Citynet, LLC v. Frontier West Virginia, Inc., et al.

Filing 80

MEMORANDUM OPINION & ORDER granting the 76 MOTION to stay discovery pending resolution of the defendants' motions to dismiss; directing that discovery in this matter is stayed pending resolution of the defendants' motions to dismiss. Signed by Judge John T. Copenhaver, Jr. on 10/19/2016. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CITYNET, LLC, on behalf of
the United States of America,
Plaintiff,
v.

Civil Action No. 2:14-15947

FRONTIER WEST VIRGINIA INC.,
a West Virginia corporation,
KENNETH ARNDT, individually,
DANA WALDO, individually, MARK
McKENZIE, individually, KELLY
GOES, individually, JIMMY GIANATO,
Individually, and GALE GIVEN,
individually,
Defendants.

MEMORANDUM OPINION & ORDER
Pending is a motion by all defendants in this matter to
stay discovery pending resolution of their respective motions to
dismiss, filed September 28, 2016.
The defendants request an order under Federal Rule of
Civil Procedure 26(c)(1) staying discovery until the motions to
dismiss are decided.

The plaintiff, Citynet, LLC (“Citynet”)

responded to the motion to stay discovery, on October 7, 2016,
opposing it, followed by the defendants’ reply on October 13,
2016.

Rule 26(c)(1) provides:
A party or any person from whom discovery is sought may move
for a protective order . . . .

The court may, for good

cause, issue an order to protect a party or person from . . .
undue burden or expense, including one or more of the
following: (A) forbidding the disclosure of discovery; (B)
specifying terms, including time and place, . . . for the
disclosure or discovery . . . .
Fed.R.Civ.P. 26(c)(1).

Under this rule, the court has the

authority to stay discovery pending the outcome of a dispositive
motion.

See Thigpen v. United States, 800 F.2d 393, 396-397 (4th

Cir. 1986).
A number of factors, none wholly dispositive, guide the
analysis under this rule for granting a stay pending the outcome
of a dispositive motion.

They are (1) the type of motion, (2)

whether the motion is a legal challenge or dispute over the
sufficiency of allegations, (3) the “nature and complexity of the
action,” (4) “whether counterclaims and/or cross-claims have been
interposed”, (5) whether other parties agree to the stay, (6) the
“posture or stage of the litigation”, (6) “the expected extent of
discovery in light of the number of parties and complexity of the
issues in the case”, (7) and “any other relevant circumstances”.
Bragg v. U.S., Civ. Action No. 2:10-0683, 2010 WL 3835080, at *1-2
2

(S.D.W. Va. Sept. 29, 2010) (quoting Hatchette Distribution, Inc.
v. Hudson Cty. News Co., Inc., 136 F.R.D. 356, 358 (E.D.N.Y.
1991)).
The defendants’ motions to dismiss could be dispositive
of the matter, and it is a legal challenge to the sufficiency of
Citynet’s claims.

There are no cross-claims or counterclaims and

all defendants join in the motion to stay.
The defendants argue that the nature and complexity of
the action and expected extent of discovery favor a stay given
that the complaint concerns “technical elements of broadband
infrastructure and complex and interconnected contracts between
private and public entities” and that discovery likely will be
costly and burdensome.

Memo. in Supp. of Mot. to Stay at 4.

Moreover, they argue that the action is in its early
stages, which favors a stay.

Indeed, the court has yet to enter a

scheduling order and the parties’ Rule 26(f) report is not due to
the court until October 27, 2016.
Finally, the defendants contend that because some of the
defendants argue that they are entitled to qualified immunity in
their motion to dismiss, a stay is particularly warranted in this
instance.

Id. at 5-6.

3

Citynet opposes the stay.

Citynet first argues that the

motions to dismiss cannot be decided as a matter of law because
numerous questions of fact are raised in the motions.
in Opp. to Mot. to Stay at 1-2.

Pl. Resp.

In addition, it states that the

motions are not likely to fully resolve the case, and that
discovery will not be overly burdensome given that many of the
documents that would be encompassed in discovery have already been
produced to other entities.

Id. at 2-3.

Citynet further argues

that it would be prejudiced by the delay given that the case was
filed more than two years ago, and remained under seal until June
28, 2016, while the United States exercised its right to determine
whether it would proceed with this case.

Id.

Citynet contends

that an additional delay would inhibit its ability to conduct
discovery from third parties.

Id. at 4.

Finally, Citynet

contends that a stay is not warranted due to some of the
defendants’ assertion of qualified immunity because the motion to
dismiss has been fully briefed without discovery and because it
has rebutted the qualified immunity defense in its response to the
motion to dismiss.

Id. at 4-5.

Having considered the applicable factors, particularly
in light of the assertion of qualified immunity by some of the
defendants, the court finds that a stay is warranted.

One of the

purposes of qualified immunity is to “free officials from the
concerns of litigation, including avoidance of disruptive
4

Plaintiff,
v.

Civil Action No. 15-14025

THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
discovery.” Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (internal
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
citations and quotations omitted). By first determining whether
a Massachusetts Corporation, and
DOES 1 THROUGH 10, inclusive,
any of the defendants are entitled to qualified immunity, the
Defendants.
court can ensure that these parties do not lose some of the
ORDER AND NOTICE
protections of that immunity by participating in discovery in the
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
intervening time. Furthermore, Citynet will not suffer any clear
following dates are hereby fixed as the time by or on which
certain events must occur:
hardship by waiting for a ruling on the motions to dismiss. A
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, few months any recovery it
stay would likely delay by only a memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
receives in this case.
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016
Last day for Rule ORDERS that the
Accordingly, the court 26(f) meeting. defendants’
02/15/2016
Last day to file Report of Parties= Planning
motion to stay discovery pending resolution of the defendants’
Meeting. See L.R. Civ. P. 16.1.
motions to dismiss, filed September 28, 2016, be, and it hereby
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd further ORDERED that discovery in this before
is, granted. It is United States Courthouse in Charleston, matter
the undersigned, unless canceled. Lead counsel
directed to appear.
be, and it hereby is, stayed pending resolution of the defendants’
02/29/2016
Entry of scheduling order.
motions to dismiss.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to transmit this order to all
The Clerk is requested to transmit this Order and
counsel to all counsel any record and to any unrepresented
Notice of record and of unrepresented parties.
parties.
ENTER: October 19, 2016
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

5