1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 ESTATE OF STEPHEN DOURIS by its Case No. 2:22-cv-00371-RFB-EJY administrator, TINKA DOURIS; TINKA 5 DOURIS, individually; SCD, a minor, by and through his guardian, TINKA ORDER 6 DOURIS; IRD, a minor, by and through her guardian, TINKA DOURIS; CAD, a 7 minor, by and through her guardian, TINKA DOURIS; EARL DOURIS, 8 individually; DEBRA DOURIS, individually and TARA DOURIS, 9 individually,
10 Plaintiffs,
11 v.
12 CITY OF HENDERSON, a Political Subdivision of the State of Nevada; 13 HENDERSON POLICE DEPARTMENT, a Political Subdivision of the City of Henderson; 14 CHIEF THEDRICK ANDRES, individually and in an official capacity as Chief of Police of 15 the Henderson Police Department; OFFICER TRAVIS NUSBAUM, individually and in an 16 official capacity as an Officer of the Henderson Police Department; OFFICER DONALD 17 OKAMI, individually and in an official capacity as an Officer of the Henderson Police 18 Department; DOE OFFICERS I-X, inclusive; DOE INDIVIDUALS I-X, inclusive and ROE 19 ENTITIES I-X, inclusive,
20 Defendants.
21 22 Pending before the Court is Defendants City of Henderson, Henderson Police Department 23 Chief Andres, OFC. Nusbaum, and OFC. Okami’s Motion to Stay Discovery. ECF No. 25. The 24 Court has considered the Motion, Opposition, and Reply. 25 I. Background 26 This case arises from the death of Stephen Douris, which Plaintiffs claim occurred in 27 violation of Plaintiffs’ Fourth, Fifth, and Fourteenth Amendment rights. Defendants disagree and 1 scheduling order was submitted in this action. ECF Nos. 6, 12. Defendants’ Motion for Summary 2 Judgment asserts qualified immunity as a bar to all of Plaintiffs’ claims. ECF No. 6. 3 In their instant Motion Defendants seek a stay of discovery arguing “all of Plaintiffs’ claims 4 must be dismissed” as the decedent was armed with a “deadly weapon, acting erratically, ignoring 5 lawful commands, with[stood] … low-lethal 40 mm shot gun rounds, and rapidly advance[ed] … 6 on the officers ….” ECF No. 25 at 5. Defendants state “video evidence conclusively shows that the 7 Defendant Officers acted in complete uniformity with both Supreme Court and Ninth Circuit case 8 law.” Id. at 7. Defendants argues that the assertion of qualified immunity to all claims leads to a 9 stay of discovery in accordance with existing case law. Id. at 8. 10 Plaintiffs contend a stay of discovery will prevent them from having any opportunity to 11 conduct discovery or present expert testimony. ECF No. 27 at 2. Plaintiffs further contend there is 12 a question of fact regarding whether Defendants acted reasonably. Id. Plaintiffs’ Opposition to 13 Defendants’ Motion for Summary Judgment includes a Rule 56(d) request. ECF No. 20 at 7. 14 Plaintiffs’ argue that a declaration presented by Defendants in favor of summary judgment 15 “identifies key facts that remain in dispute and explains” why “Plaintiffs need to conduct discovery 16 to fully and adequately respond to Defendants’ Motion in accordance with FRCP 56(c) and (d).” Id. 17 Plaintiffs dispute that the video evidence to which Defendants point “conclusively establishes” 18 Defendant officers acted reasonably and are entitled to qualified immunity. ECF No. 27 at 2. 19 Plaintiffs aver the officers spoke to no one on the scene, created a dangerous situation by rushing the 20 decedent, and otherwise conducted a frantic response to the 911 call made by the decedent’s family. 21 Id. at 3. To more thoroughly refute Defendants’ contention that they acted reasonably under the 22 circumstances, Plaintiffs state they must be able to conduct discovery, including the use of experts 23 on the issue of, inter alia, excessive force. Id. at 4. Plaintiffs have retained an expert who spoke 24 with officers involved in the events underlying this action and whose opinions, Plaintiffs contends, 25 will be valuable and helpful to the trier of fact. Plaintiffs seek an opportunity to depose the individual 26 officer Defendants as well as a Rule 30(b)(6) witness. 27 1 II. Discussion 2 Generally, a dispositive motion does not warrant a stay of discovery. Tradebay, LLC v. eBay, 3 Inc., 278 F.R.D. 597, 601 (D. Nev. 2011). “The party seeking a stay . . . has the burden to show 4 good cause by demonstrating harm or prejudice that will result from the discovery.” Rosenstein v. 5 Clark Cnty. Sch. Dist., Case No. 2:13-cv-1443-JCM-VCF, 2014 WL 2835074, at *3 (D. Nev. June 6 23, 2014), citing Fed. R. Civ. P. 26(c)(1) (internal quotation marks omitted). Under certain 7 circumstances it is an abuse of discretion to deny discovery while a dispositive motion is pending 8 (Tradebay, 278 F.R.D. at 602) and, for this reason, a party seeking a stay of discovery carries the 9 “heavy burden of making a strong showing” why the discovery process should be halted. Turner 10 Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (internal quotation marks 11 omitted). When deciding whether to issue a stay, a court must take a “preliminary peek” at the merits 12 of the dispositive motion pending in the case. Buckwalter v. Nevada Bd. of Med. Exam’rs, Case No. 13 2:10-cv-02034-KJD-GWF, 2011 WL 841391, at *1 (D. Nev. Mar. 7, 2011). In doing so, the court 14 must consider whether the pending motion is potentially dispositive of the entire case, and whether 15 that motion can be decided without additional discovery. Tradebay, 278 F.R.D. at 602. 16 Moreover, even if discovery will involve inconvenience and expense, this is insufficient, 17 without more, to support a stay of discovery. Turner Broad. Sys., Inc., 175 F.R.D. at 556. Motions 18 to dismiss are frequently part of federal practice and “[a]n overly lenient standard for granting 19 motions to stay all discovery is likely to result in unnecessary discovery delay in many cases.” 20 Trzaska v. Int’l Game Tech., Case No. 2:10-cv-02268-JCM-GWF, 2011 WL 1233298, at *4 (D. 21 Nev. Mar. 29, 2011). Accordingly, “[a] stay of all discovery should only be ordered if the court is 22 ‘convinced’ that a plaintiff will be unable to state a claim for relief.” Tradebay, 278 F.R.D. at 603. 23 Qualified immunity “balances two important interests—the need to hold public officials 24 accountable when they exercise power irresponsibly and the need to shield officials from 25 harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. 26 Callahan, 555 U.S. 223, 231 (2009). Qualified immunity shields government officials “from 27 liability for civil damages insofar as their conduct d[id] not violate clearly established ... 1 U.S. 800, 818 (1982). For a constitutional right to be clearly established, “existing precedent must 2 have placed the ... constitutional question beyond debate.” Reichle v. Howards, 566 U.S. 658, 664 3 (2012) (internal quotation marks omitted). 4 Importantly, qualified immunity is “an immunity from suit rather than a mere defense to 5 liability.” Saucier v. Katz, 533 U.S. 194, 200 (2001) (internal quotation marks omitted), receded 6 from on other grounds by Pearson, 555 U.S. 223. For this reason, qualified immunity protects 7 government officials not only from liability but also from “the costs of trial” and “the burdens of 8 broad-reaching discovery in cases where the legal norms the officials are alleged to have violated 9 were not clearly established at the time.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal 10 quotation marks omitted).
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 ESTATE OF STEPHEN DOURIS by its Case No. 2:22-cv-00371-RFB-EJY administrator, TINKA DOURIS; TINKA 5 DOURIS, individually; SCD, a minor, by and through his guardian, TINKA ORDER 6 DOURIS; IRD, a minor, by and through her guardian, TINKA DOURIS; CAD, a 7 minor, by and through her guardian, TINKA DOURIS; EARL DOURIS, 8 individually; DEBRA DOURIS, individually and TARA DOURIS, 9 individually,
10 Plaintiffs,
11 v.
12 CITY OF HENDERSON, a Political Subdivision of the State of Nevada; 13 HENDERSON POLICE DEPARTMENT, a Political Subdivision of the City of Henderson; 14 CHIEF THEDRICK ANDRES, individually and in an official capacity as Chief of Police of 15 the Henderson Police Department; OFFICER TRAVIS NUSBAUM, individually and in an 16 official capacity as an Officer of the Henderson Police Department; OFFICER DONALD 17 OKAMI, individually and in an official capacity as an Officer of the Henderson Police 18 Department; DOE OFFICERS I-X, inclusive; DOE INDIVIDUALS I-X, inclusive and ROE 19 ENTITIES I-X, inclusive,
20 Defendants.
21 22 Pending before the Court is Defendants City of Henderson, Henderson Police Department 23 Chief Andres, OFC. Nusbaum, and OFC. Okami’s Motion to Stay Discovery. ECF No. 25. The 24 Court has considered the Motion, Opposition, and Reply. 25 I. Background 26 This case arises from the death of Stephen Douris, which Plaintiffs claim occurred in 27 violation of Plaintiffs’ Fourth, Fifth, and Fourteenth Amendment rights. Defendants disagree and 1 scheduling order was submitted in this action. ECF Nos. 6, 12. Defendants’ Motion for Summary 2 Judgment asserts qualified immunity as a bar to all of Plaintiffs’ claims. ECF No. 6. 3 In their instant Motion Defendants seek a stay of discovery arguing “all of Plaintiffs’ claims 4 must be dismissed” as the decedent was armed with a “deadly weapon, acting erratically, ignoring 5 lawful commands, with[stood] … low-lethal 40 mm shot gun rounds, and rapidly advance[ed] … 6 on the officers ….” ECF No. 25 at 5. Defendants state “video evidence conclusively shows that the 7 Defendant Officers acted in complete uniformity with both Supreme Court and Ninth Circuit case 8 law.” Id. at 7. Defendants argues that the assertion of qualified immunity to all claims leads to a 9 stay of discovery in accordance with existing case law. Id. at 8. 10 Plaintiffs contend a stay of discovery will prevent them from having any opportunity to 11 conduct discovery or present expert testimony. ECF No. 27 at 2. Plaintiffs further contend there is 12 a question of fact regarding whether Defendants acted reasonably. Id. Plaintiffs’ Opposition to 13 Defendants’ Motion for Summary Judgment includes a Rule 56(d) request. ECF No. 20 at 7. 14 Plaintiffs’ argue that a declaration presented by Defendants in favor of summary judgment 15 “identifies key facts that remain in dispute and explains” why “Plaintiffs need to conduct discovery 16 to fully and adequately respond to Defendants’ Motion in accordance with FRCP 56(c) and (d).” Id. 17 Plaintiffs dispute that the video evidence to which Defendants point “conclusively establishes” 18 Defendant officers acted reasonably and are entitled to qualified immunity. ECF No. 27 at 2. 19 Plaintiffs aver the officers spoke to no one on the scene, created a dangerous situation by rushing the 20 decedent, and otherwise conducted a frantic response to the 911 call made by the decedent’s family. 21 Id. at 3. To more thoroughly refute Defendants’ contention that they acted reasonably under the 22 circumstances, Plaintiffs state they must be able to conduct discovery, including the use of experts 23 on the issue of, inter alia, excessive force. Id. at 4. Plaintiffs have retained an expert who spoke 24 with officers involved in the events underlying this action and whose opinions, Plaintiffs contends, 25 will be valuable and helpful to the trier of fact. Plaintiffs seek an opportunity to depose the individual 26 officer Defendants as well as a Rule 30(b)(6) witness. 27 1 II. Discussion 2 Generally, a dispositive motion does not warrant a stay of discovery. Tradebay, LLC v. eBay, 3 Inc., 278 F.R.D. 597, 601 (D. Nev. 2011). “The party seeking a stay . . . has the burden to show 4 good cause by demonstrating harm or prejudice that will result from the discovery.” Rosenstein v. 5 Clark Cnty. Sch. Dist., Case No. 2:13-cv-1443-JCM-VCF, 2014 WL 2835074, at *3 (D. Nev. June 6 23, 2014), citing Fed. R. Civ. P. 26(c)(1) (internal quotation marks omitted). Under certain 7 circumstances it is an abuse of discretion to deny discovery while a dispositive motion is pending 8 (Tradebay, 278 F.R.D. at 602) and, for this reason, a party seeking a stay of discovery carries the 9 “heavy burden of making a strong showing” why the discovery process should be halted. Turner 10 Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (internal quotation marks 11 omitted). When deciding whether to issue a stay, a court must take a “preliminary peek” at the merits 12 of the dispositive motion pending in the case. Buckwalter v. Nevada Bd. of Med. Exam’rs, Case No. 13 2:10-cv-02034-KJD-GWF, 2011 WL 841391, at *1 (D. Nev. Mar. 7, 2011). In doing so, the court 14 must consider whether the pending motion is potentially dispositive of the entire case, and whether 15 that motion can be decided without additional discovery. Tradebay, 278 F.R.D. at 602. 16 Moreover, even if discovery will involve inconvenience and expense, this is insufficient, 17 without more, to support a stay of discovery. Turner Broad. Sys., Inc., 175 F.R.D. at 556. Motions 18 to dismiss are frequently part of federal practice and “[a]n overly lenient standard for granting 19 motions to stay all discovery is likely to result in unnecessary discovery delay in many cases.” 20 Trzaska v. Int’l Game Tech., Case No. 2:10-cv-02268-JCM-GWF, 2011 WL 1233298, at *4 (D. 21 Nev. Mar. 29, 2011). Accordingly, “[a] stay of all discovery should only be ordered if the court is 22 ‘convinced’ that a plaintiff will be unable to state a claim for relief.” Tradebay, 278 F.R.D. at 603. 23 Qualified immunity “balances two important interests—the need to hold public officials 24 accountable when they exercise power irresponsibly and the need to shield officials from 25 harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. 26 Callahan, 555 U.S. 223, 231 (2009). Qualified immunity shields government officials “from 27 liability for civil damages insofar as their conduct d[id] not violate clearly established ... 1 U.S. 800, 818 (1982). For a constitutional right to be clearly established, “existing precedent must 2 have placed the ... constitutional question beyond debate.” Reichle v. Howards, 566 U.S. 658, 664 3 (2012) (internal quotation marks omitted). 4 Importantly, qualified immunity is “an immunity from suit rather than a mere defense to 5 liability.” Saucier v. Katz, 533 U.S. 194, 200 (2001) (internal quotation marks omitted), receded 6 from on other grounds by Pearson, 555 U.S. 223. For this reason, qualified immunity protects 7 government officials not only from liability but also from “the costs of trial” and “the burdens of 8 broad-reaching discovery in cases where the legal norms the officials are alleged to have violated 9 were not clearly established at the time.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal 10 quotation marks omitted). 11 While whether an official is entitled to qualified immunity is “an essentially legal question,” 12 Crawford-El v. Britton, 523 U.S. 574, 589 (1998) (internal quotation marks omitted), and “should 13 be made early in the proceedings,” Saucier, 533 U.S. at 200, if the actions alleged by Plaintiffs are 14 not “actions that a reasonable officer could have believed lawful,” or if the actions that Defendants 15 claim they took differ from the actions alleged by Plaintiffs, “then discovery may be necessary” 16 before a “motion for summary judgment on qualified immunity grounds can be resolved.” Anderson 17 v. Creighton, 483 U.S. 635, 646 n.6 (1987). The district court has broad discretionary powers to 18 control discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). 19 A preliminary peak at Defendants’ Motion for Summary Judgment does not convince the 20 Court there is no issue that will be more accurately assessed, under the law on which Defendants 21 rely, following discovery. Thus, while Defendants’ summary judgment motion is thorough, the 22 Court’s preliminary peek does not lead to the conclusion that the motion can be decided without 23 providing Plaintiffs an opportunity to conduct any discovery at all. Said in sum, the Court is not 24 convinced Plaintiffs are unable to state a claim for relief. 25 However, the above said, full blown discovery is not appropriate at this time. Rather, limited 26 discovery specific to Plaintiffs’ stated goal of refuting Defendants’ claims on summary judgment, is 27 allowed by the Court. To this end, the parties must meet and confer regarding limited discovery. 1 || Defendants’ qualified immunity defense. This may include expert disclosures and depositions of tl 2 || same, as well as some other written and oral discovery. But, the Court stresses again that Plaintif 3 || must carefully consider what it is that they need in order to respond to Defendants’ qualific 4 || immunity claim. 5 || If. Order 6 Accordingly, IT IS HEREBY ORDERED that Defendants’ City of Henderson, Henders« 7 || Police Department Chief Andres, OFC. Nusbaum, and OFC. Okami’s Motion to Stay Discove 8 || (ECF No. 25) is GRANTED in part and DENIED in part. 9 IT IS FURTHER ORDERED that the parties must meet and confer to discuss □□□□□□□□□ 10 |} limited discovery in accordance with the directions provided above. 11 IT IS FURTHER ORDERED that the parties must file a proposed discovery plan at 12 || scheduling order addressing the limited discovery agreed upon within fifteen (15) days of the da 13 || of this Order. 14 IT IS FURTHER ORDERED that if the parties cannot agree on the scope of discovery, th 15 || shall file a status report with the Court within fifteen (15) days of the date of this Order identifyi 16 || the discovery they agree upon, if any, the discovery upon which they disagree, and brief explanatio 17 || regarding the basis for the contentions underlying the disagreement. Thereafter, the Court will eith 18 |} issue an order or set a hearing to consider the parties’ disagreement. 19 Dated this 13th day of September, 2022. 20 21 22 FLAYN ade 33 UNITED STATES MAGISTRATE JUDGE
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