Atlantic-Pacific Processing Systems NV Corp v. Plaut

• Court: District Court, D. Nevada
• Decided: April 20, 2022
• Docket: 2:21-cv-02060
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA

5 ATLANTIC-PACIFIC PROCESSING Case No. 2:21-cv-02060-JCM-NJK 6 SYSTEMS NV CORP, Order 7 Plaintiff(s), [Docket Nos. 90, 99] 8 v.

9 DANIEL PLAUT, et al.,

10 Defendant(s). 11 Pending before the Court is Defendant Plaut’s motion to stay discovery pending resolution 12 of his motion to dismiss. See Docket No. 90; see also Docket No. 70 (motion to dismiss). 13 Defendant Intrator filed a joinder to the motion to stay discovery pending resolution of his motion 14 to dismiss. Docket No. 71; see also Docket No. 63 (motion to dismiss); Docket No. 69 (corrected 15 image). The “Merchant Defendants”1 filed a joinder to the motion to stay discovery pending 16 resolution of their motion to dismiss. Docket No. 97; see also Docket No. 78 (motion to dismiss). 17 Plaintiff filed an omnibus response in opposition to the requests to stay discovery. Docket No. 18 101.2 Defendants filed replies. Docket Nos. 104, 106, 110.3 The motion to stay discovery is 19 properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully 20 below, the motion to stay discovery is GRANTED. 21 1 The Merchant Defendants consist of Defendants Baron Internet Marketers LLC; Yisroel 22 Baron; Jaybri Enterprises, LLC; Jason Briley; Malloria Marketing LLC; Mallori Lari; FDR Online Management LLC; Franklin Roye; Dan Consulting LLC; Danial Levent; NGOC Quality Web 23 LLC; NGOC Peterkin; GN Consulting Services, LLC; Giang Truong Nguyen; Pay Web Consulting Services, LLC; Payam Hendi; Hans Marketing LLC; Denis Chihan Su; MH Creative 24 Web, LLC; Michelle Hall; BNT Consulting LLC; Bichvan NGOC Thach; IOS Consulting Services, LLC; Ioannis Sanchez; CM Online Strategies, LLC; Carmen Moreno; Cmont Web 25 Services, LLC; Christopher Montigelli, The Hilliard Marketing Group, LLC; and Micah Hiller. 26 2 Plaintiff filed responses to the underlying motions to dismiss. Docket Nos. 76, 77, 96. 27 3 Defendants filed replies to the underlying motions to dismiss, as well as requests for judicial notice. See Docket Nos. 80-89, 100. Plaintiff also filed a motion to strike related to the 28 underlying motion practice. See Docket No. 103. 1 The Court has broad discretionary power to control discovery. See, e.g., Little v. City of 2 Seattle, 863 F.2d 681, 685 (9th Cir. 1988). “The Federal Rules of Civil Procedure do not provide 3 for automatic or blanket stays of discovery when a potentially dispositive motion is pending.” 4 Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 601 (D. Nev. 2011). Discovery should proceed 5 absent a “strong showing” to the contrary. Turner Broadcasting Sys., Inc. v. Tracinda Corp., 175 6 F.R.D. 554, 556 (D. Nev. 1997). Requests to stay discovery may be granted when: (1) the 7 underlying motion is potentially dispositive in scope and effect; (2) the underlying motion can be 8 decided without additional discovery; and (3) the Court has taken a “preliminary peek” at the 9 merits of the underlying motion and is convinced that the plaintiff will be unable to prevail. Kor 10 Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013). The Court is guided in its 11 analysis by the objectives in Rule 1 to secure a just, speedy, and inexpensive determination of 12 cases. Tradebay, 278 F.R.D. at 602. 13 A stay of discovery is appropriate here. The motions to dismiss are potentially dispositive 14 with respect to all appearing defendants.4 The motions to dismiss can also likely be decided 15 without the need to engage in discovery. Moreover, the undersigned’s evaluation of the motions 16 to dismiss reveals that they are sufficiently meritorious to justify a stay of discovery.5,6 17 4 The Court is puzzled by Plaintiff’s insistence that the motions to dismiss are only 18 potentially dispositive with respect to Defendants Plaut and Intrator. See, e.g., Docket No. 101 at 25. The Merchant Defendants filed their own motion to dismiss that, if granted, would be 19 potentially dispositive of the claims against them, too. See Docket No. 78. 20 5 Conducting this preliminary peek puts the undersigned in an awkward position because the assigned district judge who will decide the underlying motions may have a different view of 21 their merits. See Tradebay, 278 F.R.D. at 603. This “preliminary peek” at the merits of the underlying motions is not intended to prejudice their outcome. See id. As a result, the undersigned 22 will not provide a lengthy discussion of the merits of the underlying motions. Nonetheless, the undersigned has carefully reviewed the arguments presented in the underlying motions and 23 subsequent briefing. 24 6 Plaintiff argues that it should be afforded leave to amend in the event the motions to dismiss are granted. See, e.g., Docket No. 101 at 16, 22-24. The Court is conducting its analysis 25 based on the currently operative pleading and the arguments as to whether it is sufficient to survive. Particularly given the complex nature of this matter, the Court declines to speculate into whether 26 potential amendments might cure deficiencies that have not yet been identified by the district judge. To the extent the motions to dismiss are granted with leave to amend, an amended 27 complaint is filed, and dispositive motions are filed challenging that amended complaint, the parties may revisit whether the stay of discovery should continue based on the circumstances as 28 they exist at that juncture. 1 Accordingly, the motion to stay discovery is GRANTED. In the event resolution of the 2|| motions to dismiss does not result in the termination of this case, a discovery plan or joint status 3] report must be filed within 30 days of the issuance of such order(s). In light of this ruling, the 4! proposed discovery plan (Docket No. 99) is DENIED as moot. 5 IT IS SO ORDERED. 6 Dated: April 20, 2022 Re Nancy J:-Koppe 8 United States Magistrate Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28