Luellen v. Gulick et al

Filing 66

ORDER granting 60 Motion to Stay discovery Pending Disposition of Defendant Motion to Dismiss and/or Plaintiffs Motion for Limited Jurisdictional Discovery. Signed by Magistrate Judge John S. Kaull on 6/30/2011. (Copy pro se plaintiff/certified mail)(kd) (Additional attachment(s) added on 6/30/2011: # 1 Certified Mail Return Receipt) (kd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SCOTT ERIC LUELLEN,
Plaintiff,
vs.

CIVIL ACTION NO. 1:10CV203

ROBIN GULICK, individually,
HUNTLEY THORPE, individually,
KAREN HENDRICKS, individually,
JONATHAN CLARK, individually, and
GULICK CARSON & THORPE, PC,
Defendants.

ORDER/OPINION GRANTING DEFENDANTS’ MOTION TO STAY DISCOVERY

This matter is before the undersigned United States Magistrate Judge pursuant to Defendants’
Motion to Stay Discovery Pending Disposition of Defendant’ Motion to Dismiss and/or Plaintiff’s
Motion for Limited Jurisdictional Discovery [DE 60].
On December 10, 2010, Plaintiff, pro se, Scott Eric Luellen filed his Complaint in this Court
[DE 1]. That same date, he filed a Motion for Leave to Proceed in forma pauperis and a Motion
to Amend Defendants [DE 2 and 4, respectively]. Motion to proceed in forma pauperis was
granted on January 3, 2011, and initial filing fee was paid on January 24, 2011 [DE 12 and 14].
This case was referred to the undersigned United States Magistrate Judge on December 13, 2010 [DE
7]. Plaintiff amended his complaint to add Defendants Thorpe, Hendricks, and Clark, on March 11,
2011 [DE 21].
On May 11, 2011, Defendants filed their Motion to Dismiss for Lack of Jurisdiction [DE 37].

This motion is still pending.
On May 24, 2011, Plaintiff filed a Motion for Limited Jurisdictional Discovery [DE 44].
This motion is still pending.
Defendants’ Motion represents to the Court that Plaintiff served Requests to Produce and
Requests for Admissions on June 10 and June 23, 2011. A review of the record shows no
Certificates of Service filed for these discovery requests; however, Defendants attached copies of
the actual discovery requests as exhibits to their motion. The Certificates of Service on those
exhibits indicate Plaintiff did serve the requests by mail on those dates.
F.R.Civ.Pro. 26(d)(1) provides:
A party may not seek discovery from any source before the parties have conferred as
required by Rule 26(f), except in a proceeding exempted from initial disclosure under
Rule 26(a)(1)(B), or when authorized by these rules, buy stipulation, or by court
order.
Defendant’s Motion to Dismiss is still pending before the Court, and Defendants therefore
have not yet filed an Answer to Plaintiff’s Complaint. No scheduling order has therefore been
entered as yet, and the parties have not had their Rule 26(f) conference. Plaintiff’s discovery
requests are therefore premature.
Plaintiff has filed a motion to conduct limited jurisdictional discovery, which if granted,
would permit him to serve limited discovery requests on Defendants notwithstanding the rule cited
above. That motion, however, is also still pending and Plaintiff has therefore not been authorized
by the Court to serve any discovery requests at this time.
Defendants’ Motion to Stay Discovery Pending Disposition of Defendant’ Motion to Dismiss
and/or Plaintiff’s Motion for Limited Jurisdictional Discovery [DE 60] is therefore GRANTED.
Defendants are not required to respond to Plaintiff’s discovery requests at this time. No discovery

is to be propounded by either party until after the Rule 26(f) conference, unless upon further order
of the Court.
It is so ORDERED.
The Clerk of the Court is directed to send a copy of this Order to counsel of record, and to
Scott Eric Luellen, Plaintiff pro se by Certified United States Mail.
DATED:

June 30, 2011.

John S. Kaull
JOHN S. KAULL
UNITED STATES MAGISTRATE JUDGE