and an alleged
beneficiary of an Ohio trust. Id.

The Amended Complaint asserts

claims of malicious prosecution, breach of contract, violation of

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federal law (including federal antitrust laws), negligence, fraud,
interference with the right of sepulcher, the unauthorized practice of
law and professional misconduct against fifteen defendants, including
an Ohio lawyer, a retired Ohio judge sitting by assignment, an Ohio
trust and its trustee, the Estate of Glen Gallwitz and its executor
and beneficiaries of the trust and estate.

Id.

A preliminary pretrial conference was held on August 28, 2013,
pursuant to the provisions of Fed. R. Civ. P. 16(b).

Following that

conference, the Court issued an order directing, inter alia, that all
discovery be completed by April 18, 2014.

Preliminary Pretrial Order,

Doc. No. 55, p. 3.
Defendants Crystal Gallwitz, Kevin Gallwitz, Ray Gallwitz, Betty
Sue Street, Patrick M. McGrath, William Douglas Lowe and Reese, Pyle,
Drake & Meyer, PLL, moved to dismiss plaintiffs’ claims, challenging,
inter alia, this Court’s subject matter jurisdiction.
58, 60, 61.

See Doc. Nos.

After plaintiff Novel moved for leave to take the

depositions of defendants by telephone, Doc. No. 73, all defendants
jointly filed the Motion to Stay, asking that discovery be stayed and
that all case deadlines be suspended pending resolution of the motions
to dismiss.

In the alternative, defendants ask that plaintiff Novel

be required to appear in person in Columbus, Ohio, for his deposition.
Id.

Plaintiff Novel opposes the Motion to Stay, Doc. No. 78, and

defendants have filed a reply memorandum, Doc. No. 80.
Ordinarily, “the fact that a party has filed a case-dispositive
motion is usually deemed insufficient to support a stay of discovery.”

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Bowens v. Columbus Metro. Library Bd. of Trs., No. 2:10-cv-00219, 2010
U.S. Dist. LEXIS 103399, at *4 (S.D. Ohio Sept. 16, 2010).

See also

Williams v. New Day Farms, LLC, No. 2:10-cv-0394, 2010 U.S. Dist.
LEXIS 98934, at *3 (S.D. Ohio Sept. 7, 2010).

However, “‘[t]rial

courts have broad discretion and inherent power to stay discovery
until preliminary questions that may dispose of the case are
determined.’”

Gettings v. Bldg. Laborers Local 310 Fringe Benefits

Fund, 349 F.3d 300, 304 (6th Cir. 2003) (quoting Hahn v. Star Bank,
190 F.3d 708, 719 (6th Cir. 1999)).

See also Ohio Bell Tel. Co. v.

Global NAPs Ohio, Inc., No. 2:06-cv-0549, 2008 U.S. Dist. LEXIS 21288,
at *5 (S.D. Ohio Mar. 4, 2008) (noting that the court “might be
persuaded to grant a stay of discovery if the issues were “clear-cut”
such that “the likelihood of a jurisdictional dismissal were high[,]”
but denying request to stay discovery pending resolution of a motion
to dismiss for lack of subject matter jurisdiction where the
jurisdictional issue raised was “fairly debatable”).

“Limitations on

pretrial discovery are appropriate where claims may be dismissed
‘based on legal determinations that could not have been altered by any
further discovery.’”

Id. (quoting Muzquiz v. W.A. Foote Mem’l Hosp.,

Inc., 70 F.3d 422, 430 (6th Cir. 1995)).

Accordingly, a stay of

discovery pending resolution of a dispositive motion may be
appropriate when the dispositive motion “raises an issue such as
immunity from suit, which would be substantially vitiated absent a
stay[.]”

Williams, 2010 U.S. Dist. LEXIS 98934, at *5.

The Court concludes that the circumstances of this case justify a

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stay of discovery in order to address the preliminary issue of subject
matter jurisdiction.1

First, two of the motions to dismiss argue that

this Court lacks diversity jurisdiction pursuant to 28 U.S.C. § 1332.
See Doc. Nos. 58, p. 9, and 61, pp. 5, 7-8 (citing, inter alia, Novel
v. Zapor, Case No. 2:12-cv-737, Doc. No. 17, which concluded that
plaintiff Novel is domiciled in Thailand and is therefore stateless
for purposes of diversity jurisdiction).

These motions, if granted,

would divest this Court of diversity jurisdiction.
Second, two of the motions to dismiss also argue that federal
question jurisdiction under 28 U.S.C. § 1331 is lacking.
Nos. 58, pp. 10-11, and 61, pp. 10-11.

See Doc.

The only federal claims

asserted in this action are generalized claims, see Amended Complaint,
p. 33 (“Violation of US Federal, Ex Post Facto & Anti-Trust Laws”),
asserted against defendant McGrath arising out of actions taken by
this defendant in his capacity as a judge. Id., at ¶¶ 177-96.
Defendant McGrath invokes the protection of absolute judicial
immunity.

See Doc. No. 60.

This immunity, if applicable, would be

“substantially vitiated” absent a stay.
LEXIS 98934, at *5.

See Williams, 2010 U.S. Dist.

Moreover, should the Court grant defendant

McGrath’s motion to dismiss, there would be no federal claims left in
the action.2

In the absence of diversity jurisdiction, any remaining

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In so concluding, the Court emphasizes that it expresses no opinion on the
merits of the pending motions to dismiss.
2
Judicial immunity offers protection from liability for monetary damages.
Mireles v. Waco, 502 U.S. 9, 10 n.1 (1991). The Amended Complaint also seeks
injunctive relief against defendant McGrath, id., at ¶ 196 (“Plaintiff Novel
. . . has a right to immediate injunctive relief.”). It is not apparent,
however, what form of injunctive relief against defendant McGrath might be

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state law claims would likely be dismissed without prejudice to
renewal in an appropriate state court.
Gibbs, 383 U.S. 715 (1966).

See United Mine Workers v.

For all these reasons, the Court

concludes that a stay of discovery is appropriate.
WHEREUPON, Pro Se Plaintiff Sur G. Novel’s Motion to Take
Defendants’ Depositions by Telephone, Doc. No. 73, is DENIED without
prejudice and the Joint Motion of Defendants to Stay Discovery and
Amend the Case Schedule or, in the Alternative, Motion to Compel
Plaintiff to Appear in Person for Deposition, Doc. No. 75, is GRANTED.
Discovery in this action is STAYED and the case deadlines set forth in
the Preliminary Pretrial Order, Doc. No. 55, are SUSPENDED pending
resolution of the motions to dismiss, Doc. Nos. 58, 60, 61.

The Court

will establish a case schedule, if otherwise appropriate, following
resolution of the motions to dismiss.

February 11, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

appropriate should plaintiff prevail on his claims. Certainly, this Court
does not sit in appellate review of state court proceedings. See Coles v.
Granville, 448 F.3d 853, 858 (6th Cir. 2006).

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