Golden et al v. Mentor Capital et al

Filing 107

MEMORANDUM DECISION granting 97 Motion to Quash and to stay Discovery. Signed by Magistrate Judge Brooke C. Wells on 07/12/17. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
GENA GOLDEN et al.,
Plaintiffs,

MEMORANDUM DECISION AND ORDER
GRANTING MOTION TO QUASH AND TO
STAY DISCOVERY

v.
Case No. 2:15-cv-176 JNP
MENTOR CAPITAL, INC. et al.,
District Judge Jill Parrish
Defendants.
Magistrate Judge Brooke Wells
Counter-claim Defendant Scott Van Rixel moves to quash discovery served upon him by
Defendants because “jurisdiction before this Court has not been established.” 1 On December 5,
2016, Van Rixel filed a motion to dismiss asserting a lack of personal jurisdiction. 2 That motion
is still pending before the Court.
Van Rixel argues he is not a party to this action until jurisdiction is established and
presumably until after the motion to dismiss is resolved. In the motion to dismiss Van Rixel
asserts that service was untimely and beyond the time allowed by Rule 4(m). 3 A third party
complaint was filed against Van Rixel on May 4, 2016. 4 A summons was issued on that same
date and that summons was personally served on Van Rixel November 15, 2016. 5 Third-Party
Plaintiff Mentor Capital, Inc. argues service of a summons “establishes personal jurisdiction over
the served party.” 6

1

Motion to Quash p. 2, docket no. 97.

2

Docket no. 79.

3

Motion to Dismiss p. 2, docket no. 79.

4

Docket no. 65.

5

Docket no. 72.

6

Op. p. 2, docket no. 102.

The court agrees with Mentor that the presumption is service of a summons establishes
personal jurisdiction over a served party, but this presumption relies upon timely service in
accordance with Rule 4(m) and is rebuttable. “Questions of jurisdiction should be resolved at the
earliest stages of litigation, so as to conserve the time and resources of the Court and the parties.
Thus, a stay of discovery during the pendency of a dispositive motion asserting a jurisdictional
challenge may be appropriate and efficient.” 7 The Supreme Court has noted the burdens that
discovery may cause when there are outstanding questions regarding absolute immunity. 8 Here,
there are no questions regarding absolute immunity but there are jurisdictional questions and
those questions from time to time may also warrant a stay of discovery. 9
Although the undersigned believes there are some serious questions regarding whether or
not Van Rixel attempted to avoid service, based upon the instant facts the court finds a
temporary stay of discovery toward Van Rixel is proper until the jurisdictional question is
resolved. The court will therefore grant the motion to quash and to stay discovery. 10 When the
question regarding jurisdiction is resolved Mentor may move the court to extend discovery as to
Van Rixel.
ORDER
It is therefore ordered that Counter-claim Defendant Scott Van Rixel’s Motion to Quash
and Stay Discovery until jurisdiction has been decided is GRANTED.
7

Am. Tradition Inst. v. Colorado, 2011 WL 3705108, at *2 (D. Colo. Aug. 23, 2011).

8

See Behrens v. Pelletier, 516 U.S. 399, 308 (1996).

9

See Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. Nev. 1989) (“[A] pending
Motion to Dismiss is not ordinarily a situation that in and of itself would warrant a stay of discovery. Common
examples of such situations, however, occur when jurisdiction, venue, or immunity are preliminary issues.”).

10

See Wyatt v. Kaplan, 686 F.2d 276 (5th Cir.1982) (district judge properly granted defendants' protective order
barring discovery prior to a decision on a pending motion to dismiss for jurisdictional defects); Sperberg v.
Firestone Tire & Rubber Co., 61 F.R.D. 70 (N.D.Ohio 1973) (discovery as to defendant partially stayed in patent
infringement case where venue would be improper if defendant had not been guilty of infringement in that particular
district).

2

DATED this 12 July 2017.

Brooke C. Wells
United States Magistrate Judge

3