LABMD, INC. v. TIVERSA HOLDING CORP. et al

Filing 300

ORDER granting 298 Motion to Stay. This case is stayed in its entirety until further order of court. Signed by Chief Magistrate Judge Maureen P. Kelly on 12/20/17. (ard)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LABMD, INC.,
Plaintiff,

)
)
)

vs.

TIVERSA HOLDING CORP.formerly
known as TIVERSA, INC.; ROBERT J.
BOBACK;M.ERICJOHNSON;DOES
1-10,
Defendants.

)
)
)
)
)
)
)
)

Civil Action No. 15-92
Chief Magistrate Judge Maureen P. Kelly

Re: ECF No. 298

ORDER

Presently before the Court is a Joint Motion to Continue Stay and Incorporated Citations
to Law filed by Defendants Tiversa Holding Corp. ("Tiversa") and Robert J. Boback ("Boback").
ECF No. 298. Also before the Court is the Opposition to Defendants' Joint Motion to Continue
Stay filed by Plaintiff LabMD, Inc. ("LabMD"). ECF No. 299.
The instant iteration of the labyrinthine litigation between these parties began in January
2015, with a ten-count Complaint against thirteen Defendants. ECF No. 1. Following extensive
litigation of three Motions to Dismiss as to two Complaints, only part of one Count remains.
ECF No. 185. The sole remaining claim alleges defamation per se as to specific Defamatory
Statements 13 and 16. Id.
On August 29, 2017, this Court conducted an initial case management conference that
lasted one hour and eighteen minutes. During the conference a multitude of issues were raised by
both parties and addressed by the Court.

ECF No. 246.

Following the conference, a case

management/scheduling order was issued. ECF No. 247.

In the order, the Court permitted six

months of discovery and set a discovery deadline of January 29, 2018. Id.
Following the August 29, 2017, case management conference, the Court issued an order
referring this case to ADR in the form of mediation before Attorney Carole Katz to be concluded
by October 29, 2017. ECF No. 248.
On October 12, 2017, this Court conducted a status conference with counsel at which
time a number of issues were raised by counsel and discussed with the Court including: ediscovery and search terms/custodians, the production of insurance information, a consent order
and issues relative to best preparing the case for a successful mediation. ECF No. 285.
At no time during the Court conferences on August 29, 2017, or October 12, 2017, did
LabMD or its counsel ever complain to this Court that there had been any discovery misconduct
or abuse by Defendants or their counsel, nor did LabMD ever inform the Court that it intended to
file any claims against Defendants and their respective counsel.
On October 20, 2017, a mere eight days after the October 12 status conference, LabMD
filed yet another new lawsuit against Tiversa and Boback, docketed at Civil Action No. 17-1365
("the New Case"), and named Tiversa and Boback's legal counsel in the instant action as
defendants.

Specifically, LabMD named Reed Smith LLP and Jarrod D. Shaw, Esquire and

Clark Hill PLC and Robert J. Ridge, Esquire as defendants. In the New Case, LabMD alleges
"abusive litigation and wrongful use of civil proceedings" in two other lawsuits involving theses
parties: (1) an ongoing (but stayed) state defamation action in the Court of Common Pleas of
Allegheny County; and (2) a federal defamation action that was dismissed over three years ago
on November 4, 2014. ECF No. 288-1. Inexplicably, the Complaint in the New Case contains
allegations concerning discovery responses the instant case. Id.

2

~~

150-151.

On October 23, 2017, upon learning of the New Case, Tiversa filed an Emergency
Motion for a Telephonic Conference. ECF No. 288. A telephone conference was held that day,
ECF No. 293, following which the Court granted Defendants' Joint Motion to Postpone ADR,
ECF Nos. 290 and 294, and Defendants' Joint Motion to Stay, ECF Nos. 292 and 295. This case
was stayed through December 4, 2017. ECF No. 295. 1
On December 4, 2017, this Court held a status conference during which Defendants
informed the Court that they, and their counsel, intend to file motions to dismiss in the New
Case. ECF No. 296 at 2. Defense counsel also expressed their serious concerns that the filing of
the New Case was a purposeful attempt by LabMD and its counsel to interfere with the legal
representation of Tiversa and Boback by the law firms of Reed Smith and Clark Hill and their
attorneys.
In the instant Motion, Defendants request a stay of this case pending the Court's ruling on
the anticipated motions to dismiss filed on behalf of their counsel in the New Case. ECF No.
298. Defendants cite the significant effect on the instant litigation that the rulings on the motions
to dismiss will have, the relatively short length of time of the proposed stay and the lack of
prejudice to LabMD therefrom.

Id.

Defendants also cite the difficulty of proceeding with

discovery in this case while their responses to prior discovery are litigated in the New Case. Id.
In a short three paragraph response in opposition to the instant Motion, LabMD cites
excerpts from a 2014 conference in the federal defamation case and baldly asserts that "[t]here is
no reason for extending the stay and to do so will only serve to postpone the ultimate resolution

I

of this action." ECF No. 299. 2

I

1

That stay remains in effect until the disposition of the instant motion. ECF No. 296 at 2.
The previous case of Tiversa Holding Corp. and Robert J. Boback v. LabMD, Inc. and Michael J. Daugherty,
Civil Action No. 13-1296, was closed over three years ago on November 4, 2014.

2

3

I

The Court finds LabMD's concerns about the delay in resolution of this case to be
disingenuous, at best, given the timing of the filing of the New Case and its reliance on alleged
conduct in 2014. Significantly, the chilling effect that the New Case may have on Defendants'
ability to defend instant case is clear to this Court.
Accordingly, this Court finds that the length of stay requested is reasonable, that
Defendants and their counsel will suffer substantial hardship and inequity if required to move
forward with discovery in this case at this time and that good cause has been shown. As such,
the instant case will remain stayed.
AND NOW, this 20th day of December, 2017, Defendants' Joint Motion to Continue
Stay, ECF No. 298, is GRANTED. This case is STAYED in its entirety until further order of
court pending ruling on the motions to dismiss in the New Case. While the case is stayed, no
pending or new party or third-party discovery, subpoenas, depositions, interrogatories, document
request or any other procedures shall be conducted or issued.

BY THE COURT:

TE JUDGE

cc:

All Counsel of Record Via CM-ECF

4