City of Dayton, Ohio v. A.R. Environmental, Inc. et al

Filing 19

ORDER re 14 MOTION filed by Alex Penland, 16 MOTION to Stay - Defendant Penlands motion for a continuance (doc. 14 ) is DENIED; Defendant Penland is ORDERED to respond to Plaintiffs initial and amended motions to dismiss no later than M arch 30, 2012; Plaintiffs motion to stay discovery (doc. 16 ) is GRANTED. All discovery in this case is hereby STAYED pending the Courts ruling on Plaintiffs initial and amendedmotions to dismiss (docs. 9 , 15 ). Signed by Magistrate Judge Michael J Newman on 03/06/12. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CITY OF DAYTON,
:

Case No. 3:11-cv-383

:

District Judge Walter Herbert Rice
Magistrate Judge Michael J. Newman

Plaintiff,
-vs-

A.R. ENVIRONMENTAL, INC., et al.,

:

Defendants.

ORDER

There have been multiple claims asserted against a number of parties in this case. On
October 28, 2011, Plaintiff initiated this action against Defendants A.R. Environmental, Inc., Alex
Penland, and John Doe. Doc. 1. On February 2, 2012 pro se Defendant Alex Penland filed his
Answer, and asserted counterclaims against Plaintiff, as well as multiple cross against third parties.
Doc. 8. On February 7, 2012, Plaintiff moved to dismiss Defendant Penland’s counterclaims. Doc.
9. Defendant Penland subsequently amended his counterclaims on February 14, 2012, see doc. 12,
and Plaintiff filed a supplemental motion to dismiss on February 28, 2012. Doc. 15.
Now before the Court is pro se Defendant Penland’s motion “for continuance of Plaintiff[’s]
motion to dismiss.” Doc. 14. Pro se Defendant Penland appears to be concerned that, in ruling on
Plaintiff’s motion to dismiss, the Court will consider matters outside the pleadings and treat the
motion as one for summary judgment under Rule 56. Citing to Civil Rule 12(d), Plaintiff requests
the Court to stay its ruling on Plaintiff’s motion to dismiss for at least sixty days to give him an
opportunity to conduct discovery. See id.

Having reviewed Plaintiff’s motion to dismiss, the Court finds that it is unnecessary to stay
its ruling on the motion so that Defendant Penland can conduct discovery. The motion to dismiss
is on purely legal grounds, and the Court need not consider matters beyond the pleadings.
Therefore, Defendant Penland’s motion for a continuance (doc. 14) is DENIED. Defendant Penland
is ORDERED to respond to Plaintiff’s initial and amended motions to dismiss no later than March
30, 2012.
Also before the Court is Plaintiff’s request to stay discovery pending the Court’s ruling on
its motion to dismiss. Doc. 16. According to Plaintiff, Defendant Penland has already served
discovery on it. See id. As a preliminary matter, the Court notes that such discovery requests may
be in violation of Civil Rule 26(d), which prohibits parties from seeking discovery before their Rule
26(f) conference. Fed. R. Civ. P. 26(d)(1). Plaintiff asserts that it has not yet conferred with
Defendant Penland pursuant to Rule 26(f). See doc. 16 at PageID 175-76.
In light of the Court’s broad discretion to stay discovery, especially “where claims may be
dismissed based on legal determinations that could not [be] altered by any further discovery,”
Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300, 304 (6th Cir. 2003), the
Court concludes that it is appropriate to stay discovery pending resolution of the motion to dismiss
in this case. Plaintiff’s motion to dismiss presents only legal questions. Cf. Veracity Grp., Inc. v.
Cooper-Atkins Corp., No. 1:11-cv-526, 2012 U.S. Dist. LEXIS 5629, at *1-2 (S.D. Ohio Jan. 18,
2012). Accordingly, Plaintiff’s motion to stay discovery (doc. 16) is GRANTED. All discovery
in this case is hereby STAYED pending the Court’s ruling on Plaintiff’s initial and amended
motions to dismiss (docs. 9, 15).
IT IS SO ORDERED.
s/ Michael J. Newman
United States Magistrate Judge

March 6, 2012

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