FEIBUSH et al v. JOHNSON et al
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE WENDY BEETLESTONE ON 11/30/17. 11/30/17 ENTERED AND COPIES E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ORI C. FEIBUSH AND OCF HOLDINGS,
KENYATTA JOHNSON, PHILADELPHIA
LAND BANK AND CITY OF
Defendant, Philadelphia City Councilman Kenyatta Johnson, moves to stay discovery
against him and co-defendants Philadelphia Land Bank and the City of Philadelphia pending the
outcome of his motion to dismiss based on a defense of qualified immunity. Johnson has raised
his objections to participating in discovery at a Preliminary Pretrial Conference, in letters to the
Court, in a discovery conference call, and presently in a Motion to Stay Discovery. For the
reasons outlined below, Johnson’s Motion to Stay Discovery shall be denied.
At this stage in the litigation, only a brief recitation of the facts is necessary. Plaintiff Ori
C. Feibush and his company, OCF Holdings, LLC, assert that Johnson improperly asserted
himself into the Philadelphia Land Bank’s approval process concerning a proposal to develop a
parcel of land at 1138-42 S. 20th Street in Philadelphia, Pennsylvania, in order to prevent
Plaintiffs from winning the bid.
Defendants Johnson, the City of Philadelphia, and the Philadelphia Land Bank each
moved to dismiss claims against them. Johnson, alone, has asserted a defense of qualified
immunity as part of his motion to dismiss. At the urgent request of Johnson’s counsel during the
Rule 16 conference, given the outstanding issue of whether Johnson was protected by qualified
immunity, the Court issued a Scheduling Order prohibiting Plaintiffs from taking the deposition
of Johnson until after resolution of the motion. Plaintiff had already served three interrogatories
requesting simple answers such as the Councilman’s phone number. In view of the insignificant
burden of responding to those the interrogatories, the Court permitted those requests. It did,
however, instruct Plaintiffs not to serve any additional discovery on Johnson until a decision on
Subsequently, Plaintiffs subpoenaed Johnson’s cell phone company. Johnson requested a
discovery conference call to quash the discovery request, which was scheduled on November 21,
2017. On that date, Johnson also filed a Motion to Stay Discovery against him as well as the
other Defendants. On the conference call, counsel for Johnson requested an immediate stay of
discovery. Defendant Johnson has since submitted a letter to the Court in yet further support of
his request to stay discovery.
The Federal Rules of Civil Procedure do not expressly provide for a stay of discovery,
however, “[t]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket. . . . How this can be best done calls for the
exercise of judgment, which must weigh competing interests and maintain an even balance.”
Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936). A defense of qualified immunity is a
weighty interest supporting an exercise of the court’s discretion to stay discovery. See Harlow v.
Fitzgerald, 457 U.S. 800, 817-18 (1982) (concluding that “bare allegations of malice should not
suffice to subject government officials  to . . . broad-reaching discovery.”).
Qualified immunity is “intended to protect officials from the potential consequences of
suit, including distractions from official duties, inhibition of discretionary action, and deterrence
of able people from public service.” Thomas v. Indep. Twp., 463 F.3d 285, 291 (3d Cir. 2006).
As such, the Supreme Court has explained that a government official who acts with qualified
immunity is generally entitled to dismissal before the commencement of discovery. See Mitchell
v. Forsyth, 472 U.S. 511 (1985). The standard upon which to determine whether to stay
discovery in these instances strongly favors staying discovery until the qualified immunity issue
is resolved; however, the standard is permissive, leaving significant discretion to the district
courts. The Court in Mitchell stated that “such pretrial matters as discovery are to be avoided if
possible.” Id. at 526 (emphasis added). Contrary to Defendant Johnson’s position, the Supreme
Court has not articulated a categorical bar against discovery.1
Instead, a court must weigh the risk of prejudice and competing burdens when deciding
whether to stay discovery. “[T]he trial court must exercise its discretion in a way that protects
the substance of the qualified immunity defense . . . so that officials are not subjected to
unnecessary and burdensome discovery or trial proceedings.” Crawford-El v. Britton, 523 U.S.
574, 597 (1998). Here, unlike in Mitchell, or any other case Defendant Johnson cites, Plaintiff
has made claims against entities that have no defense of qualified immunity. Specifically,
Plaintiff makes claims against both the City of Philadelphia and the Philadelphia Land Bank.
Those claims will remain regardless of the outcome of Johnson’s qualified immunity defense.
Thus, a blanket stay against all defendants will merely delay discovery and potentially prejudice
In fact, the Court has explicitly recognized that discovery may be necessary against a government official who
invokes qualified immunity. “Discovery involving public officials is indeed one of the evils that Harlow aimed to
address, but neither that opinion nor subsequent decisions create an immunity from all discovery. Harlow sought to
protect officials from the costs of “broad-reaching” discovery, and we have since recognized that limited discovery
may sometimes be necessary. . . .” Crawford-El v. Britton, 523 U.S. 574, 593 n.14 (1998). Harlow illustrates that
Johnson’s argument that the Supreme Court has articulated a categorical bar in these situations is incorrect.
Plaintiff. And even if Defendant Johnson is entitled to qualified immunity, he will still be
subject to third party discovery requests given the nature of the allegations in the Complaint.
Furthermore, the current discovery requests do not unduly burden Johnson. In this case, this
Court has severely constrained discovery in order to eliminate these burdens. Plaintiff is not
permitted to take Johnson’s deposition or issue any further discovery requests to Johnson until
the qualified immunity issue is decided. See also Galarza v. Szalczyk, 2012 WL 627917 (E.D.
Pa. 2012) (refusing to grant stay of discovery where other claims will proceed regardless of the
outcome of a qualified immunity defense and where defendants are not unduly burdened by
Johnson asserts that Ashcroft v. Iqbal, 556 U.S. 662 (2009) requires a stay of discovery in
the present matter against all defendants, including the Philadelphia Land Bank and the City of
Philadelphia. The Court, in Ashcroft, stated that “[i]t is quite likely that, when discovery as to
the other parties proceeds, it would prove necessary for petitioners and their counsel to
participate in the process to ensure the case does not develop in a misleading or slated way that
causes prejudice to their position.” Ashcroft, 556 U.S. at 685. This dicta, found in the section of
the Supreme Court’s opinion dealing with appropriate pleading standards under Rule 8 of the
Federal Rules of Civil Procedure, does not change the longstanding practice of leaving to lower
courts the discretion to allow the parties to proceed with limited discovery. See also Galarza,
2012 WL 627917 at *2-*3 (observing that similar language from Ashcroft is dicta); Seeds of
Peace Collective v. City of Pittsburgh, 2010 WL 2990734, at *2 (W.D. Pa. 2010) (same);
Mendia v. Garcia, 2016 WL 3249485 (N.D. Ca. 2016) (same).2
An appropriate order follows.
BY THE COURT:
/s/Wendy Beetlestone, J.
WENDY BEETLESTONE, J.
Last, Johnson wrote a letter to the Court arguing that Oliver v. Roquet, 858 F.3d 180 (3d Cir 2017) compels the
Court to stay discovery. He stated that “[s]ince the district court ordered discovery to commence before deciding
whether the defendant had qualified immunity, the Third Circuit held that the defendant could immediately appeal
such an order and that the district court’s decision to permit discovery was an abuse of discretion.” The Third
Circuit, however, has held albeit in an unpublished decision that an order denying a motion to stay discovery
pending resolution of a qualified immunity defense is not immediately appealable. See Blake v. Government of
Virgin Isl. Dep’t of Hous. Parks, and Recreation, 198 Fed. App’x 216 (3d Cir. 2006). In Oliver, the district court
denied Defendants’ Motion for Summary Judgment based on qualified immunity without prejudice to renew it
following discovery. The Third Circuit held that, in doing so, the district court implicitly denied the defense of
qualified immunity by ordering discovery. “[I]mplicit denial of the Appellants’ immunity claims is sufficient to
confer appellate jurisdiction.” Oliver, 858 F.3d at 188. By contrast, this Court has not ruled on Johnson’s qualified
immunity defense. In fact, at Johnson’s request, the Court scheduled oral arguments on this issue, which has
delayed resolution of his motion to dismiss.
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